Governor Andy Beshear (D-KY) thinks that his executive orders should be obeyed unquestioningly, but it looks like he is about to get legally slapped down again. From the Louisville Courier-Journal:
A Boone Circuit Court judge indicated Thursday night that he will side with Kentucky Attorney General Daniel Cameron in his attempt to block Gov. Andy Beshear’s past and future coronavirus-related emergency orders, officials say.
A copy of the order from Boone Circuit Judge Rick Brueggemann was not yet available Friday morning.
But Cameron, a Republican, said in a statement early Friday that the judge indicated he will sign an order requiring Beshear, a Democrat, to “follow the legal process when taking executive action.” . . .
Beshear spokeswoman Crystal Staley told The Courier Journal on Friday morning that Brueggemann indicated “he would void all of the orders the governor has issued to keep us safe.”
The Governor will, of course, appeal. Still, there’s a massive sense of schadenfreude among Republicans in the Bluegrass State, because when he was Attorney General, Mr. Beshear frequently used the courts to try to stymie then-Governor Matt Bevin (R-KY).
The Governor does have an avenue open to him. The General Assembly is not in session currently, and will not be again until next January. However, the Governor has the authority to call for a special session of the legislature to deal with the COVID-19 situation.¹ But, as we have previously noted, the Governor has no intention of doing so:
Beshear was asked at Friday’s (July 10, 2020 — Editor) news conference on COVID-19 why he has not included the legislature in coming up with his orders. He said many state lawmakers refuse to wear masks and noted that 26 legislators in Mississippi have tested positive for the virus.
Mr. Cameron, along with the leaders of the House and Senate of the General Assembly, all Republicans, had indicated a willingness to work with the Governor, but the Governor declined to consult with them.
Back to the Courier-journal:
“This ruling provides much-needed relief to Kentucky businesses that joined us in challenging the governor’s notion that he has absolute power apart from the law,” Cameron said in the statement that was released shortly after midnight. “This ruling does not hamper the ability of public health officials to ensure the safety and well-being of Kentuckians.”
Cameron added that public health experts testified in court Thursday that “they have the tools they need to regulate public health and fight the coronavirus without executive orders from the governor.”
“While Gov. Beshear’s legal team stated in court that there are no limits on his power, our Constitution, state law and the judge at today’s proceedings said otherwise,” Cameron continued.
I’d like to see a transcript in which the Governor’s lawyers made that claim.
As we noted previously, Governor Beshear’s motion to have the state Court of Appeals vacate previous restraining orders against him was rejected, so now the Governor has appealed to the state Supreme Court to uphold his emergency orders, but at least thus far that Court has not indicated whether it will take up Mr. Beshear’s request.
Why doesn’t Governor Beshear call the General Assembly into special session to deal with the issues? It’s simple: both Houses of the state legislature are controlled by Republicans, and the Governor might have to do something radical like compromise, might not get all that he wants, and petty dictators don’t like that. But what he might get would at least be backed by the force of state law, and the Governor’s Führerbefehle have been getting shot down in the courts due to lack of proper procedure rather than violations of state law. The Governor is personally popular in the Bluegrass State right now; even though the legislature is controlled by Republicans, they have some incentive to support Mr. Beshear’s proposals.
But, if the Governor is personally popular and enjoys majority support for his actions, not everybody agrees. The Governor issued his mandatory face mask order because he did not believe enough Kentuckians were voluntarily complying with his previous requests that they wear masks in public. You don’t do what I ask, and, by God, I’ll order you to do it!
There’s a line in the chorus of Sunshine by Jonathan Edwards: “He can’t even run his own life; I’ll be damned if he’ll run mine.” I think that’s the way a lot of Kentuckians feel.
¹ – The state legislature cannot call itself back into session.
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