Kansas Republicans renew efforts to strip Kelly’s emergency powers after COVID response
Kansas Republicans are renewing efforts to curtail Democratic Gov. Laura Kelly’s authority during the pandemic and in future crises with legislation that would require all executive orders during states of emergency to be reviewed by the Attorney General and approved by a panel of lawmakers.
The measures, under consideration by judiciary committees in the House and Senate, would also enable individuals who feel they have been harmed by emergency executive actions to challenge them in court.
The House version applies to all emergency declarations. The Senate version carves out rules for public health related emergencies.
In a statement Wednesday, Kelly said she agreed that an amended emergency management law was needed, but cautioned against hampering the state’s ability to respond.
“There is a good reason that you ask for an emergency declaration and that is because you had an emergency,” Kelly said. “Generally emergencies require rapid response to the issues presented.”
The proposed measures are an attempt to revise laws hastily amended during a special session of the legislature last year after Kelly imposed sweeping stay-at-home orders at the onset of the COVID-19 pandemic.
“My desire is just to clarify what the law is,” said Rep. Fred Patton, a Topeka Republican. “We had lots of conflict over the last nine months because we weren’t sure who had what power and was there oversight.”
Kelly and public health officials insisted school, church and business closures were essential to stopping the spread of the virus keeping the state’s hospitals from being overwhelmed. Republican lawmakers said she needlessly harmed the economy and children’s education while infringing on religious liberty.
In May, legislators passed a measure that allowed all counties to opt out of executive orders, such as a statewide mask mandate, issued by Kelly.
Kelly has since said she regrets ceding that power and that the piecemeal approach limited her office’s ability to respond to rising coronavirus cases.
Now, Republican leaders are seeking to claim control and provide Attorney General Derek Schmidt, a candidate for governor in 2022, a check over Kelly.
GOP lawmakers have made several efforts this session to limit Kelly’s power. On Tuesday, Schmidt and legislative leaders announced plans to pursue a constitutional amendment giving lawmakers the ability to overturn regulations put in place by executive agencies.
The Senate’s version of the revised executive powers discussed Wednesday prohibits Kelly from “burdening” religious activity, redirects power for school closings to local school boards and requires that, if elective surgeries are canceled, abortions must be too.
Rep. John Carmichael, a Wichita Democrat, said he believed the governor holds constitutional power to respond to an emergency but said that if legislative action was needed he preferred the House version.
“(The Senate Bill) is predicated upon the assumption that this emergency is essentially over and that COVID is about to go away,” Carmichael said.
In written testimony on both bills, Schmidt refrained from commenting on specific provisions but referred to statements he gave to a committee last year about broad concerns with the law.
“There can be no reasonable question that the KEMA’s (Kansas Emergency Management Act) unprecedented use during the COVID-19 response – unprecedented in its combination of geographic scope, duration and intrusiveness of emergency orders issued under its authority – has revealed concerns, gaps and shortcomings in the Act that should be addressed and decided by the Legislature to reduce the likelihood they will need to be addressed and decided by the courts.” Schmidt wrote.
Among several concerns, Schmidt wrote in August, were that the existing law did not provide sufficient checks on the governor’s power. He proposed that the governor be required to seek review of executive orders from the attorney general.
Senate Vice President Rick Wilborn, a McPherson Republican, and Rep. Fred Patton, a Topeka Republican, each said the bill had nothing to do with limiting the governor’s power.
“This whole thing was designed for natural disasters, we found out it was inadequate last year and needed a lot of fixes,” he said. “It doesn’t matter who the governor is.”
Though the bill is not yet set in stone, Wilborn said the goal is to disperse powers for future emergencies.
As the committee prepares to work on the bill Thursday, Ethan Corson, a Prairie Village Democrat, said he wanted to ensure the bill balanced the need for urgency with varied input on policy.
“These emergencies are fast moving changing events and we need to make sure that we’re not doing things that would handicap the governor from being able to take action,” Corson said.
Hearings on both bills will continue through this week.
This story was originally published February 24, 2021 at 7:24 PM.
