Are Beshear's executive orders legal?

In Wednesday’s meeting of the Interim Joint Committee on Health, Welfare and Family Services, Sen. Ralph Alvarado, R-Winchester, questioned the legality of some of Gov. Beshear’s executive orders.

Alvarado mentioned KRS 13A.190, which addresses executive-order usage and states that, except under certain guidelines, “an emergency administrative regulation with the same number or title or governing the same subject matter shall not be filed for a period of nine (9) months after it has been initially filed.”

A quick overview of some of the governor’s executive orders shows many instances where orders are issued on the same subject, including some regulations nearly identical to those previously filed in earlier months of the COVID-19 pandemic.

Gatherings
March 19, order prohibiting mass gatherings
May 14, order limiting gatherings to 10 people beginning May 22
June 16, order increasing gatherings to 50 people beginning June 29
July 20, order decreasing gatherings back to 10 people

Restaurant Capacity
March 16, order banning in-person dining in restaurants
May 22, order allowing restaurant capacity to 33%
July 27, order reducing restaurant capacity to 25%

On-site Alcohol Consumption/In-person bar traffic
March 16, order prohibiting on-site consumption of alcoholic beverages at bars
May 22, order reinstating on-site consumption of alcoholic beverages at bars
July 27, order again prohibiting on-site consumption of alcohol at bars

Kentucky law clearly bars the governor from issuing executive orders on the same subject as well as modifying or reissuing similar orders even in a state of emergency. But earlier this week, Beshear said he plans to 'renew' the mask order when it expires.

Alvarado also voiced concerns over lack of due process with the Cabinet for Health and Family Services imposing civil or criminal penalties or fines for violations such as not quarantining or wearing a mask: "My concern is that the Cabinet does not have statutory authority to set penalties for individuals….in this situation, there’s no way for individuals to defend themselves or having any process; they don’t know what to do. Do they go before the court? Do they go before the Cabinet?"