Constitutional debate over governor’s COVID-19 emergency orders

FRANKFORT, Ky. (WTVQ) — There’s a constitutional law debate underway in Kentucky after a republican state lawmaker from Dry Ridge filed an amendment to a bill that would allow Kentuckians to sue the state over the governor’s emergency coronavirus measures.

“Isn’t this silly? At a time where we’re all supposed to be in this together, we’re all supposed to be doing our duty and we’re all supposed to be doing what it takes to respond to this worldwide pandemic,” says Governor Andy Beshear in a press conference Sunday.

Republican Representative Savannah Maddox’s proposal would limit the scope of the governor’s executive orders issued during a public health emergency and allow people to sue the state if such an order hurts their business.

“Well, I’m trying to save peoples lives and if somebody doesn’t understand that or somebody doesn’t care, I don’t really have a reaction for them. But, I’m going to continue to do the right thing. People can put an amendment, let the whole world sue me. I used to be a lawyer, I can handle that,” says the governor.

UK Law professor Joshua Douglas says the governor is acting within his constitutional authority.

“A lot of constitutional law is a balance between the rights of individuals and the need for the government to act to prevent harm or to uphold health and welfare and when you’re in the situation of a global pandemic, it makes sense that the constitution would give more authority to the government to act to help, to protect health and safety and welfare,” says Douglas.

He says the law gives the governor wide authority to act during an emergency.

“If after this people want to look back and say we were overly aggressive, that’s a reality I look forward to because it means our people were safer than what we anticipate is coming,” says Beshear.

Rep. Maddox, in her Facebook post, wrote “We cannot allow the consequences to become worse than the virus itself.”

“Is there an argument that he’s exceeded constitutional powers? And I believe the answer is no, based on the actions he’s taken and courts’ understanding of what the constitution limits in an emergency situation like a pandemic,” says Douglas.

This all may be a moot point because there’s only a few days left in the current legislative session and Maddox’s bill remains in a House Committee.

Maddox sent us these statements: “We should all be willing to abide by the precautions and recommendations set forth by the CDC and other public health officials. However, we must also bear in mind that we cannot allow the consequences of our preventive measures to surpass the goal of recovery that we all share. We, individually and as a Commonwealth, have an obligation to look out for others and to approach this crisis in a way that mitigates the risk of spreading communicable disease, but also doesn’t result in unnecessary economic hardship and dire unintended consequences.”

“Yesterday, Governor Beshear reminded Kentuckians that he is an attorney who is well-accustomed to lawsuits. On that fact, I would agree with him given that he sued the Commonwealth a multitude of times costing millions of taxpayer dollars when he held the office of Attorney General.

I am uncertain as to whether the amendment will pass this Session, but this legislation has the potential to cause the Governor to rethink his existing orders shutting down businesses and other groups. In a lot of cases, businesses were closed without thinking about whether it had to happen or if something less restrictive could have been done.

For instance, take chiropractors, physical therapists, optometrists, and dentists. These entities provide critical care for some patients and they are closed. Could they re-open by wearing masks and other personal protective equipment- and by disinfecting and taking appointments only, without causing a public risk?

If the governor stops and takes the time to think about what he is doing, the very existence of the amendment may force him to re-evaluate the cost vs benefit of his actions. Benchmarks need to be put into place so that Kentuckians can be prepared to overcome this virus and allow our economy to recover.”

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