Kansas AG: To make leaders work together, limit emergency powers
Kansans have lived nearly a year under an extraordinary state of emergency. Restoring familiar checks-and-balances of self-government by reforming emergency powers will improve our response to the pandemic by making leaders work together.
During 2020, the Legislature — ordinarily the lawmaking branch of government — passed only 18 bills (four of which were vetoed), while the governor unilaterally issued more than 60 emergency orders that had the force of law. That’s not how democratic self-government is supposed to work.
Like pain medicine, emergency powers sometimes are necessary, but excessive use becomes addictive and harmful to the body politic. Disabling checks and balances invites lapses in judgment. This pandemic is bigger than any of us alone.
That’s why during this state of emergency, a federal court had to step in when the governor misused emergency orders to close houses of worship, the Legislature stepped in to decentralize power to local governments, and the State Board of Education stepped in to protect local authority for schools to open.
In her State of the State address, Gov. Laura Kelly at least 10 times criticized “political fights” or called for “working together,” and Senate President Ty Masterson responded in kind by urging “partisan politics” be set aside to find “common ground.” I agree. But this long-lasting state of emergency has impeded those admirable goals by empowering the governor time and again to summarily dismiss dissenting voices as just “playing politics” and to redefine “working together” to mean “do it my way.”
We are told the ongoing state of emergency is necessary for a swift and effective response to the pandemic because it activates local authority, enables the National Guard and other vital assets to assist, and ensures our state continues to qualify for federal assistance. Still, Kansas has been unprepared time and again — slow with PPE and testing, overwhelmed by unemployment claims, lagging in distributing vaccine. Ensuring genuine collaboration through checks and balances would produce better results.
Kansas emergency-management laws work well for familiar disasters like tornadoes, fires or floods that are limited in geography, scope and duration. Those states of emergency merely activate well-practiced, predictable and limited governmental responses. A pandemic is different: It requires a long-lasting, statewide response continually modified by innovation, adaptation and difficult public-policy choices.
Will businesses be ordered closed? Should kids attend school? Who gets vaccinated first? What are our most critical budget priorities during the emergency? How will a proposed government action affect civil liberties?
In our democracy, those types of decisions should be made by legislative deliberation, not emergency executive orders. The very purpose of emergency powers is to replace the messy deliberations of self-government with rapid response.
Relying less on emergency powers would help build consensus to fight this virus. Consider this: Last summer, the governor’s unilateral emergency order mandating face masks was widely ignored, but many Kansans now wear masks because state and local leaders and trusted private partners together persuaded people to help slow the spread. Trusting Kansans works.
By genuinely working together, we can improve our state’s pandemic response, build and sustain broader support for actions that fight the virus, save more lives, better preserve livelihoods, and build the vibrant economy we need to recover. But effective self-government requires more than good intentions; rather, as James Madison wrote, “ambition must be made to counteract ambition” through checks and balances.
The Legislature has voted to extend the state of emergency to March 31 to allow time to consider these issues. Defeating the virus and charting a successful course for our state’s recovery demand the Legislature now reform emergency-management laws before that extension expires.