One Virus, Two Results: Contrasting the Judicial Response to COVID-19 in Michigan and Kentucky

Blog Post | 110 KY. L. J. ONLINE | July 31, 2021

One Virus, Two Results: Contrasting the Judicial Response to COVID-19 in Michigan and Kentucky

By: Samuel Weaver, Managing Articles Editor Vol. 110

I.     INTRODUCTION

On March 11, 2020, the World Health Organization labeled the emerging COVID-19 respiratory virus a pandemic.[1] In the months afterwards, states and local governments across the country implemented drastic measures restricting the movement of their citizens in an effort to “stop the spread” of the novel coronavirus.[2] In most cases, these orders came from state executives, often relying on rarely-used emergency powers.

As restrictions tightened and the pandemic dragged on, frustrated plaintiffs fought back in the courts. Some challenged the new restrictions under familiar provisions—usually the First Amendment’s free exercise and free speech clauses.[3] Others raised novel claims challenging the legal foundation of the restrictions themselves: emergency executive powers provisions. The litigation, though disparate and unpredictable, held one thing in common; it provided Americans with a fascinating case study in the unique American idiosyncrasy known as “federalism.” The Michigan and Kentucky Supreme Courts were perhaps the most dramatic examples.

On October 2, 2020, Michigan’s highest court rebuked Governor Whitmer’s use of executive power, declaring her without power to issue new orders and ruling a central emergency powers statute unconstitutional under the nondelegation doctrine.[4] Forty-one days later, Kentucky’s Supreme Court unanimously endorsed Governor Beshear’s use of his emergency powers, declining to rule the underlying statute unconstitutional under the same doctrine and nearly identical constitutional provisions.[5] The two governors’ executive orders were more similar than not, and the constitutional limitations and emergency powers statutes nearly identical. The different treatment, however, lies in the unique and idiosyncratic development of parallel bodies of law in the two states.

II.   MICHIGAN

Michigan Governor Gretchen Whitmer was a day ahead of the World Health Organization, first declaring a state of emergency on March 10, 2020. On April 1, 2020, she re-declared a “state of emergency” and “state of disaster” under two separate emergency powers statutes: the Emergency Management Act of 1976 (EMA), and the Emergency Powers of the Governor Act of 1945 (EPGA),[6] and requested that the legislature extend her order for 70 days.[7]

a.     Emergency Management Act of 1976

The EMA allows the governor to unilaterally declare a “state of emergency”[8] or “state of disaster”[9] at her sole discretion. The governor can act by executive order or proclamation, and the ensuing declared emergency or disaster continues “until the governor finds that the threat or danger has passed,” or the emergency otherwise ends.[10]

There is a catch. Both the disaster and emergency provisions contain a strong proviso: all orders or proclamations issued under the EMA may not last for longer than 28 days without consent of the legislature. The EMA provides that, “[a]fter 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.”[11] The “disaster” statute contained in the prior subdivision is in all ways identical, with “disaster” simply substituted for “emergency.”[12] This constitutes a significant limitation on the governor’s power to act.

b.    Emergency Powers of the Governor Act of 1945

Born out of the Detroit race riots of 1943, the EPGA is in many ways repetitive of the EMA, but with a different emphasis. In 1943 Governor Harry Kelly was faced with an impossible choice during the riots: declare martial law—thereby removing police authority to act—or rely only on standard law enforcement tactics and personnel.[13] He sidestepped the catch-22 entirely, opting for an extralegal emergency declaration and the use of State Troops.[14] Recognizing the need for emergency powers in situations of sudden violence, the legislature passed the EPGA two years later.[15]

The EPGA differs from the EMA primarily by historical context. While the EMA is a general statute, the EPGA focuses on “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency.”[16] However, the key language allows the governor to act on any “reasonable apprehension of immediate danger . . . when public safety is imperiled.”[17] Reasoning that public safety was imperiled by the immediate danger of the COVID-19 respiratory virus, Governor Whitmer issued EO 2020-33.

Once triggered, the EPGA allows the exercise of truly awesome powers. The governor is empowered to issue any order “he or she considers necessary,” including limiting the movement of people in the affected area and their assembly in public, all public and private transportation, the sale of alcohol, and the storage or use of any material “deemed to be dangerous to public safety.”[18] The actions must only be “reasonable” and “necessary.”[19]

The legislature doubled down on this broad grant of power, explaining that the “legislative intent [was] to invest the governor with sufficiently broad power of action . . . to provide adequate control over persons and conditions during . . . disaster” and that courts should respect that goal.[20] All orders promulgated under the EPGA are effective for as long as the governor wishes.[21] Governor Whitmer’s April 1, 2020 emergency declaration relied on both the EMA and EPGA.[22]

c.     The Legal Challenge

Recognizing that the EMA required legislative approval for a longer order, Governor Whitmer requested an extension from the legislature. They partially complied, but only extended the order through April 30, 2020, allowing it to expire thereafter.[23] Governor Whitmer rescinded her legislatively extended orders on their expiration date, and then reissued identical orders on the same statutory grounds.[24] A sly move, but ultimately unsuccessful.

Midwest Institute of Health and three other plaintiffs sued the governor in U.S. District Court over these reissued orders, arguing that they violated the EMA, and alternately that the EPGA was an unconstitutionally overbroad delegation of powers.[25] The District Court certified the core questions to the Michigan Supreme Court.[26]

Writing for the Court, Justice Markman held that the governor lacked authority to reissue identical orders under the EMA to sidestep the legislature’s decision and that the EPGA was unconstitutional in its entirety.[27] The EMA evaded constitutional scrutiny and the court focused on Governor Whitmer’s highly legalistic procedural move. The Court reasoned that,

To allow such a redeclaration would effectively render the 28-day limitation a nullity. . . . [W]hen the cited language is read in reasonable conjunction with the language imposing the 28-day limitation, it is clear that the Governor only possesses the authority or obligation to declare a state of emergency or state of disaster once and then must terminate that declaration after 28 days if the Legislature has not authorized an extension.[28]

This mechanism is not an unconstitutional interference with executive power because the powers exercised are delegated from the legislature.[29] The police power is a legislative, not an executive power,[30] and therefore any limits on the governor’s exercise of the delegated power is merely a temporal limit on their delegation, not an interference in intrinsic executive powers.[31]

The Court addressed several very close textual readings of the EPGA. The Legislature argued that language such as “within the state” and “affected area” implied that the emergency could not encompass the entire state but merely a subdivision of it,[32] an argument the court neatly dismissed with a dictionary and common sense.[33] Justice Viviano, in his partial concurrence, argued that the Court need not reach the constitutional question because the EPGA did not allow executive actions against a biohazard threat.[34] The majority graciously disagreed, holding that the phrase “public safety” was broad and certainly encompassed dangerous diseases.[35]

Most courts employ a set of constitutional avoidance principles as a way to preserve the legislature’s work if a permissible reading of the text will do so.[36] However in this case, the legislative intent and textual meaning was so clear that the Court had no choice but to address the issue head on.[37] The Michigan Constitution explicitly divides the government into three branches and prohibits any one from exercising the powers of the other.[38] Legislative power is vested in the legislature.[39] Therefore, for the governor to exercise what is a legislative power—the police power—the delegation must include an “intelligible principle” to guide its exercise.[40] The greater the power delegated, the more specific guidance the legislature must provide.[41]

Yet the EPGA’s only guide is that the executive actions must be “reasonable” and “necessary.”[42] The statute otherwise allows the executive to declare an emergency for an unlimited amount of time. This provides no meaningful guidance or limitation on the governor, either in scope or time.[43] “There is, in other words, nothing within either the ‘necessary’ or ‘reasonable’ standards that serves in any realistic way to transform an otherwise impermissible delegation of legislative power into a permissible delegation of executive power.”[44] Further, the provision is not severable because it provides the only authorization to executive action and its removal would make the EPGA a legislative command without the associated powers to act—an impossibility.[45]

In summary then, the Michigan Supreme Court ruled that Governor Whitmer could not avoid the legislature’s limitations by clever substitution of one executive order for another under the EMA, and that the EPGA was unconstitutional. Her orders were thereby left without legal basis.

III. KENTUCKY

Governor Andy Beshear declared an emergency in Kentucky earlier than Governor Whitmer did in Michigan. On March 6, 2020, he issued Executive Order 2020-215 declaring a state of emergency in the Commonwealth.[46] Dozens of orders limiting commerce, individual freedom, and movement followed, based on that original invocation of executive discretion.[47] The original underlying power is contained in KRS Section 39A—an amended version of Kentucky’s first emergency powers statute.[48]

Three plaintiffs filed suit to enjoin Governor Beshear’s orders, and the Attorney General intervened alongside them.[49] The complaint alleged that: (1) the governor did not comply with Section 39A in issuing the orders, (2) that Section 39A was unconstitutional, (3) that the orders should have been promulgated as administrative regulations requiring compliance with the state administrative procedures provisions, and (4) that the orders violated the Kentucky Constitution’s prohibition on the exercise of “absolute and arbitrary power.”[50]

a.     KRS Section 39A

KRS Section 39A is a frequently-invoked statute first passed in 1952[51] and amended in 1974 and 1998.[52] Its most current iteration allows the governor to respond to wide-ranging threats to the Commonwealth, including “biological and etiological hazards.”[53] The governor may act “[i]n the event of the occurrence or threatened or impending occurrence of any of the situations or events contemplated.”[54] The statute is most often invoked for local disasters like flooding and weather-related emergencies.[55] Unlike Michigan’s statute, there is no requirement for legislative approval beyond a certain date.

b.    Beshear v. Acree

The plaintiffs—several businesses affected by the COVID lockdown orders—argued that Governor Beshear failed to correctly invoke Section 39A and that the statute was unconstitutional in the first place.[56] A unanimous Court upheld the statute as constitutional and the governor’s exercise under it.[57]

The Attorney General argued that Governor Beshear’s orders could not lawfully come under Section 39A because he could not act unless the proposed emergency fell outside the capabilities of the local county emergency response agencies.[58] As the Court outlined, KRS 39A.100 authorized the governor to declare a state of emergency, and KRS 39A.010 lists the types of emergencies for which an emergency can be declared. But, the Attorney General argued, the definitions section in KRS 39A.020(12) defines an emergency as an “incident or situation . . . which a local emergency response agency determines is beyond its capabilities.”[59]

The court quickly brushed aside this objection. Holding that the connection between KRS 39A.100 and KRS 39A.010 was “essentially a straight line,”[60] they declined to apply the intervening definitions section as a “statutory detour.”[61] In support of this, they invoked Justice Scalia’s “elephants in mouseholes” canon,[62] reasoning that to allow the definitions section to apply to the whole statute would “alter the fundamental details” of the statute in impermissible ways.[63] As an alternate and substantially stronger justification, they claimed that to allow this definition to apply would “produce an absurd result.”[64] “The prospect that a Governor would need to consult with and defer to 120 different local agencies before he or she could declare a statewide emergency in the face of an immediate and fast-moving threat to the entire Commonwealth strains rational understanding.”[65]

Dispensing with the improper invocation claim, the Court moved on to the constitutionality of Section 39A as a whole. Ky. Const. § 27 establishes the three branches of government, while the subsequent section “prohibits any one branch from exercising any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”[66] Plaintiffs argued that the power involved was legislative, had been delegated without sufficient guidance by the legislature, and therefore violated § 27 of the Kentucky Constitution.

The Court ultimately decided that the powers being exercised were actually not legislative at all,[67] and insofar as they were properly delegated.[68] In support of this, the Court looked to two provisions in the Constitution: the powers of the governor, and the part-time legislature and the governor’s authority to call it into special session. Both are distinct but play off each other to give the impression of an “implied tilt . . . toward executive powers.”[69] Because the executive is the commander-in-chief of the state’s military units, such as they are, and is subject to the “take care” mandate but only permitted to call the part-time legislature into special session, he by implication has broader powers than would otherwise be assumed.[70] A part-time legislature is supposedly unable to respond quickly when called into session and therefore more power must necessarily devolve on the governor. To look deeper, the Court says, would be inappropriate and impractical in the face of an emergency.[71]

Even if the powers involved had been legislative, the court declined to “revive” Kentucky’s separation-of-powers doctrine.[72] The 1890 Constitution contains strong language prohibiting the exercise of the powers of one branch by another branch,[73] giving rise to one of the strongest separation-of-powers doctrines of any state.[74] The U.S. Supreme Court requires an “intelligible principle” for a Congressional delegation of power to pass muster[75] and Kentucky courts generally require the same, though the Court downplayed the usefulness of the standard in its opinion.[76]

The Kentucky Supreme Court found the term “necessary” sufficient guidance for the executive, unlike Michigan. Because Kentucky’s “Governor does not have emergency powers of indefinite duration,” the legislature is part-time, and the scope of emergencies is so broad, a simple “standard[] of protection of life, property, peace, health, safety and welfare” is sufficient.[77] Essentially, because the Constitution keeps the legislature from addressing sudden problems, the governor must have the power to do so.[78] “In sum, the powers exercised by a Kentucky Governor in an emergency are likely executive powers in the first instance . . . but to the extent those powers are seen as impinging on the legislative domain, our General Assembly has wisely addressed the situation in KRS Chapter 39A.”[79]

IV. ANALYSIS

We are left then with two states in the same Federal Circuit whose Supreme Courts arrived at opposite conclusions on similar executive orders, enabling statutes, and constitutional provisions—dealing with the same biological hazard. Both state constitutions clearly lay out the provinces of each governmental branch[80] and prohibit one impinging on or exercising the powers of the other.[81] Both governors issued far-reaching orders under similar emergency powers statutes duly passed by their respective state legislatures. Yet when citizens challenged the orders in court, one was upheld and the other struck down.

Michigan’s high court not only held that Whitmer violated the EMA, but that the EPGA was an unconstitutional delegation of powers. Kentucky’s supreme court held that the governor’s orders were allowed under KRS Section 39A, and that Section 39A itself did not violate Kentucky’s nondelegation doctrine. How did we get such different results? The answer lies in the state-by-state differences allowed under our federal structure.

The largest structural difference between the two states lies in the composition of their legislatures. Michigan’s legislature is a full-time body, while Kentucky’s is strictly limited to 60-day sessions every other year with 30-day sessions in between.[82] This most certainly influenced the Kentucky court. As Michigan’s Justice Markman pointed out, the broader the scope and time of executive power, the more guidance and limitation the legislature must provide on its delegated power.[83] Michigan’s legislature, meeting far more often, could more easily act on an executive order. Kentucky’s is powerless to act, and the governor’s power to call a special session is permissive, not prescriptive.[84] Though it could certainly be read the opposite way, the courts felt that this required more justification for the Michigan statute and less for Kentucky’s. Kentucky’s court appeared extremely concerned that a threat to the Commonwealth be unaddressed by any branch at all, at least at the state level.[85] Showing extreme deference to the executive, the court read the nondelegation doctrine narrowly and the guiding principles broadly to arrive at the result.[86] Kentucky’s court may also have been unwilling to require the governor to make a discretionary action—that of calling the legislature into special session. This is understandable. Courts should always be cautious in requiring the exercise of discretionary power, as it is by nature an infringement on that discretion. However, the court erred in assuming that the power to address the threat had to reside somewhere convenient. It should not be assumed that every legislative power unable to be exercised because the legislature is adjourned therefore devolves upon the governor for exercise until they reconvene. Indeed, the Court would doubtless agree. But it can be a fine line between assenting to that proposition in theory and disagreeing in practice. If the Court had struck down Section 39A as unconstitutional, the governor would still be within his powers to call the legislature into special session to grant him the necessary powers or simply allow them to act on their own accord.

Kentucky deemed its governor’s powers to be executive in nature, whereas Michigan found them inherently legislative, perhaps the central difference between the two decisions. This distinction allowed the Kentucky Supreme Court to largely sidestep the nondelegation question in any detail, but that issue should not be dismissed so easily. Governor Beshear has consistently relied on his inherent executive power as justification for his actions, even invoking the seemingly irrelevant commander-in-chief power in the process.[87] While these powers are real and important, they do not automatically include the power to limit or even prohibit the exercise of citizen’s civil liberties.

That power must be delegated or attained elsewhere. As prior decisions show, the police power is legislative, not executive, precedent the court largely ignored in its opinion.[88] Therefore, Section 39A must have been the delegation of legislative power to the executive for exercise, triggering nondelegation doctrine scrutiny, an historically high bar in Kentucky. As the Attorney General pointed out, “[t]he police power is possessed by the sovereignty, and in Kentucky, the sovereignty of the people is expressed by the General Assembly” because they are elected by the ultimate sovereigns—the people themselves.[89] If this degree of power is inherently possessed by the executive, then he possesses sovereign power, an idea intrinsically antithetical to a republican system of government.[90] Additionally, if the power is inherent in a sovereign executive, then one wonders why Section 39A was ever necessary.[91]

Yet the court may have considered this the lesser of two evils. If the governor’s power was delegated from the people through the legislature, then Section 39A would have been forced to run the gauntlet of Kentucky’s “double-barreled” nondelegation doctrine.[92] While watered down significantly since the early 20th century, Kentucky still possesses some of the strongest protections in the Union.[93] As a safeguard for the people, a statute must provide sufficient standards to protect against the inherent danger of combined legislative and executive power.[94] The Attorney General wanted the Court to abandon its gradual loosening of those protections, grounded in a pragmatic evaluation of the “pressures and practicabilities” of modern life, and return to the original doctrine.[95] Faced with the choice of justifying its doctrinal change on nondelegation, abandoning recent precedent to reverse the doctrinal change, or sidestepping the Attorney General’s question altogether, the Court apparently chose the latter.

V. CONCLUSION

The COVID-19 respiratory virus spread swiftly across the United States and the entire globe in the first half of 2020. That spread necessitated swift and unprecedented action by governors, mayors, and officials on all levels of government. Now, as the dust begins to settle and we pick up the pieces, we should thoroughly evaluate what we have been through. Legislatures in particular must closely study the vigorous exercise of massive executive emergency powers and decide if these delegations were successful, legal, and desirable.

Legislatures create statutes for the future, crafting them as best they can to address unforeseen and unpredictable exigencies. Some mistakes are inevitable. But COVID-19 provided a test of our civic resolve and legal foundations like few others in our history, and the future these statutes were created for is now in the past. We now have an excellent picture of the current state of our constitutions and cherished legal protections as interpreted by state supreme courts. Going forward, citizens in each state must ask themselves whether the results were satisfactory and examine what changes must be made to ensure future trials find us true to the principles that make us free.

[1] Tedros Adhanom, WHO Director-General's opening remarks at the media briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020.

[2] See Bill Chappell & Vanessa Romo, New York, Illinois Governors Issue Stay At Home Orders, Following California's Lead, NPR (Mar. 20, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/03/20/818952589/coronavirus-n-y-gov-cuomo-says-100-of-workforce-must-stay-home.

[3] See, e.g., Danville Christian Academy, Inc. v. Beshear, 981 F.3d 505 (6th Cir. 2020) (raising a free exercise challenge to Kentucky’s school closure order); Givens v. Newsom, 459 F. Supp. 3d 1302 (E.D. Cal.), appeal dismissed, 830 F. App'x 560 (9th Cir. 2020) (challenging California’s stay-at-home order as violating the First Amendment rights of assembly).

[4] In re Certified Questions From United States Dist. Court, W. Dist. of Michigan, S. Div., 958 N.W.2d 1, 6 (Mich. 2020).

[5] See Beshear v. Acree, 615 S.W.3d 780, 786–89 (Ky. 2020).

[6] In re Certified Questions, 958 N.W.2d at 6–7.

[7] Id.

[8] Mich. Comp. Laws Ann. § 30.403(4) (West).

[9] Id. § 30.403(3).

[10] Id. § 30.403(3)-(4).

[11] Id.

[12] Id. § 30.403(3).

[13] In re Certified Questions From United States Dist. Court, W. Dist. of Michigan, S. Div., 958 N.W.2d 1, 32 (Mich. 2020) (Viviano, J., concurring in part).

[14] Id. at 32–33.

[15] Id. at 33.

[16] Mich. Comp. Laws Ann. § 10.31(1) (West).

[17] Id.

[18] Id.

[19] Id.

[20] Id. at § 10.32.

[21] Id. at § 10.31(2).

[22] See In re Certified Questions From United States Dist. Court, W. Dist. of Michigan, S. Div., 958 N.W.2d 1, 6 (Mich. 2020).

[23] Id. at 6–7.

[24] Id. at 7.

[25] See generally Verified Complaint, Midwest Inst. of Health, PLLC v. Whitmer, No. 1:20-CV-414, 2020 WL 3248785 (W.D. Mich. June 16, 2020).

[26] See In re Certified Questions, 958 N.W.2d at 7.

[27] Id. at 31.

[28] Id. at 10.

[29] Id. at 11.

[30] Id. at 20 (“[T]he police power is legislative in nature.”).

[31] Id. at 11 (“Nothing prohibits the Legislature from placing such a limitation on authority delegated to the Governor, and such a limitation does not render illusory in any way the delegation itself.”).

[32] Id. at 13.

[33] Id.

[34] Id. at 32 (Viviano, J., concurring in part).

[35] Id. at 14–15 (majority opinion).

[36] See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (outlining the constitutional avoidance principles in use by the Court at the time); In re Certified Questions, 958 N.W.2d at 16; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 247–51 (2012) (explaining the constitutional-doubt canon).

[37] In re Certified Questions, 958 N.W.2d at 16.

[38] Mich. Const. art. 3, § 2.

[39] Mich. Const. art. 4, § 1.

[40] In re Certified Questions, 958 N.W.2d at 17–19; see also Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (“The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion.”).

[41] In re Certified Questions, 958 N.W.2d at 17–19.

[42] Mich. Comp. Laws Ann. § 10.31(1) (West).

[43] In re Certified Questions, 958 N.W.2d at 24.

[44] Id. (emphasis in original).

[45] Id. at 25.

[46] Beshear v. Acree, 615 S.W.3d 780, 789 (Ky. 2020).

[47] Id. at 790.

[48] Id. at 799–800.

[49] Id. at 793–94.

[50] Id. at 786–788.

[51] Id. at 799 n. 22–23 (discussing concerns about nuclear fallout that motivated the early versions of the statute).

[52] Id. at 799–800.

[53] Id. at 800.

[54] Ky. Rev. Stat. Ann. § 39A.100 (West).

[55] See Beshear, 615 S.W.3d at 831–36 (appendix listing all executive orders invoking Section 39A).

[56] See id. at 786–89; see generally Reply Brief for the Commonwealth of Kentucky, Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020) (No. 2020-SC-0313-OA).

[57] Id. at 786–89.

[58] Reply Brief for the Commonwealth of Kentucky, supra note 56, at 16.

[59] Ky. Rev. Stat. Ann. § 39A.020(12) (West).

[60] Beshear, 615 S.W.3d at 801–02.

[61] Id. at 802.

[62] Id.; see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). But see Scalia & Garner, supra note 35, at 225 (“Individual statutes often contain definition sections giving ordinary words a limited or artificial meaning . . . applicable to the entire codified field.”).

[63] Beshear, 615 S.W.3d at 802.

[64] Id. at 803.

[65] Id. at 804.

[66] Id. at 805 (quotation marks omitted).

[67] Id. at 805–06. But see Reply Brief for the Commonwealth of Kentucky, supra note 56, at 17–18 (citing City of Louisville v. Kuhn for the proposition that the police power is “possessed by legislative bodies”).

[68] Beshear, 615 S.W.3d at 806.

[69] Id.

[70] Id. at 806–07.

[71] Id. at 808–09.

[72] See Reply Brief for the Commonwealth of Kentucky, supra note 56, at 3; see also JP Stilz, Neither Toothless Nor Rigid: Kentucky’s Nondelegation Doctrine as Applied to Governor Beshear’s Emergency Response to COVID-19, Ky. L.J. Online: Blog (Oct. 24, 2020), https://www.kentuckylawjournal.org/blog/kynondelegation (discussing the background and current state of Kentucky’s separation-of-powers doctrine).

[73] Ky. Const. § 28.

[74] See Sibert v. Garrett, 246 S.W. 455, 457 (Ky. 1922) (“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution.”); Diemer v. Com., Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 864 (Ky. 1990) (“Kentucky is a strict adherent to the separation of powers doctrine.”).

[75] Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (“The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion.”).

[76] Beshear, 615 S.W.3d at 809–11.

[77] Id. at 813.

[78] Id. at 812 (“A legislature that is not in continuous session and without constitutional authority to convene itself cannot realistically manage a crisis on a day-to-day basis by the adoption and amendment of laws.”).

[79] Id. at 813.

[80] Compare Mich. Const. art. 3, § 2, with Ky. Const. § 27.

[81] Compare Mich. Const. art. 4, § 1, with Ky. Const. § 28.

[82] Mich. Const. art. 4, § 13 (“The legislature shall meet at the seat of government on the second Wednesday in January . . . [and] adjourn . . . on a day determined by concurrent resolution.”); Ky. Const. § 36 (“The General Assembly, in odd-numbered years, shall meet in regular session for a period not to exceed a total of thirty (30) legislative days.”).

[83] In re Certified Questions From United States Dist. Court, W. Dist. of Michigan, S. Div., 958 N.W.2d 1, 20 (Mich. 2020).

[84] Ky. Const. § 80 (“He may, on extraordinary occasions, convene the General Assembly . . . .”)

[85] See Beshear v. Acree, 615 S.W.3d 780, 787 (Ky. 2020) (“[W]e decline to overrule that precedent, especially in circumstances that would leave the Commonwealth without day-to-day leadership in the face of a pandemic affecting all parts of the state.”).

[86] Id. at 809–11.

[87] Brief for Appellant at 18–19, Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020) (No. 2020-SC-0313-OA).

[88] See Reply Brief for the Commonwealth of Kentucky, supra note 56, at 17–18; see also Beshear, 615 S.W.3d at 809–11.

[89] Reply Brief for the Commonwealth of Kentucky, supra note 56, at 17–18 (internal quotations omitted).

[90] This is not to say the Governor does not possess “supreme” power in any area. But “supreme” and “sovereign” are not the same thing. Supreme power is complete within its sphere. Sovereign power is the ultimate power in a state—the last resort and repository of state legitimacy. To hold that the governor possesses undelegated sovereign power would be to make him a king.

[91] The only conceivable use for Section 39A would be as a check on the means by which the governor exercises his power, not a grant of the power itself.

[92] See Legis. Rsch. Comm'n v. Brown, 664 S.W.2d 907, 912 (Ky. 1984) (“[O]ur constitution has a double-barreled, positive-negative approach [to separation of powers].”).

[93] See Bd. of Trs. of Jud. Form Ret. Sys. v. Att'y Gen. of Com., 132 S.W.3d 770, 782 (Ky. 2003) (“Indeed, in the area of nondelegation, Kentucky may be unsurpassed by any state in the Union.”).

[94] See The Federalist No. 47, at 251 (James Madison) (George W. Carey & James McLellan eds., Liberty Fund 2001) (“When the legislative and executive powers are united in the same person or body . . . there can be no liberty.” (quotations omitted)).

[95] Reply Brief for the Commonwealth of Kentucky, supra note 56, at 4.