LOUISVILLE, Ky. — On Wednesday, a federal judge struck down Governor Andy Beshear’s executive order banning mass gatherings that he implemented March 19, 2020.
"If you think about it, the very nature of a pandemic threatens our liberty in every conceivable way. A perfect response would require everyone to stay put and limit contact with everyone else,” U.S. District Judge Gregory Van Tatenhove concluded in the 24-page ruling. “But that is not the world we live in. Policy makers are necessarily balancing interests. And courts should give them deference to do this difficult and important task. While that deference may be robust in a time of crisis it is not absolute. The Governor has gone too far here."
On May 10, 2020, Beshear announced churches, synagogues, mosques and other houses of worship could start in-person services while following guidelines. The news came less than two weeks before the scheduled lift on that ban that fell under his executive order on mass gatherings, due to a temporary restraining order granted by a federal judge.
On May 6, 2020, after a court ruling, Beshear revised the travel ban to more closely follow the guidance of neighboring states to better comply with the judicial findings.
On Wednesday, Beshear said Kentucky is in a plateau regarding the number of COVID-19 positive cases. However, with the majority of states across the U.S. now seeing spikes in numbers, if cases were to rise in Kentucky and Beshear wanted to reimpose these restrictions, can he with these court orders?
“Any governors power during the time of an epidemic to preserve public health and safety is actually quite broad,” UofL constitutional law professor Sam Marcosson said.
On the other side, the Commonwealth has also seen the checks and balance of powers at play with federal courts striking down some of Beshear’s executive orders.
Marcosson said that’s both a positive and a negative.
“The positive significance is that we always want a check on executive, or for that matter legislative, but in this case executive power, that that can be abused,” Marcosson said.
He said that’s especially the case during a time of an emergency when the constitution does give a governor and officials the authority to deal with an epidemic or another emergency.
“That’s great power, and great power can always be abused. So we want courts to be open for business. We want everyday citizens to be able to challenge those rulings to make sure the powers not abused,” Marcosson explained.
The negative, Marcosson said, is the effectiveness of power granted to accomplish goals that the power is given to achieve, from public order to public health, for example.
“And if these cases end up tying the hands of a governor or the president, in the case of involving federal power, then we might not be able to achieve the goals we want to achieve, and people will die and that’s troubling,” Marcosson said.
Under Kentucky’s phased reopening, the state’s economy is pretty much fully open starting Monday, June 29. If cases go up and Beshear wants to reverse course, Marcosson said the governor will have to go through the courts.
“If the governor wants to be cautious and make sure he is not running a foul of a court order would be to go to the court that issued it and ask for it to be modified,” Marcosson explained.
The professor said if the judge refuses to modify the order, Beshear can make a new executive order based on new evidence and allow someone to challenge like has been done to strike down previous bans in court.
If the judge denies the modification of a current stay or injunction the governor can then appeal based on freeing Beshear from a previous court ruling’s restrictions or modifying those restrictions so he could take the action he thinks is appropriate.
If Beshear ends up filing an appeal, Marcosson said that it can be a time-consuming process.
“The process of getting briefs filed, getting hearings, getting a court to rule can be lengthy one, but it can also be a pretty quick one,” Marcosson told Spectrum News 1, citing the restraining order made by then U.S. District Judge Justin Walker of Louisville that allowed drive-in church services allowed drive-in church services, despite Mayor Greg Fischer’s ban.
“His ruling in the religious worship case against Mayor Fischer happened within a day, so these proceedings can be expedited because of the importance of the issues and because of the time-sensitive nature of getting a ruling,” Marcosson explained.
Marcosson said normally the process of getting a final ruling on a case via the appellate process can take months or years.
“So if we are using that as a measuring stick, yes, I am very confident that, yes, the process will be done much more quickly than that. If we are measuring by what an epidemiologist might say is quick and rapid as a response to a public health emergency, which I think is more like hours or days to implement the steps that are necessary to save lives, then I am not quite as confident,” Marcosson said. He thinks the ruling would take somewhere between hours, days to weeks to get a final ruling.
If an appeal to these types of rulings is ever made it to the Kentucky Supreme Court, Marcosson thinks the decision would be ruled in the governor’s favor, based on necessary measures taken to prevent the spread of COVID-19 based on evidence.
“Which is not to say the governor is perfect. The governor made, I think with his first travel ban, for example, probably went further than the science justified, but it is to say that his first responsibility of courts in a situation like this is to defer to the authority and the judgments that a governor makes based on scientific evidence,” Marcosson said.
Ultimately, Marcosson said Kentuckians will have the final ruling at the polls as to whether Governor Beshear made too many restrictions or too few during the pandemic.