Separation of Powers

Huge Legislature-Governor Conflict in Kansas, Over Emergency Powers (Stemming from Religious Freedom Dispute)

A "drafting snafu" with the Legislature's concurring resolution, which endorsed the Governor's initial emergency order, is casting many things in doubt.

|The Volokh Conspiracy |

[UPDATE, Apr. 11, 2020, 9:23 pm Pacific: The Kansas Supreme Court has held that the Legislative Coordinating Council lacked the power to veto the governor's order; for details, see this post.]

Tuesday, Kansas's Governor issued a revised gathering ban order that forbade gatherings of more than 10 people (regardless of any social distancing measures they might take), including in church.  But the ban excluded

  • schools,
  • shopping malls "where large numbers of people are present but are generally not within arm's length of one another for more than 10 minutes,"
  • libraries,
  • manufacturing and production facilities, and
  • restaurants and bars when there are 6 feet between tables, booths, and bar stools.

This leads to plausible though not open-and-shut arguments that the order violates religious freedom rights, because it treats church gatherings worse than comparable gatherings (I hope to blog in more detail on this soon). And Wednesday, the Legislative Coordinating Council rescinded the Governor's order as to worship services.

This has now turned into a lawsuit, just argued this morning (Saturday) before the Kansas Supreme Court, about what one might call Kansas's "emergency constitution"—the scheme for allocating government power during this emergency. And it all seems to stem from what Justice Carol Beier described during the argument as a "drafting snafu."

[1.] The statute: Under the Kansas Emergency Management Act, the governor is entitled to declare a state of emergency (§ 48-924) and then "issue orders and proclamations which shall have the force and effect of law during the period of a state of disaster emergency" (§ 48-925). But the Legislature provided for checks on the governor's power:

  • The Legislature must approve, by concurrent resolution, any state of emergency of over 15 days (§ 48-924(b)(3)),
  • except that one 30-day extension may be authorized by the state finance council, which consists of the Governor and eight legislative leaders ((b)(3)).
  • When the legislature isn't in session, the state finance council can authorize further 30-day extensions (at first by majority vote, but repeated extensions require unanimity) ((b)(4)),
  • and throughout, the legislature can revoke any gubernatorial orders by concurrent resolution (§ 48-925(b)).

The legislature has thus given the governor extraordinary powers during an emergency. But it has also imposed extraordinary checks, beyond the normal legislative power to pass laws, which would then be subject to gubernatorial veto (which can be overridden by a 2/3 vote in each house).

Now it's not at all clear to me that these checks, and especially the last provision about revoking specific orders through concurrent resolutions, are constitutional—the Kansas Supreme Court expressly rejected a similar "legislative veto" scheme (State ex rel. Stephan v. Kan. House of Representatives):

Where our legislature attempts to reject, modify or revoke administrative rules and regulations by concurrent resolution it is enacting legislation which must comply with the provisions of art. 2, § 14 [which requires a gubernatorial signature or a legislative override]. A bill does not become a law until it has the final consideration of the house, senate and governor as required by art. 2, § 14.

Query whether the legislative veto provision here is any different on the theory that it interferes not with the governor's usual executive power, but with her unusually delegated legislative power. (Stephan expressly noted that the administrative actions being vetoed were "essentially executive or administrative in nature, not legislative.") But as best I can tell, no-one is raising this argument here, because both the Governor and the Legislature like this scheme.

[2.] The concurrent resolution: The governor issued her initial emergency declaration on Mar. 12, and Mar. 19 the legislature ratified it by concurrent resolution, as the Kansas Emergency Management Act contemplated. But in the process, the Legislature added certain conditions:

[T]he State of Disaster Emergency declaration issued on March 12, 2020 … is hereby ratified and continued in force and effect on and after March 12, 2020, through May 1, 2020, subject to additional extensions by concurrent resolution of the Legislature or as further provided in this concurrent resolution. If the Legislature is not in session:

[1] As described in [§] 48-924(b)(3), upon specific application by the Governor to the State Finance Council, the State Finance Council may authorize once an extension of such state of disaster emergency by affirmative vote of a majority of the legislative members thereof for a specified period not to exceed 30 days [so far this does track the text of the Act -EV]; and

[2] following such State Finance Council action, the Legislative Coordinating Council, representing the Legislature when the Legislature is not in session …:

[A] Is authorized to ratify a declaration, terminate a state of disaster emergency, revoke an order or proclamation or assume any other power granted to the legislature pursuant to [the Act];

[B] may authorize additional extensions of such state of disaster emergency by a majority vote of five members thereof for specified periods not to exceed 30 days each;

[C] shall meet not less than every 30 days to: [i] Review the state of disaster emergency; [and] [ii] consider any orders or proclamations issued since the last Legislative Coordinating Council meeting; … and

[D] shall have the authority to review and revoke all orders and proclamations issued by the governor pursuant to [his emergency powers].

A few days later, the legislature then adjourned (precisely because of the epidemic), though it appears to be still technically in session (not sure what that means here, but it's briefly discussed at about 7:50 and 42:45 in the video).

But wait! The Legislative Coordinating Council, which contains seven members drawn from both chambers of the Legislature, is nowhere mentioned in the Emergency Management Act.

Does this mean that this delegation to the Coordinating Council by the concurrent resolution is invalid? Or does the power to ratify the Governor's emergency declaration by concurrent resolution include the power to set up special ad hoc mechanisms for handling emergency-related responsibilities? Or might the delegation be authorized by the separate (non-emergency-related) statute that creates the Coordinating Council, which says that "The legislative coordinating council shall represent the legislature when the legislature is not in session" (or would that authorization only extend to representing for matters such as hiring lawyers when the Legislature is a party to litigation)?

Note that, at least according to one of the Justices during oral argument (starting around 34:20), the Coordinating Council has been meeting during the last couple of weeks without much controversy. It was the church order that produced the clash between the Coordinating Council and the Governor, and that then led to the challenge to the Coordinating Council's general authority. (For whatever it's worth, each house of the Kansas Legislature is more than 2/3 Republican, but the Governor is a Democrat.)

[3.] The conflict between the statute and the resolution: So already we see that (A) the whole Emergency Management Act concurrent resolution provisions might be unconstitutional, and (B) the concurrent resolution might in any event not comply with the Act.

But it also looks like the Legislative Coordinating Council, even if properly empowered by the resolution, may not yet be in a position to act. After all, subsection 2 in the quoted language in the concurrent resolution says, "following such State Finance Council action [to extend the original ratification], the Legislative Coordinating Council, representing the Legislature when the Legislature is not in session …" But the State Finance Council hasn't acted, so where does the Legislative Coordinating Council get its authority?

[4.] The inconsistency within the resolution: And yet we're not done. ­­Recall that the legislative resolution ratified the Governor's Mar. 12 declaration of emergency through "May 1," and then empowered the State Finance Council to authorize an extension "[a]s described in [§] 48-924(b)(3)." But subsection (b)(3) only authorized the Finance Council to extend the state of emergency "once for a specified period not to exceed 30 days beyond such 15-day period" after the declaration. (The Emergency Management Act does give the Finance Council power to authorize more extensions, but that's in (b)(4).)

That (b)(3) power in the Act thus allowed the Finance Council to extend things only to Mar. 12 + 15 days + 30 days = Apr. 26—and yet the resolution had already ratified the emergency until May 1. So the resolution's grant of authority to the Finance Council seems self-contradictory. And it's that grant of authority that triggers, under the resolution, the future role of the Coordinating Council.

A rush job, under stress, yielded something of a botch. Unsurprising, but now the Kansas Supreme Court has to straighten it out.

[5.] Should the whole resolution be invalidated? But say that the concurrent resolution's delegation to the Legislative Coordinating Council is indeed inconsistent with the statute (or is even an unconstitutional delegation of legislative authority). Does that invalidate just that part, or the entire concurrent resolution? (That is what lawyers often call the "severability" question.) After all, it's possible that the Legislature wouldn't have ratified the Governor's emergency proclamation, and certainly not through May 1, without having such a check on the Governor's power; or, if it weren't for the Coordinating Council's role, the Legislature might have created a different check by statute.

So it might be that invalidating the grant of authority to the Council would mean throwing out the whole resolution that ratified the state of emergency, and thus presumably terminating the state of emergency. The Legislature could still issue a new resolution, and enact whatever checks it thought necessary—but then it would need to reconvene in the middle of an epidemic. (Query whether the court could, as part of its remedial powers, delay the invalidation of the whole resolution by a few days to give the Legislature time to act.)

[6.] But what about my goats? The Roman poet Martial had a great epigram about lawyers (translation by Roger Dickinson-Brown):

There is no poison here, no rape or force—
a simple case: my neighbor stole my goats.
But my expensive lawyer will discourse
on the whole history of law. He quotes
book, precedent and chapter 'til he's hoarse.
Fine, noble words! But what about my goats?

In this case, the problem isn't some lawyers' tendency to bloviate about high-level abstractions, but the law's tendency to dwell extensively on procedure—perhaps a well-justified tendency, when it comes to allocation of governmental responsibility, but still often frustrating to people who just want to know the substantive rules. What about religious freedom? What about church closures? What about Easter?

The one thing that seems pretty clear is that the Kansas Supreme Court won't expressly reach those religious freedom questions in whatever decision it reaches in the next several days (and the Chief Justice said the court will "work expeditiously" and announce a decision "as quickly as we can," perhaps even today).

If the court rules that the delegation to the Coordinating Council was effective, then presumably the Coordinating Council's decision invalidating the governor's church closures will stand. But if the court rules that the delegation was ineffective (whether because it's unauthorized by the constitution, unauthorized by statute, or just not active until any decision by the Finance Council), then the governor's church closure order will stand—and there would need to be a separate challenge brought to that gubernatorial order.

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  1. This leads to plausible though not open-and-shut arguments that the order violates religious freedom rights, because it treats church gatherings worse than comparable gatherings (I hope to blog in more detail on this soon).

    “Comparable gatherings” in this case would be other events where large numbers of people sit in close proximity for an hour or so indoors; ie movie theaters, concert halls, and the like. The only item on your list that looks anything like that are schools.

    So it does not appear, on the face of it, that churches are being unconstitutionally burdened or singled out here. The Louisville case seems a much clearer violation of religious liberty.

    1. Church services do not have to last an hour, and many don’t.
      Yet I’ve been in a bar with friends for several hours. In close proximity….

  2. One hears this more than Benny Hill.

    Makes me wonder … could a legislature, say, ban meetings of more than 10 people, effective until the legislature passed new legislation undoing the ban, then find itself unable to reconvene without violating its own ban, and thus find itself extinct by its own hand?

    1. Yeah, it’s always important to remember that the government isn’t like one of those exploding computers from Star Trek, stuck following the logic of the rules regardless of where they lead. They barely even treat the law as a suggestion.

  3. The local paper’s version is informative — this is a fight between Republicans supporting religious rights and a Democrat Governor who doesn’t — in a state where God still matters to a lot of people. Hint: I think we can predict Kansas going all Red this November…
    See: https://www.kansas.com/news/politics-government/article241861126.html#adnrb=900000

    The religious issue here appears to be her claim that churches are similar to other *group assemblies* and NOT to merely similar situations, i.e. the Masons and Boy Scouts would be held to similar rules.

    But medically speaking, that’s irrelevant in that the purported danger is in close contact with other persons, not why. Hence working in a factory, drinking in a bar, or shopping in a mall ought to be considered in the same light as attending a church.

    Query: Can the court throw out the emergency powers statute on this matter (churches) alone while leaving the rest of it intact on the grounds that no one has challenged it? Or, conversely, do what Margaret Marshal did in the MA Gay Marriage decision and say the the practice is unconstitutional but give the legislature 6 months to fix it — (i.e. say that the legislative council isn’t authorized, but stay that decision for 6 months).

  4. Just go to church and let the Democratic governor arrest you. Just like in the old communist dictatorships the Democrats now look fondly upon as their model for governance.

    It’ll be on video, for sure.

  5. That’s an awfully loose translation of the poem (although I’m impressed that he also translated all the Epigrams into French). Here’s a stab at a more literal version (feedback welcome):

    Not battery, poisoning, nor homicide:
    In re My Three Goats is the case to be tried.
    My neighbor stole them (an intentional tort).
    Now it’s time for my lawyer to prove it in court.
    Of Cannae he speaks, and the Parthian War,
    Carthaginian treachery, fabled of yore.
    On Sulla and Marius now he claims
    And Scaevola’s right hand is consigned to the flames.
    His arms wave about as he booms and emotes:
    Now, Postumus, tell them about the three goats.

    1. Should be “On Sulla and Marius now he declaims”

      1. Oh, and probably “Great Pontic War” for “Parthian War”.

  6. Ahh, constitutionS. We have now constitutions, AND Emergency-constitutions. And a republic if we can keep it.

    1. The point of each state’s “emergency constitution” — the body of rules (some in the state constitution, some in state laws, some in other places, such as legislative resolutions) that set forth how the government functions in an emergency, which may well be different from how it functions normally — is precisely to help keep the republic. As the Framers recognized (in Madison’s words),

      Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government…. On comparing, however, these valuable ingredients [energy and stability] with the vital principles of liberty [including that power “be placed not in a few, but a number of hands”], we must perceive at once the difficulty of mingling them together in their due proportions.

      The emergency constitutions recognize that the “due proportions” may be different in times of emergency than in normal times.

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