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Kentucky And Indiana Lawmakers Push To Reel In Governors' Emergency Powers

A sign on the lawn of the Kentucky State Capitol in response to the coronavirus pandemic
The Kentucky State Capitol on 4/9/20.

Lawmakers in more than 30 states, including Indiana and Kentucky, are seeking to limit unilateral COVID-19 emergency orders from governors.

The bills are a response to coronavirus restrictions that have been in place for nearly a year in many states. In Kentucky, the Republican-led legislature has already passed multiple bills targeting those orders in recent weeks. 

Senate Majority Floor Leader Damon Thayer said he disagrees with many of the actions taken by Democratic Gov. Andy Beshear during the pandemic.

“He should never have shut down restaurants and targeted bars and restaurants when he let a lot of other businesses remain open,” Thayer said. “There's no empirical evidence to prove that the spread of the COVID virus comes from bars and restaurants… The other action that we take a level of disappointment with would be the central shutdown of schools.”

The bills passed so far include House Bill 1, which would allow businesses and schools to operate if they comply with guidance from the Centers for Disease Control and Prevention. Franklin Circuit Court Judge Phillip Shepherd temporarily halted its implementation with a restraining order, citing concerns about a lack of uniform regulations throughout the state.

Senate Bill 1 would limit executive orders to 30 days unless extended by the legislature. It, like the other bills related to executive powers, was vetoed by Beshear, though all of those vetoes were overridden earlier this month.

Thayer said he wants to bring more transparency to the process of enacting restrictions.

“The governor and his or her experts would have to come before multiple legislative committees, and we could hear from other people who were affected by these potential executive orders during a state of emergency,” he said. “And I think then the governor could make a specific proposal to the General Assembly, and the people's branch of government would have a greater voice into whether or not these particular protocols will be allowed to be put in place.”

Beshear said last week that these efforts by the legislature will prevent the state from responding to emergency situations in a timely manner. He said the fight against COVID-19 is a war, and that wars aren’t “fought by committee.”

The governor’s office is in constant communication with public health officials, the White House and the scientific community – resources not readily available to all legislators, Beshear said at a press conference last week. If these powers aren’t centralized, he argued, it could slow the state’s response.

“These are hard decisions,” Beshear said. “I'm willing to make them. It's a lot harder to have over 100 people have to come to the same right, difficult decision, and people's lives depend on it.”

Not every state’s battle is along partisan lines, like in Kentucky. 

Indiana Gov. Eric Holcomb, a Republican, is also facing attempts to limit his power from the GOP-controlled General Assembly.

The legislature hasn’t passed any bills out of both chambers yet, though those in consideration include limiting how long executive orders can stay in effect and exemptions for some public settings.

The Indiana House passed a bill Tuesday that would prevent Holcomb from restricting religious services. The governor didn’t comment on the details of the bill at his weekly press conference, but he said his first concern is making sure all legislation is constitutional.

Holcomb said it’s important for governors to have the ability to respond quickly during emergencies, but he’s willing to work with legislators to share the reasoning behind his orders.

“It's just factoring in the local and the federal input, digesting it, then making decisions literally on a daily basis. I'm more than willing and wanting to share that info and express just why we made the decisions.”

Democratic State Rep. Rita Fleming, a doctor from Jeffersonville, said she doesn’t think the governor’s powers should be limited. Instead, she believes there is a middle ground that would call for more information to be shared on a regular basis without affecting the governor’s ability to respond.

Fleming believes a small faction is behind the efforts, and that most legislators on both sides of the aisle support Holcomb’s powers.

“Novel [virus] means it's new, and it means that we didn't know a lot about it,” Fleming said. “So I think that our public health officials and our governor absolutely did the best they could. It may have been seen as overreaching early on, but it was necessary to protect our citizens.”

John, News Editor for LPM, is a corps member with Report For America, a national service program that places journalists into local newsrooms. Email John at jboyle@lpm.org.