As society grapples with the evolving nature of the COVID-19 pandemic, public policy disagreements about the government’s response are spilling over into legal challenges, not only between affected citizens and public agencies, but also between executive and legislative branches of state government. These latter conflicts transcend debates over the wisdom and efficacy of specific COVID-19 policies and speak to a more fundamental question: which branch of government gets to set policy?

In Kentucky, this question arose amidst a tug-of-war contest between the state’s Democratic governor and its Republican-dominated legislature over the governor’s emergency powers. The Kentucky Supreme Court recently resolved this issue in Cameron v. Beshear.[1]

A Kentucky state law, KRS Chapter 39A, authorizes the governor to declare a state of emergency and to assume broad powers to respond to dire threats to public safety.[2] On March 6, 2020, Kentucky Governor Andy Beshear used that authority to declare a state of emergency relating to the COVID-19 pandemic.[3] Since then, his administration has directed the state government’s efforts to abate the public health threat, including by compelling the closure of businesses[4] and houses of worship[5] and requiring the use of masks[6] and social distancing.[7]

Some of the state’s actions have been challenged in court. Early in the pandemic, courts curtailed some restrictions, particularly those imposed on religious practice.[8] However, in Beshear v. Acree, the court held that the emergency powers set forth in KRS Chapter 39A do not violate the separation of powers provisions in the Kentucky Constitution.[9] Nevertheless, the court foreshadowed legislative and judicial battles to come by recognizing that the General Assembly was free to roll these powers back.[10]

Acree set the stage for the 2021 Regular Session of the General Assembly almost two months later, when the legislature passed four laws curbing the governor’s emergency powers.[11] House Bill 1 allowed most businesses to remain open for in-person services despite the state of emergency.[12] Senate Bill 1 limited many COVID-19-related executive orders to 30 days unless extended by the General Assembly, prevented the governor from renewing expired executive orders, and curbed the governor’s emergency power to suspend statutes by requiring the approval of the attorney general.[13] Senate Bill 2 similarly placed a 30-day limit on regulations of in-person meetings and quarantine rules.[14] And House Joint Resolution 77 terminated several COVID-19 executive orders, including one requiring masks in public settings, and extended others.[15] The Kentucky House and Senate adopted each of these measures over the vetoes of Governor Beshear.

Governor Beshear challenged these enactments in court, arguing that they irreparably impaired his inherent authority under the Kentucky Constitution to respond to the pandemic. After the trial court enjoined the implementation of the new laws, the Kentucky Supreme Court, taking the case on direct appeal, unanimously rejected that proposition, finding that Kentucky law limits the executive branch to those powers specifically enumerated in the Constitution or in statutes: “[T]he Governor has no implied or emergency powers beyond that given him by the legislature, who, as elected officials, serve at the behest of the Commonwealth.”[16] The court also reiterated its longstanding holding that in the realm of policymaking, the legislature is supreme: the “executive branch exists principally to do [the General Assembly’s] bidding.”[17]

The Kentucky Supreme Court’s ruling in Cameron instructed the lower court to dissolve the injunction, allowing House Bill 1, Senate Bill 1, Senate Bill 2, and House Joint Resolution 77 to go into effect.[18] As part of its ruling, the court upheld the attorney general’s veto over the governor’s power to suspend statutes as “a valid exercise of the General Assembly’s authority.”[19] But it left the fate of the 30-day limit on emergency executive orders to another day since the issue had not been adequately briefed.[20]

Two justices concurred by a separate opinion. Justice Lisabeth Hughes, joined by Chief Justice John Minton, wrote separately to highlight “serious constitutional questions” concerning the time limits on emergency executive authority as set forth in Senate Bill 1.[21] The justices seemed to be particularly concerned that a 30-day limit on the governor’s emergency powers might be inconsistent with existing constitutional structure, which strictly limits the duration of legislative sessions and confers considerable discretion on the governor to call special sessions of the General Assembly.[22] Justice Hughes implored the trial court to address these questions with the benefit of briefing by the governor and the attorney general.[23]

What does this mean for the balance of powers between Kentucky’s executive and legislative branches, and for the state’s response to emerging variants of COVID-19? First, Cameron strengthens the General Assembly’s predominance over setting policy for the Commonwealth—even in an emergency. The legislature already enjoyed the structural advantage of being able to override the governor’s veto by a simple majority in both chambers. While the governor can act under KRS Chapter 39A to avert crises, without any claim to “implied” emergency authority, the governor is largely powerless to prevent a determined legislative majority from overriding executive actions with which it disagrees when the legislature convenes in its regular sessions. The General Assembly is largely free to limit or expand emergency powers, block or extend particular executive actions, or to chart an entirely different course, as it sees fit. Though, as mentioned above, some recently enacted legislative limits on emergency powers still need to be sorted out, it is unlikely that controversial mandates will long endure without the buy-in of the General Assembly.

It remains to be seen whether, in the long run, Cameron will usher in a new era of executive-legislative cooperation, which some legislators urged early on in the pandemic and which Justice Hughes urged in her concurring opinion. But recent events have already put that prospect to the test. On September 4, 2021, Governor Beshear called a special session of the General Assembly to address the COVID-19 pandemic.[24] The special session revealed areas of common ground for the governor and the General Assembly, but it also exposed where they part ways. With the governor’s approval, the legislature extended to January 15, 2022, the executive order declaring a state of emergency and more than 60 other executive orders and administrative actions,[25] and it directed federal funds[26] for COVID-19 testing and the development of monoclonal antibody treatment centers, among other things.[27] But it also blocked key priorities of the Beshear Administration by nullifying regulations mandating masks in public schools and childcare settings.[28] And it prohibited any similar statewide mask mandates until 2023.[29] As with House Bill 1, Senate Bill 1, Senate Bill 2, and House Joint Resolution 77 from earlier in the year, the General Assembly took these actions over Governor Beshear’s veto.



[1] Cameron v. Beshear, __ S.W.3d __, 2021 WL 3730708 (Ky. 2021).

[2] See, e.g., KRS 39A.090; KRS 39A.100.

[3] Executive Order No. 2020-215 (March 6, 2020).

[4] See, e.g., Executive Order No. 2020-246 (March 22, 2020).

[5] See, e.g., Order (March 19, 2020).

[6] See, e.g., Executive Order No. 2020-931 (Nov. 4, 2020).

[7] See, e.g., Executive Order No. 2020-243 (March 18, 2020).

[8] See, e.g., Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (enjoining the enforcement of orders prohibiting drive-in church services so long as congregants adhere to certain public health requirements); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (same); Danville Christian Academy, Inc. v. Beshear, 503 F. Supp. 3d 516 (E.D. Ky. 2020) (enjoining enforcement of executive order prohibiting all in-person instruction at public and private schools); On Fire Christian Center, Inc. v. Fischer, 453 F. Supp. 3d 901 (W.D. Ky. 2020) (enjoining the enforcement of an order prohibiting individuals from attending drive-in religious services).

[9] 615 S.W.3d 780, 805-13 (Ky. 2020).

[10] Id. at 812-13 (“While the authority exercised by the Governor in accordance with KRS Chapter 39A is necessarily broad, the checks on that authority are . . . judicial challenges to the existence of an emergency or to the content of a particular order or regulation; legislative amendment or revocation of the emergency powers granted the Governor; and finally, the ‘ultimate check’ of citizens holding the Governor accountable at the ballot box.”) (emphasis added).

[11] Bruce Schreiner, Kentucky high court upholds governor’s powers to fight virus, Assoc. Press, Nov. 12, 2020, https://apnews.com/article/kentucky-coronavirus-pandemic-courts-58bccf785f63666fdcb25ca2f043c016.

[12] House Bill 1, § 1 (2021 Regular Session).

[13] Senate Bill 1, §§ 2, 4 (2021 Regular Session).

[14] Senate Bill 2, § 22 (2021 Regular Session).

[15] House Joint Resolution 77, §§ 1, 2,3, 4 (2021 Regular Session).

[16] Cameron, 2021 WL 3730708, at *8.

[17] Id. at *7 (quoting Brown v. Barkley, 628 S.W.2d 616, 623 (1982)).

[18] Id. at *12 (“[C]onsidering that the challenged legislation was lawfully passed, the Governor’s Complaint does not present a substantial legal question that would necessitate staying the effectiveness of the legislation.”)

[19] Id. at *10.

[20] Id. at *9.

[21] Id. at *13 (Hughes, J., concurring).

[22] Id.

[23] Id.

[24] Proclamation by Andy Beshear, Governor of the Commonwealth of Kentucky (September 4, 2021).  

[25] House Joint Resolution 1 (2021 Special Session).

[26] Kentucky law generally requires the General Assembly to authorize the expenditure of funds received from the federal government. See KRS 48.160 (“Each branch, by budget unit, shall submit in its budget recommendation a request for funds reasonably necessary to match anticipated federal funds which may become available during the biennium. The amount of anticipated federal funds shall also be specified.”); KRS 48.300(1) (“The financial plan for each fiscal year as presented in the branch budget recommendation shall be adopted, with any modifications made by the General Assembly, by passage of a branch budget bill for each branch of government, and any revenue and other acts as necessary.”).

[27] Senate Bill 3, § 1 (2021 Special Session).

[28] Senate Bill 1, §§ 1, 2 (2021 Special Session).

[29] Id.; Senate Bill 2, §§ 10, 11 (2021 Special Session).

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