No one is above the law
Published 8:12 pm Wednesday, August 18, 2021
By now we are all aware that Governor Andy Beshear issued a statewide mask mandate for children over the age of two in public and private schools and child care settings. This kicked off a firestorm of protests from parents, school boards, and citizens who have grown weary of the Governor’s overreach. Frankly, as the person elected to craft laws on behalf of the people of the 39th House District, I find myself wondering how this administration can consistently act like it is above the law.
Before I go further, let me share that I believe there are two major issues to consider. The first, why the administration is flouting legislation enacted by the legislative branch of government, which is the only branch constitutionally authorized to make law. The second, why the governor and state board of education have failed to respect the authority of our local school boards. Does the governor actually think he can disregard the constitution and state law to act as the legislative, judicial, and executive branches of government?
We are all familiar with the controversy surrounding last year’s executive orders and emergency regulations. They resulted in multiple lawsuits and rulings in state and federal courts that found some of the Governor’s actions in violation of both the U.S. and Kentucky constitutions. However, the Supreme Court of Kentucky unanimously ruled that the governor’s actions were legal under the state’s emergency powers laws. As a result, legislators acted within hours of convening the 2021 Regular Session to redefine the state’s emergency powers to ensure current and future governors do not take advantage of a crisis to unilaterally dictate policies that carry the weight of law. The Governor vetoed the legislation (HB 1, HJR 77, SB 1, and SB 2), and then filed suit after we overrode his vetoes by an overwhelming majority on February 2.
Let me be clear, we strengthened the separation of powers, oversight, and accountability. HB 1, SB 1, and SB 2 strengthened state law to better reflect the separation of powers called for in our state constitution and empowered school boards, local governments, and other entities to take actions they deem necessary to best serve their constituencies. With the passage of HJR 77, we proved that the legislature could act swiftly to address emergencies by ratifying a handful of orders that were necessary to the state’s COVID response.
After more than six months, the Supreme Court of Kentucky has yet to act, leaving the enforcement of the laws we passed in limbo. Because of the Court’s inaction, the Governor is attempting to use the executive order to enact a statewide mask mandate for children over the age of two. This order is already being challenged. Just a day after the Governor’s announcement, Attorney General Daniel Cameron filed a response before the Kentucky Supreme Court urging the court to require the Governor to follow the laws passed by the General Assembly.
Now, the second issue at hand is the lack of respect for the authority and ability of our local school boards shown by the Governor and the state board of education. Prior to last week’s mask mandate, local school districts across the state carefully considered mandatory face coverings and made decisions regarding this issue. Many voted to require masks and face coverings, while others voted not to. Regardless of which direction they went, the decisions were made by local leaders closest to the people they represent and far more accessible and accountable to those who elected them. The Governor may not agree with their choices, but he must respect their authority. Instead, just hours before many districts were slated to open the 2021-2022 school year, he chose to issue an executive order with extremely questionable legal standing. On Thursday of last week, the state board of education added insult to injury by unanimously voting to approve an emergency regulation that could leave our school children masked until May of 2022. This vote was taken just minutes after their advisory council of superintendents asked to table the proposal and instead work with public health officials to develop a more tailored approach.
Legislative leadership immediately called a meeting of the Administrative Regulation Review Subcommittee to review and take any necessary action on the board of education’s emergency regulation, as well as one put forth by the Department for Public Health that applies to children in regulated child care facilities. Members of that subcommittee will meet on Tuesday, August 17 at the Capitol Annex.
As always, I can be reached here at home anytime, or through the toll-free message line in Frankfort at 1-800-372-7181. Feel free to contact me via email at Matt.Lockett@lrc.ky.gov. Also, visit the legislature’s website at legislature.ky.gov.
Matt Lockett is the 39th District Kentucky State Representative. His district includes parts of Jessamine and Fayette counties.