LOUISVILLE, Ky. — In a unanimous decision on Friday, the Kentucky Supreme Court issued an order that keeps any executive orders made by Governor Andy Beshear in place, regardless of previous or future injunctions by lower state courts, pending their own review.
The 7-0 decision in favor of the order is an unusual decision according to Sam Marcosson, a constitutional law professor at the University of Louisville. He said it’s unusual because Kentucky’s Supreme Court doesn’t usually step in during ongoing litigation by lower courts. Normally it waits to make decisions when a case lands on their desk.
However, for this temporary order, the Kentucky Supreme Court invoked section 110 of the Kentucky constitution, which gives the highest court in the Commonwealth power to issue orders necessary in aid of its official power to reverse legal decisions.
“The court wants to make sure that its ability, if it sides with the governor, to make an effective affirmance of his orders isn’t a moot point because the epidemic will have gotten out of control at that point,” Marcosson explained.
Marcosson said invoking section 110 shows how serious the Supreme Court takes the case.
“And how seriously it viewed the implications of striking down the governor’s orders,” he told Spectrum News 1.
This new order, however, isn’t the final decision. The Kentucky Supreme Court stated Friday it wants the lower courts to continue hearing the cases from each side, which creates a record for the Supreme Court to review when the case finally makes its way to their court house.
“But in the meantime, anything those lower courts do will be will be automatically stayed so the governor’s orders will stay in effect," Marcosson said.
So executive orders like wearing a mask in public, the flexibility for schools to use non-traditional instruction and the limit on capacity at restaurants, bars, and retail stores stays in place, along with any other orders that lower courts have tried to stop.
Chapter 39A of Kentucky’s constitution grants broad emergency powers to the governor during states of emergency, like seizing, taking or condemning property. The one right that is explicitly stated the governor can not take away is the second amendment.
“So by implication if the general assembly said you cannot do this one thing, and we will put that thing off limits, that is seize guns, then other things by implication were left open for the governor to do. Action that he could take, like requiring masks. If the general assembly wanted to put that off-limits they knew how to do it. We saw that they knew how to do it when it came to guns,” Marcosson said. He added that the Kentucky Supreme Court will only decide if the governor has the power to enact these executive orders by law or not during the pandemic.
Marcosson also said there is a possibility the Kentucky Supreme Court can say, yes, Beshear has the power to enact this executive order, but he needs to do A, B, and C prior, such as requiring a declaration from a local public health department in Kentucky prior to an executive order taking effect.
“It’s hard to say that that will happen, but it could and then the governor wouldn’t be stripped of the power, and the court wouldn’t be saying he exceeded his power; he just needed to follow a certain procedural step first,” Marcosson said.
The question of whether or not 39A gives too much power to the governor during a state of emergency isn’t for the Kentucky Supreme Court to decide, Marcosson said. That’s in the hands of the general assembly.
It’s important note that the Kentucky Supreme Court only issued a stay on executive orders that have been or could be injuncted by state courts. Any executive orders reversed by the federal courts, such as allowing in-person church services, remains intact because those decisions were made based off of the federal constitution.
Marcosson believes the cases relating to Beshear’s executive orders during the pandemic will make its way to the Kentucky Supreme Court by the end of this year.