(OpEd By Jim Waters, who is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at firstname.lastname@example.org and @bipps on Twitter.)
Gov. Andy Beshear’s abundance of executive orders – more than 150 since COVID-19 surfaced – is matched only by the largeness both of his good intentions and the unintended upheaval wrought by those edicts.
During the first three months of this pandemic, more than 970,000 working Kentuckians filed unemployment claims – representing the second-highest percentage of a state’s workforce filing for jobless aid in the nation.
Many continue to struggle to find some semblance of recovery from the economic bruising suffered from Beshear’s well-meaning but disastrous lockdown of the commonwealth, which continues in the form of mask, spacing and capacity mandates.
The governor claims the ends justify the means.
His ends, of course.
He insists his actions “saved thousands of lives,” suggesting individual Kentuckians left to deal with the coronavirus using their ends – making decisions based on what’s best for their families and businesses – would have utterly failed to protect their fellow citizens.
That’s not the Kentucky I know.
Also, ignoring legislative leaders before using such massive power isn’t in the Kentucky Constitution and law I know.
During oral arguments at the Kentucky Supreme Court regarding the legality of Beshear’s actions, Solicitor General Chad Meredith noted the need for balance.
“Is the governor powerless to address COVID-19? No,” Meredith said.” Does that mean he can do whatever he wants? No.”
It would be wrong to deny Kentucky’s governor the ability to take decisive action during an emergency.
It’s far more dangerous, however, to leave undefined the length, breadth and depth of such all-encompassing powers.
The fact that Beshear failed to reach out and work with legislators, who, by virtue of their geographic diversity and various districts, are closer to the commonwealth’s citizenry and therefore have a much-better understanding of both needed policies as well as consequences of the governor’s crackdown, should send more than one red flag scurrying up the Supreme Court’s flagpole of constitutional concern.
Our representative republic rests upon a Constitution which insists on shared power between three branches.
Kentucky’s founders understood that even with the best of intentions, flawed men and women – which we all are – need the restraint and accountability offered by constitutional requirements to share, check and balance that political power.
Yet Beshear has for most of this year reserved much of the commonwealth’s legislative, legal and executive control unto himself while branding those who even question this consolidation of clout as “reckless” or – as he labeled Attorney General Daniel Cameron – “irresponsible.”
Former Gov. Matt Bevin’s abuse of the chief executive’s pardoning authority offers another reminder of the need to restrain power given to any one individual.
Again, it’s not about intentions – Beshear’s or Bevin’s.
It’s about the consequences of their actions.
“One of the great mistakes is to judge policies and programs by their intentions rather than their results,” said the late Nobel laureate Milton Friedman.
It certainly would be a “great” blunder for lawmakers to allow the upcoming General Assembly session to skuttle by without balancing the obvious need for a governor to take decisive action during emergencies with limitations ensuring Kentucky doesn’t end up with one politician making critical decisions resulting in lengthy and lifetime impacts on 4.5 million of his fellow citizens.
It would also be a serious error in judgment for Supreme Court justices not to carefully consider how their counterparts in Michigan were concerned enough about the tipping of the equilibrium of authority away from the legislative to the executive branch to step in and declare unconstitutional a 1945 law used by Gov. Gretchen Whitmer to overstep her temporary emergency clout.
It also would be a misstep for them not to engage and protect the integrity of the commonwealth’s constitution and its balance of power, which is designed and intended to protect Kentuckians in both pandemics and prosperity.