By Senator Adrienne Southworth Guest columnist
November 2, 2022
I have previously written about Amendment 1 and why I have voted no each time it has been presented to me. By popular request, I am writing further about checks and balances. While I do recommend reading the earlier article first, I will summarize key points here for context. Amendment 1 appears long, but changes only two things: 1) removes the deadline to finish the legislative session, and 2) allows the president and speaker to call special sessions like the governor currently can. A valid debate is ongoing about which branch has too much power and how to balance all the power to better control overreach. So far as I can tell, Amendment 1 supporters generally believe the status quo is the source of the problem, and therefore, changing the constitution can only do more good than harm. As I mentioned before, the constitution currently limits the legislature to doing its law-changing work before March 30/April 15 each year. It also requires us to have six readings of bills before they pass into law, three in each chamber over a period of days. I am now turning my attention to two important things: 1) The government does not need its power to add up to 100%, and 2) the roles of each branch are unique, so powers cannot be effectively transferred between branches. One possibility that nobody is talking about is truly limiting government and allowing for areas in which there is no government power at all. Power left to the people is written in the US Constitution in the 10th Amendment. To paraphrase by eliminating the compound clauses, the 10th Amendment says, "Powers not prohibited by the Constitution to the states are reserved to the people." If there is an overreach in one branch of government, the answer is not necessarily to rearrange the chairs on the Titanic by swapping branches to which it is assigned. Perhaps some power should be removed altogether. This introduces a fundamental civics lesson. The founders of our country understood that power should not be concentrated, so they made three separate branches which were unable to do anything alone but required a team effort to govern. The legislative branch makes the laws, but cannot force anybody to follow them. Nor can we change their meaning based on what we think is good at a pivotal moment. The executive branch enforces the laws we write. The judicial branch reads what is on paper and determines its meaning. The legislature has very few limits already, which are all in the constitution. Besides a few powers directly given in the constitution, the legislature gives the governor most of his power. The Kentucky Supreme Court said in 2021 during the case about the Governor's overreach, "The Executive branch exists principally to do [the Legislative branch's] bidding." Besides the few powers given to the Governor in the Constitution directly, his powers are "only what the General Assembly chooses to give him," (Cameron v. Beshear, 2021).
The judicial branch, on the other hand, interprets the written law and has the force to stop things that are out of line. The only power the judicial branch has against the legislature is the constitution if we ignore it. This is how the constitution is the only real check and balance on the legislature. Otherwise, the judicial branch can tell us nothing, and the executive branch cannot undo what we have set forth for them. These are longstanding arrangements that can and should be addressed in a regular legislative session rather than knee-jerk moments. If the issues are with executive or judicial interpretation of a statute, then the bigger question is whether passing yet another law will solve the problem or just start a vicious cycle. The biggest red flag that made me start researching the issues with Amendment 1 was the companion legislation that explained how the six readings would not be necessary in the special sessions called by the president and speaker. They would not be considered actual special sessions, but rather an extension of the regular session where bills that had not passed earlier in the year could be resurrected overnight. If there is abuse in either the executive or judicial branches, the constitution provides the legislature the power of impeachment. No additional legislative sessions or laws will make other branches quit abusive behavior. Refusing to use the power of impeachment does not justify removing limits on our own power. Thomas Jefferson, in a letter to James Madison (1787), said, "I am not a friend to a very energetic government. It is always oppressive.” The goal of the rule of law in this country is to set the law in print and use a slow process for change so that human whims are not controlling our government. Against this backdrop, nothing seems wrong with having the legislature meeting only three months per year. Allowing us monthly follow-ups is not necessary if we are really just setting policy. As an example, most people are shocked when they read the current emergency power we have delegated to the governor. For essentially any reason, he can declare an emergency, then he can do things he could not normally do:
KRS 39A.010 "The General Assembly realizes the Commonwealth is subject at all times to disaster or emergency occurrences... including but not limited to: flood, flash flood, tornado, blizzard, ice storm,...or other causes; and the potential, threatened, or impending occurrence of any of these events;... it is hereby declared to be necessary:... (2) To confer upon the Governor, the county judges/executive of the counties, the mayors of the cities and urban-county governments of the Commonwealth, and the chief executive of other local governments the emergency powers provided in KRS Chapters 39A to 39F;... (4) To authorize...the promulgation of orders or administrative regulations, and the taking of other steps necessary and appropriate..." Thomas Paine has a great quote about this: "We repose an unwise confidence in any government, or in any men, when we invest them officially with too much, or an unnecessary quantity of, discretionary power." But Thomas Paine also said, "No country can be called free which is governed by an absolute power; and it matters not whether it be an absolute royal power or an absolute legislative power, as the consequences will be the same to the people." My point on Amendment 1 has consistently been that this new power of the legislature to set its own deadlines and come into session at a moment's notice without a threshold of consensus swaps one overreach for another. Where is the check and balance on the legislature? If we remove the limits from the constitution, there is none. Arranging government correctly means every branch will rub against the others so nobody can run away with absolute power. The legislature has all the cards already. We have the power to change the executive branch powers. We have the power to remove an executive and any judge in extreme circumstances. Instead of dialing our own power up to the level we have given the executive, we should dial the executive back if it is too much. Power given to nobody is reserved to the people, and that is not a bad thing.
State Senator Adrienne Southworth
Kentucky State Senator
502-564-8100 ext. 51684