Judge hears arguments in showdown between Beshear, lawmakers


FRANKFORT, Ky. (AP) — A temporary court order blocking a new Kentucky law restricting the governor's authority to combat COVID-19 was being extended Thursday, as a judge reviews the constitutional showdown between Republican lawmakers and Democratic Gov. Andy Beshear.

After a four-hour hearing, Franklin County Circuit Judge Phillip Shepherd said he would extend the restraining order and hopes to rule within about 10 days on competing motions. One motion seeks an injunction blocking GOP-backed laws reining in Beshear's executive powers in times of emergency. Another motion seeks to dissolve the order in place against one of the measures.

The restraining order is currently blocking a measure that would allow Kentucky businesses and schools to comply either with COVID-19 guidelines from Beshear's administration or the federal Centers for Disease Control and Prevention — whichever standard is least restrictive.

Another new law being challenged by Beshear would limit his executive orders in times of emergency to 30 days unless extended by lawmakers. It applies to orders restricting schools, businesses and religious gatherings or imposing mandatory quarantine or isolation requirements.

Under that measure's 30-day timeline, the governor's current pandemic-related executive orders are set to expire in early March, said his general counsel, Amy Cubbage.

Shepherd said he wants to rule before then, and he asked lawyers to provide him a list of all executive orders and emergency regulations that would expire under measures being challenged.

The judge continued to urge the competing sides to find "common ground" to resolve the dispute, which he said is rooted in a "communications gap."

"It has almost universally, up until recently, been the case that public health issues have been dealt with in a nonpartisan way," Shepherd said.

The high-stakes case revolves around two separate sets of issues, the judge said. One is the effect the new laws would have on the state's response to the pandemic, he said.

"The urgent need to have an effective response to a pandemic is an extremely important consideration for the court," the judge said.

The other issue revolves around the balance of power in state government and whether Beshear's coronavirus-related orders put "an undue burden on certain segments of the public," Shepherd said.

"In this case, we have the intersection of these political questions with regard to the distribution of powers of government, that have come head on in conflict with the public health response to a pandemic," he said.
GOP legislators argue the governor overreached with restrictions on businesses and individuals. The governor maintains the steps he took to limit activity during the pandemic have saved lives.

Beshear sued immediately, seeking a court order striking down the new laws after the GOP-dominated legislature voted to override his vetoes of the measures.
Kentucky's public health commissioner, Dr. Steven Stack, testified at Tuesday's hearing that the measures would "functionally render me powerless" in combating the ongoing pandemic.

Defending the Beshear administration's response to the public health crisis, Stack said: "There are clearly things we wish could have been done differently or we had more options. But I do assert we tried in good faith to keep the most number of people safe in Kentucky."

The other new law being challenged by Beshear would give legislative committees more oversight and control over the governor's emergency administrative regulations.

It's the latest round of court fights over Beshear's response to the pandemic. Last year, Kentucky's Supreme Court upheld the governor's authority to issue coronavirus-related restrictions on businesses and individuals to try to contain the spread of COVID-19.


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David Arvin

In a hearing to dissolve a restraining order in Franklin Circuit Court, Judge Phillip Shepherd remarked, “It has almost universally, up until recently, been the case that public health issues have been dealt with in a nonpartisan way.” He is correct in that observation. Until recently, however, there has never been anything approaching the level of government curtailment of every aspect of society. Churches, schools, businesses, transportation, and even social gatherings have all been minimized or even shut down completely. These efforts have probably saved many lives but the other consequences have been catastrophic. Jobs lost, businesses closed, learning in schools interrupted, drug addiction, alcoholism, suicides, domestic abuse, lost tax revenue, all of them threatening to unravel the fabric of our society. It is no wonder that this public health issue has become a political issue.

So what are the competing political views. Democrats believe the shutdowns and mandatory masks will save lives and that is their overarching goal. Maybe it has saved lives.

Republicans believe the preservation of our social and economic order should be paramount in our decision making, even if some lives are lost on account of maintaining the status quo.

There are also serious constitutional issues in this debate but those will not be examined here.

So who is right? A look at our history will provide some insight. Whenever our national security has been threatened, Americans have always done whatever is necessary to protect our way of life. Many lives have been lost. Eisenhower did not hesitate to send Allied troops up the beaches of Normandy for fear a lot of men would be killed. We have never hesitated to build dams and bridges because some people would likely die in the process.

We are now under attack by an invisible enemy and we must realize there will be casualties along the way. These casualties can be reduced by wearing of masks and people maintaining social distancing whenever possible. But if our if our children are to develop normally, if our economy is to continue strong, if our people are to maintain their mental and physical health, we must tolerate the casualties and deaths that COVID inevitably brings.

Friday, February 19

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