Gov. Kelly, in fight to tame pandemic crisis, turns to executive orders

By Jonathan Shorman

Tribune News Service

TOPEKA — First came the emergency declaration.

Then the order closing schools.

Now, mass gatherings have been limited to 10.

Kansas Gov. Laura Kelly has aggressively deployed executive orders over the past two weeks to contain the fallout from the coronavirus, which has killed two in the state.

Ninety-eight cases have been reported, with hundreds more projected.

So far, the Democratic governor issued nearly a dozen orders — announcing four on Monday alone. Some are broad in scope, while others tailored to waive specific regulations.

But taken together, they represent a sweeping use of executive power at a time of crisis unlike anything Kansas has experienced in recent history.

They also might be setting precedent for large-scale action by future governors.

The orders sparked a debate last week in the Republican-controlled Legislature over Kelly’s powers. It ended with lawmakers imposing oversight measures that could affect the response to the pandemic in the weeks and months ahead.

On Monday, Kelly imposed a statewide ban on gatherings larger than 10, replacing an earlier order that limited groups to 50.

She also prohibited trash and recycling companies from canceling or suspending services because of non-payment due to the pandemic.

Additionally, the governor extended deadlines for driver’s license and vehicle registration renewals until 60 days after she lifts the state of emergency.

She pushed back the tax filing deadline to July 15, bringing Kansas in line with the federal government, which had already delayed its tax deadline.

“The safety and well-being of Kansans is my top priority,” Kelly said in a Monday statement announcing the latest tranche. “During these trying times, we need essential services to continue to function to secure our public safety and health. We also need some leniency when it comes to deadlines. These executive orders are necessary steps to help Kansas families during this crisis.”

Previously, she has restricted evictions and foreclosures, lifted regulations on motor carriers and given physicians greater leeway in using telemedicine.

She also prohibited utility shutoffs.

Perhaps most consequentially, Kelly closed schools to traditional instruction the rest of the year, forcing districts to move as much teaching as they can online.

Kelly’s orders are unusual because they touch the daily lives of nearly every Kansan. Past governors haven’t shied away from executive orders, but often limited disaster directives to counties directly affected by wildfires, floods and tornadoes.

“Who knows whether she went too far,” said former Democratic Gov. John Carlin, who was in office through most of the 1980s. “But in a situation like we have with this virus, you sure as hell want to err on the side of going too far than not far enough.”

Kelly is one of a number of governors who have taken extensive action. Kansas, along with at least a dozen other states, have limited gatherings to 10.

Kansas and 43 other states and territories have also activated their National Guard.

Everyone in state government understands these are “unprecedented times,” said Sen. Julia Lynn, an Olathe Republican.

“I think our governor has to act decisively in the best interest of public health and safety, and I think that she’s done that,” Lynn said.

Still, the extent of Kelly’s actions caused enough unease among some lawmakers that the Legislature spent a day last week negotiating additional oversight over the governor before agreeing to extend her emergency powers until at least May.

Bob Beatty, a political scientist at Washburn University in Topeka, said Kelly’s actions are setting precedent that could make it easier for future governors to also take sweeping executive action.

He compared the additional oversight the Legislature imposed on Kelly to the federal War Powers Act, which Congress passed in 1973 to limit the president’s ability to wage war without congressional authorization.

“The Legislature basically put in a version of the War Powers Act with Gov. Kelly,” Beatty said.

The compromise gives legislative leaders a path to overriding Kelly if she tries to commandeer private property or control the movement of people.

If the chair of the Legislative Coordinating Council, which is made up of the House and Senate leaders, decides Kelly has invoked one of those powers, the full council can meet to terminate the action.

House Majority Leader Dan Hawkins, a Wichita Republican, said in a statement that most of the state’s emergency laws have been on the books for decades and were crafted primarily with tornadoes, wildfires, floods and other natural disasters in mind.

He expects that once the crisis is past, the Legislature will “thoroughly review” them.

“This is a very different and unforeseen situation,” Hawkins said.

Lynn also noted lawmakers passed a resolution before adjourning to April 27 allowing House and Senate leaders to reconvene the Legislature earlier if needed.

“We can gavel in whenever we need to if we need to address something,” Lynn said. “And if we need to help this governor and if the governor needs our help, then we’re in a position to do that.”

The push for restrictions was sparked in part by a sweeping order limiting evictions and foreclosures during the pandemic, which had alarmed some Republicans.

“We certainly understand the need to make decisions with the best interest of Kansans’ health in mind, but as the Governor attempts to mitigate the risk, I believe the fundamentals of private businesses must also be considered with great priority,” Senate Vice President Jeff Longbine, an Emporia Republican, said in a statement.

On Monday, Kelly issued a new, more specific order that requires financial hardship caused by the virus as the reason a homeowner or renter can’t make payments.

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