Attorney general asks court to block all of governor’s covid-19 pandemic orders, calling them arbitrary and unconstitutional

Kentucky Health News chart; daily case numbers may have been adjusted slightly

By Melissa Patrick
Kentucky Health News

As coronavirus cases in Kentucky kept trending upward — hitting the highest seven-day rolling average of 413 — Democratic Gov. Andy Beshear chastised Republican Attorney General Daniel Cameron for asking a judge to block all of his executive orders under the covid-19 state of emergency.

“I’m going to do what it takes to protect the people of Kentucky, but folks, this is wrong,” Beshear said at a news conference. “It is really, really wrong. Don’t play politics with the lives of people.”

Cameron’s motion was filed Wednesday in Boone Circuit Court, with the same judge who recently issued a restraining order blocking attendance limits at automobile racetracks and class-size limits at child-care centers. Judge Richard Bruggemann asked for additional filings, and said he wouldn’t issue a ruling until next week, WKYT-TV reports.

Beshear is acting under a 1998 law giving the governor special powers in a public-health emergency, but Cameron says the governor’s orders are unconstitutional because they “are not narrowly tailored, and are thus an arbitrary and unreasonable burden on the inherent and inalienable rights of the people.” It cites the 1891 Kentucky Constitution, which says “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”
Cameron argues that Beshear is being arbitrary with a “one-size-fits-all approach” that doesn’t differentiate among counties with widely varying infection rates, that he has gone farther in some cases than the emergency law allows, and that he has been inconsistent in his orders and enforcement. It also argues that the emergency law is an unconstitutional delegation of authority by the legislature.

Beshear referred to Cameron’s motion as “possibly the gravest threat that I’ve ever seen since we started this” pandemic. He said Cameron seeks to overturn “every single order that we have put in place to protect people . . . and to not allow my office or me to put any orders in in the future that would help protect you and everyone else. . . . It’s truly frightening.”

He said that with no emergency rules, “There is no chance of getting kids back to school, we will lose over $10 billion in our economy, and many Kentuckians will die. I hope everyone understands how scary and reckless this is,” Beshear said on Twitter.

Beshear and Cameron are pictured after the former
appointed the latter to succeed him in December.

Cameron later tweeted that Beshear has failed to collaborate with his office or with Republican legislators “to make sure that covid-19 restrictions balance public health with the law.” He added, “This is not about the governor’s policies, it’s about making sure he follows the law.”

Beshear said at a news conference that if this motion is allowed, “It means people would die.” He added, “This would remove the authority that virtually every other governor is using to battle this virus; it would result in a spike. There’s no question, if there’s no rules, you don’t have to socially distance, you don’t have to sanitize your hands, the virus spreads.”

Beshear said that in addition to removing such requirements, Cameron’s request would void expanded workers’ compensation for covid-19 victims and his waivers of insurance rules requiring co-payments, deductibles, cost-sharing and testing fees.

Democratic leaders in the Republican-controlled legislature issued a statement saying, “It is difficult to fathom why anyone, much less our chief law-enforcement officer, would want to take such drastic action. The law, however, is clear: The General Assembly has granted broad emergency powers to the governor, and we reinforced that during the final days of this year’s legislative session.”

House Speaker David Osborne, R-Prospect, told the Lexington Herald-Leader, “We can’t have a discussion on how our state has reacted to covid-19 without recognizing that it is possible to question the constitutionality or legality of the orders put into place while still respecting that we can and should be following the recommendations of medical professionals.”

Cameron’s motion quoted from a deposition given by state Health Commissioner Steven Stack, in which he said Beshear’s orders “are based upon a ‘value judgment’ involving a ‘weighted risk-benefit analysis,’ which asks whether the activity being regulated is “necessary to . . . human activity.” Stack also said he and Beshear “would like to keep people away from each other so that they don’t spread infection, but there are counterbalancing considerations in society,” such as “human commerce and social engagements.”

Cameron argues, “Constitutional requirements are other such counterbalancing considerations. The defendants have had to amend their public-health orders over time, as courts have determined that the restraints imposed by those orders were constitutionally impermissible. At this point, only the governor and his political appointees are engaged in and aware of these balancing and counterbalancing considerations and the ‘value judgments’ made in striking that balance. It is the governor and his political appointees that purport to make these determination free from any notice or comment from the 4.5 million Kentuckians those decisions affect.”

Appearing on Kentucky Sports Radio, Beshear called Cameron’s motion “reckless” and “unbelievable,” Joe Sonka reports for the Louisville Courier Journal. “We in Kentucky and in America are at war with covid-19 and the attorney general wants to come collect all of our ammunition and say ‘good luck with the enemy,'” Beshear said.

Beshear and Cameron are involved in court actions on several fronts.
On Tuesday, Beshear asked the Kentucky Supreme Court to uphold his executive orders in both the Boone County case, as well as one in Scott County that involved agri-tourism businesses. A Court of Appeals judge had refused to stay those orders, which would have allowed Beshear to reimpose the his rules while the case is on appeal.

Scott Circuit Judge Brian Privett held a hearing Thursday afternoon on Cameron’s request that he decide whether the governor’s mask order violated a temporary restraining order that Privett issued last week.

WKYT reports that Privett made no ruling, but rejected Beshear’s argument that he should be disqualified because of his political relationship with Agriculture Commissioner Ryan Quarles, a plaintiff in the lawsuit. Privett said he had met Quarles maybe five times, and “I have never had dinner, lunch, a personal phone call with Quarles.”

Covid-19 update

Today, Beshear announced 413 new cases of the coronavirus, down from 477 yesterday, but the increase over the past week took the seven-day average to 413, a new high.

“What we are seeing across the country is alarming. We are seeing state after state not just facing escalating cases, but facing devastation,” Beshear said, pointing to Florida, which has run out of ICU beds and Arizona and Texas, which are bringing in refrigerated trucks to serve as morgues.

“That ought to convince everybody of the seriousness of the situation we face and what a critical moment right now is,” he said. “There’s nothing that means that we can’t end up like any of those states if we don’t do the right thing.”

Recommendations to thwart the disease remain the same, increased hand hygiene, social distancing, testing and most importantly, for everyone to wear a mask when they are out in public or in groups that don’t include those who live in the same household.

The head of the Centers for Disease Control and Prevention told the Journal of the American Medical Association on Tuesday that the nation could get the pandemic under control in one to two months if all Americans wear face coverings in public spaces. WLEX-TV reports.

Five more people have died from the virus, bringing the state’s death toll to 650. They were a 91-year-old woman from Fayette County; a 59-year-old man and a 90-year-old woman from Knox County; and an 83-year-old man and a 92-year-old woman from Jefferson County.

Long-term-care facilities continue to be hit hard with the virus, with 51 more residents and 47 more staff testing positive and three more residents dying from it.

Kentucky’s total number of cases is at least 21,083. Beshear said 13 of the newly infected on today’s lost were under five years old, a record. “These kids are counting on us to do the right thing,” he said. “Our new cases come from all types of counties. And remember, deaths follow cases.”

The positive-test rate is up to 4.38 percent. “Once it gets to 5 percent, it’s of real concern,” Beshear said.

In other covid-19 news Thursday:

  • Counties with the most new cases on the state’s daily report included Jefferson, 69; Ohio, 25; Boone, 22; Warren, 20; Kenton, 17; Graves, 15; Fayette and Muhlenberg, 12 each; and Bell and Casey, 11 each.
  • Fayette County, which follows a different reporting schedule, reported 69 new cases Thursday, the second-highest number in a single day. Those testing positive are markedly younger, Sarah Michels reports for the Herald-Leader. The Lexington-Fayette County Health Department reports that 31 percent of the county’s total cases have been found in the last 15 days. “We understand that people are tired of covid-19; there’s definitely a fatigue among the population,” health department spokesman Kevin Hall said. “But it’s not going away and is, in fact, getting more widespread in Lexington.”
  • Beshear urged Kentuckians with outstanding unemployment claims to answer their phone, saying about half of calls are going unanswered. The number is (502) 333-9130.
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