The Volokh Conspiracy

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Separation of Powers

Kansas Supreme Court Invalidates Legislature's Scheme for Supervising Governor's Executive Powers

The scheme, created by a concurrent resolution, is inconsistent with the Kansas Emergency Management Act. A legislative council's decision to overrule the Governor's church shutdown order has thus been invalidated, and the church shutdown is back in effect.


As I wrote earlier today, there's been a fascinating dispute in Kansas between the Legislature and the Governor, dealing with what one might call Kansas's "emergency constitution"—the web of statutes, concurrent resolutions, and constitutional provisions that set forth who can make decisions in an emergency. To briefly summarize (you can see more in the original post),

  1. The Kansas Emergency Management Act lets the governor to declare states of emergency, under which the governor governs by decree, essentially making temporary laws and suspending existing laws. On Mar. 12, Governor Laura Kelly did this.
  2. The Act provides various institutional checks on the governor's authority. In particular, any state of emergency can last at most 15 days, unless the Legislature issues a concurrent resolution approving the Governor's declaration. On Mar. 19, the Legislature did this, and then adjourned.
  3. The Act also provides that the Governor could apply to the State Finance Council (a body consisting of the Governor plus several legislative leaders) for extensions to the state of emergency.
  4. The Mar. 19 concurrent resolution also provided that the Governor could get an extension from the State Finance Council, and after that the Legislative Coordinating Council (another body consisting of several legislators) could veto any orders the Governor issues. Gov. Kelly hasn't gone back to the State Finance Council for an extension, since none has been needed.
  5. But the Legislative Coordinating Council seems to have been assuming that it could act on the Governor's orders right away, despite the language of the concurrent resolution. This past Tuesday, the Governor issued an order extending the lockdown of various public gatherings to include churches. Wednesday, the Council purported to veto this order.

Today, the Kansas Supreme Court heard arguments about the matter, and promptly issued an opinion (Kelly v. Legislative Coordinating Council) holding that the Legislative Coordinating Council's actions weren't authorized by the Mar. 19 concurrent resolution. "The step involving [the governor going for an extension to] the State Finance Council must occur before the LCC's now-challenged authority is triggered under HCR 5025(2)…. Because the State Finance Council has not taken action, this circumstance does not exist and HCR 5025 does not grant the LCC the authority to revoke Executive Order 20-18."

The court rejected the argument "that the Governor acquiesced and accepted this language as HCR 5025 was negotiated and that she did so as she encouraged the Legislature to adjourn"; such acquiescence, even if it happened, can't give the LCC authority that it lacks. Nor does the LCC have some authority, from its authorizing statute, to act for the Legislature. (I naturally oversimplify the argument here; read the whole opinion for more.)

Justice Daniel Biles joined the majority opinion, but added another reason to reject the LCC's authority: The Kansas Emergency Management Act, he argued, doesn't grant such authority to the LCC, regardless of what a concurrent resolution might say.

KEMA assigns duties to the Governor, the Legislature, and the State Finance Council—with no mention of the LCC, and no provision for the LCC to act in the Legislature's stead. This is particularly notable since the Legislature made provisions in the law for another entity, the State Finance Council, to approve disaster emergency extensions when the Legislature is not in session.

Obviously, by naming the State Finance Council for this purpose, the Legislature contemplated a need to delegate some authority under the Act when it is not in session. But just as plainly, it chose not to do that with respect to oversight of emergency orders. For those, it kept the full bodies of each legislative house in the approval loop….

As a result, for the Legislature to validly confer oversight authority to the LCC, bicameral adoption and presentment [to the Governor for signature or veto] were required, i.e., the constitutional steps required for a bill to become a law. That simply did not happen here…

Justice Caleb Stegall also joined the majority, but disagreed with Justice Biles, and suggested that, had the concurrent resolution authorized the LCC to act right away, that might have been consistent with the statute:

Part of the LCC's argument is that its action was contemplated by—and incorporated into by assignment—[the concurrent resolution] when the Legislature as a whole adopted it.

To me, this claim is at least colorable in light of the vexing separation of powers problems created when one branch of government delegates its power to another branch as the Legislature has done (in part) in KEMA. Absent a liberal interpretation of the Legislature's ability to continually oversee the Governor's exercise of delegated Legislative authority, the structure of KEMA itself risks violating the constitutional demand of separate powers.

Justice Stegall also addressed the complicated internal inconsistency in the concurrent resolution, which I discussed in part 4 of my earlier post; if you're interested in that, read the opinion.

None of the Justices reached the question whether the Governor's order extending the shutdown to cover churches was inconsistent with the Kansas RFRA or the Kansas Constitution; that remains to be litigated in a separate case, which I expect will be filed shortly. I will also have a post later this morning on that very issue.