Throughout the past 18 months, I joined fellow legislators, constitutional officers, and many local officials across the state in calling for the Governor to stop acting alone in adopting policies to address this pandemic. On Saturday, Aug. 21, his autocratic approach came to a screeching halt when the Kentucky Supreme Court ruled that the Kentucky General Assembly had the authority to limit any governor’s emergency powers, stating clearly that only the legislature can make laws.
From the beginning, our primary issue with the handling of this pandemic has been about the process used. This is not because we want to be governor or take his power away. Instead, it is because he was using emergency powers granted to him by previous legislatures to act as the legislative, judicial, and executive branch of our government. Decisions were made in a silo, with little to no input by folks who may have disagreed or proposed an alternative to the approach taken. As a result, we saw inconsistent and arbitrary policies that left most Kentuckians confused and made people even more distrustful of the state’s motivations.
The governor’s actions were declared legal by the Kentucky Supreme Court last fall, based on emergency powers laws granted governors by previous legislatures. We knew from that ruling that the laws had to be refined in a way that provides a governor the ability to navigate a short term, regional emergency. So that is what we did. For all intents and purposes, a governor now has a 30-day window and limited authority to act. However, there is far more accountability, and it is now abundantly clear that his authority ends where other branches are concerned.
Since the Aug. 21 Supreme Court ruling, the most common question I hear is “where do we go from here?” It has been a long, frustrating 18 months. The Supreme Court opinion states clearly that a governor must do the “hard work” of working with the legislature. We have already begun that hard work and now have an opportunity to work together to do what we should have been doing all along. It is unfortunate it took lawsuits to make this happen, but nevertheless we will work through this to do what is right for our commonwealth.
Last week, members of legislative leadership met with the Governor and began working with the administration and other stakeholders to identify what we’ll see coming out of special session. There does not appear to be support for a statewide mask mandate. Overall, most agree that a one-size-fits all policies may be easier to enact, but they do not work as well as allowing local entities the authority and resources they need to make the decisions that best serve their communities.
Of course, we have already passed COVID-related legislation. In the early days of the pandemic, we passed SB 150 and SB 177, which provided necessary flexibility to our schools, medical professionals, and manufacturers making PPE. This session we approved HB 1, which provides a framework for businesses, school, nonprofits and other organizations to operate under, as well as ensuring children in state care get to see their families.
During the 2021 Regular Session, we passed a resolution that many think will provide a precedent for us moving forward. HJR 77 ratified some of the emergency orders and regulations issued by the Governor and state agencies. To craft HJR 77, we went through every single order and regulation to determine if it was necessary and beneficial — a tedious but incredibly important process.
As we prepare for a special session, I think you will see us adopt the same approach. We are going to be careful, considerate, and deliberate. We are also going to listen to the administration and other interested parties — including our constituents. We may not always agree, but the result is certain to be better. Why? Because that is how a government for the people and by the people is supposed to work.
As always, I hope you will feel free to contact me with any questions or issues. I can be reached here at home anytime or through the toll-free message line in Frankfort at 1-800-372-7181. Please feel free to email me at Richard.Heath@lrc.ky.gov.