A “brisk,” 92-page opinion is reducible for my purposes to two propositions. First, the executive generically has broad emergency powers. Second, under Kentucky law, the legislature has specifically delegated the executive broad emergency powers. 

Michael C. Duff

The delegation portion of the opinion may not stand as the governor's foes have vowed to effectively strip the delegation by legislation. The question of the limits of executive orders/unilateral action would be more intellectually interesting if it arose in a context other than a pandemic-level emergency. It is hard to say what diminished level of emergency would trigger separation of powers pushback by state courts.

Under federal law, of course, the U.S. Supreme Court said the Korean War wasn’t enough of an emergency to justify Harry Truman’s seizure of the steel mills (which, of course, is distinguishable because it involved the unambiguous deprivation of private property).

I suspect that many state courts will react similarly to Kentucky in concluding that COVID is enough of an emergency for the executive to act unilaterally in certain traditionally legislative areas without legislation. And, in the case of employers'/carriers' liberty/property 14th Amendment challenges focused on workers' compensation COVID presumptions established by executive order, I suspect the federal courts would apply deferential rational basis review to executive actions.

As we know, this is the traditional "police power" mode of judicial review by federal courts of most state workers’ compensation legislation, which is deemed historically an exclusive matter of state law. I would expect the federal courts to have a similar attitude concerning all state workers' compensation law, whether the product of legislation or executive action. (I don't always agree with this reflexive approach, but it is undeniably customary).

Obviously, this is just a surmise, and in the new 6-3 reality at the U.S. Supreme Court, I'll be betting my primary residence on nothing.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.