As lawyers and protesters argue about his powers, Beshear says he’ll see how in-person classes go before relaxing capacity rules

Solicitor General Chad Meredith argued for Attorney General Daniel Cameron before the Kentucky Supreme Court Thursday. At left is Latasha Buckner, Gov. Andy Beshear’s general counsel and chief of staff. (Photo by Ryan C. Hermens, Lexington Herald-Leader)
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By Al Cross
Kentucky Health News

As lawyers and protesters argued about his emergency powers, Gov. Andy Beshear said he is unlikely to relax any of his restrictions on business and venue capacity until most students and teachers are in schools for a while.

Beshear said person-to-person contacts are “going up significantly” as schools have resumed athletic events and some have restarted in-person classes. “Because of that we are not likely to increase capacity in different areas” until the state can ensure that relaxed rules would pose no increased risk for students and teachers, he said.

Beshear has recommended that in-person schooling not resume until Sept. 28, and has issued a guide to help local school officials make decisions about classes and athletic events, based on the prevalence of coronavirus cases in their county.

The governor announced 628 more cases of the virus in Kentucky, 76 of them in people 18 and younger. He said that was less than on recent Thursdays, but noted that the mortality rate of the covid-19 disease caused by the virus means that several of those people will die. He announced 11 more covid-19 deaths.

The share of Kentuckians testing positive for the virus remained under 4 percent, at 3.82%. “It’s not because we are testing folks that we do better, it’s because of our actions,” he said. “We believe that mask mandate is working, and without it, our positivity rate would go up.”

Beshear’s July 9 order that masks be worn in public, and a host of other orders, was issued under the state of emergency that a law allows him to declare to protect the public from a long list of “major hazards,” including ētiological hazards, which cause disease. The Kentucky Supreme Court heard arguments Thursday in cases challenging the legality and constitutionality of his orders.

Attorney General Daniel Cameron’s case against Beshear was argued by Solicitor General Chad Meredith, who said he didn’t think the emergency law “was intended to deal with general disease control; we have an entire statute that deals with that . . . The emergency powers are to allow for immediate response. . . . We’re now dealing with a more general disease control,” which would require Beshear to issue administrative regulations after public comment.

Beshear’s general counsel and chief of staff, LaTasha Buckner, said Meredith was arguing “form over substance” because a general law allows Beshear to issue emergency regulations without a comment period or legislative review, as long as they are “rationally based.”

Meredith said, “Process is what separates the rule of law from the despotic rule of one man,” Meredith said, adding later, “It’s the seriousness of this matter that counsels in favor of using a more deliberative process.” He twice quoted Health Commissioner Steven Stack’s description of the orders as having “breathtaking scope and implication.”

The seven justices did not indicate when they would rule. “The hearing comes after the high court took control of two challenges in lower courts where judges ruled against Beshear’s orders, but Thursday’s hearing involved only a decision from Boone Circuit Court,” the only one in which a judge has issued a final order,” reports Deborah Yetter of the Courier Journal.

Protesters at State Capitol (CJ photo by Deborah Yetter)

“The hearing began as a noisy crowd gathered outside on the Capitol lawn, few wearing masks and some toting firearms, protesting such executive orders and demanding freedom,” Yetter reports. “They had mostly dispersed by the end of the 90-minute hearing.” The speakers included legislators and candidates.

Beshear said of the court case, “I still can’t believe that these rules and restrictions have been challenged,” because they are “supported by the White House, by public-health experts at every level with almost 100 percent agreement,” and “just about every governor” has taken similar actions. “They’re the difference in how fast the virus spreads and how many people die.”

As for the argument that his emergency powers have gone on too long, he said, “I can’t stop a worldwide health pandemic.”