Skip Navigation

Research & Commentary: Kansas Committee on Federal and State Affairs Is Seeking to Add Legislative Checks to Gubernatorial State of Disaster Powers

May 2, 2022

In this Research & Commentary, Samantha Fillmore examines a House Bill in Kansas that would rein in Governor's powers during a state of disaster.

The Kansas Committee on Federal and State Affairs has introduced and held hearings on House Bill 2416, a bill that would amend the Kansas Emergency Management Act and rein in executive powers granted to the governor during a state of disaster emergency.

The legislation modifies the procedure for the declaration and extension of a state of disaster emergency and authorizes the legislative coordinating council and the legislature to take certain actions related to a state of disaster emergency. Moreover, HB 2416 would prohibit a governor or the state board of education from closing private schools during such a period.

This bill ensures protection from gubernatorial overreach by specifically stating that all powers granted the to the governor in the Kansas Emergency Management Act shall be terminated with upon a state of disaster emergency’s conclusion.

HB 2416 would require a governor’s executive order to be approved by the legislative coordinating council, ensuring its conformity with the constitution, bill of rights, and statutes of the state of Kansas; it also requires the governor to justify the necessity for and provide the exact language of the executive order.

No less than 24 hours prior to submitting the executive order to the legislative council, the governor must also submit the proposed order to the attorney general of Kansas, who will then review and provide an opinion on the order’s legality.

Additionally, the bill stipulates that no state of disaster emergency may continue for longer than 15 days unless ratified via a concurrent resolution by the legislature. If an extension is decided upon, the resolution shall state the duration of the extension shall state whether the governor is authorized to exercise emergency powers.

House Bill 2416 is a step in the right direction to curbing gubernatorial power during state of disaster emergencies, especially after the coronavirus pandemic shed light upon how easily these can be abused.

During the pandemic, many Americans saw their respective governors wield unprecedented power with seemingly unlimited emergency declarations. This overnight shift in governance, coupled with a plethora of governors who abused their pandemic emergency powers, has left several states reevaluating constitutional statutes pertaining to emergency provisions and powers granted to the governor during a state of emergency. With HB 2416, Kansas is no exception.

This change to the current Kansas Emergency Management Act is paramount to prohibit governors present or future from excessively extending state of emergency powers long past the point of necessity, and wielding other powers that affect the economy, small businesses, and education.

Simply put, HB 2416 creates commonsense restrictions and limitations on gubernatorial powers. Furthermore, it reintegrates the legislature into the governing process during states of emergency. It aligns with many of the principles developed by The Heartland Institute during the pandemic, which legislators can reference upon any gubernatorial abuses of power.

Some of these ideas and principles include:

  1. The ability to immediately nullify an emergency proclamation via resolution.
  2. The creation of time limitations for an emergency order, renewable by the legislature.
  3. The ability to pass a resolution that requires the governor to call a special session to approve of an emergency proclamation if the legislature is out of session.
  4. Permitting an interim committee or group of legislative leaders to extend or reject emergency proclamations.
  5. The imposition of specific limits to executive authority during an emergency proclamation (i.e., restricting the governor from unilaterally closing businesses, closing houses of worship, shutting down freedom of the press, and rescinding the right to bear arms).

There is a clear appetite among lawmakers and constituents to restrict gubernatorial overreach, especially after governors across the country dictated policy like a king throughout the pandemic. Via this legislation, Kansas lawmakers can catch up to their peers in other states who have already taken measures to rein in executive authority.

Co-equal governance, checks and balances, and the decentralization of power are bedrock principles of American democracy. Yet, these fundamental principles have been AWOL in Kansas since the pandemic.

Fortunately, lawmakers in Kansas are beginning to stand up to gubernatorial overreach by reasserting their rightful place as a much-needed check against the executive branch.

 

The following documents provide more information about executive authority in a state of emergency.

 

Testimony Before The Georgia House Committee on Judiciary, Scoggins Subcommittee, On House Bill 358, Restoring The State Legislature’s Role In Emergency Management 

Testimony Before the Georgia House Judiciary Committee regarding legislative and executive authority in a state of emergency.

Andrew Cuomo Is Just a Governor, Not a God

Cuomo has issued multiple statements in an attempt to quell the backlash and frustration of New Yorkers and lawmakers in Albany to no avail.

Governors, Not Gods – A Heartland Institute Webinar

The Heartland Institute hosted a webinar on Aug. 27, 2020, for state legislators to discuss how they can rein in governors, who wield seemingly unlimited powers in the wake of COVID-19. For many months, Americans have been abhorred by out-of-control governors who have imposed draconian lockdowns, which have decimated small businesses and people’s livelihoods. For instance, Gov. Andrew Cuomo has been roundly criticized for his heavy-handed and ineffectual response to the coronavirus outbreak in New York, which has drawn substantial blowback. Cuomo has also attempted to coverup his disastrous policy of forcing elderly patients with COVID-19 to return to nursing homes, where they spread the deadly diseases like wildfire among New York’s most vulnerable. As the days grow shorter and the temperatures dip lower, now is the time to begin exploring oversight over dictatorial governors and restore power where it rightfully belongs: With we the people, not I the governor.

___________


Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s Government Relations department, at governmentrelations@heartland.org or 312/377-4000.

Article Tags
Constitutional Reform
Author
Samantha Fillmore is a State Government Relations Manager for The Heartland Institute.
sfillmore@heartland.org @GRHeartland