It's been difficult to make sense of all of the varying guidance and mandates on masking and vaccines from the Centers for Disease Control and Prevention, states and local governments. But in Kansas, where cases are rising, it is also difficult to know who has the power to call the shots since Democratic Gov. Laura Kelly's executive authority remains in legal limbo.
The state's Republican attorney general is expected to appeal a recent ruling saying that the Kansas Legislature's limits to Kelly's emergency powers are flawed and unenforceable, but the court fight has left confusion about the power of the governor and local public health officials to impose rules aimed at combating the pandemic.
While awaiting a final decision, Kelly has yet to take forceful action in response to the resurging pandemic — such as mask mandates she'd issued in the past that could slow the state's economic recovery and that would surely draw strong resistance.
In March, the governor compromised with state lawmakers, agreeing to give up some of her power. When she issued another statewide mask mandate, a panel of state lawmakers voted it down 5-2. By early April, the number of counties with mask mandates dropped to seven, down from 57 in February.
Now, the delta variant of the coronavirus has 84 of the 105 counties in the state caught in a regional hot zone, and none of the 105 has mask mandates in place. Meanwhile, more than half of all eligible Kansans are not vaccinated.
The Kansas Department of Health and Environment reported more than 2,000 new COVID-19 cases since Wednesday, most of which are the result of the new ultra-contagious delta variant.
But on Wednesday, Kelly stopped short of issuing another statewide mask mandate. Instead, she chose to coax.
Even vaccinated Kansans, she said, ought to wear masks indoors in 84 of Kansas' 105 counties. Her guidance mirrored earlier advice from the CDC. She did require most state workers to wear masks on the job.
"I'm as frustrated as any other vaccinated Kansan," Kelly said. "I feel like I did my part. And one of the rewards of that was not having to wear a mask."
"But that option has now been taken away," she said, "because of the delta variant and how much more contagious it is, and how few Kansans, unfortunately, have gotten vaccinated."
Local health officials fear infections and ire
Aften Gardner is the health administrator for rural Wallace County, where there's never been a countywide mask mandate. With 34% of her population fully vaccinated, Gardner said she's worried again.
She's also president of the Kansas Association of Local Health Departments. Gardner said in her opinion nobody wants to draw residents' ire by imposing a mask mandate or repurposing pandemic restrictions — not the governor, not local health officials and certainly not county commissioners. Doing so would provoke surefire vitriol.
"The attitude is very much, 'This is a free country. I'm not gonna make you do anything. You have every right to mask up, but you can't tell me to do anything.' That's pretty much the stance."
She said over the course of the pandemic, the health department's working relationship with county partners and community members "has pretty much been destroyed."
"We have been labeled the bad guys," Gardner said. In fact, around 30% of Kansas' health officers and administrators have left their jobs during the pandemic, many after personal attacks for the public health policies they were the face of.
''Legal anarchy"
That same anger has also been directed at the governor. When reporters asked Kelly if she'd consider reimposing a statewide mask mandate, she deflected.
"We don't want to spend a lot of energy thinking about that," she said, "or diluting our resources in ways that will distract from getting these shots in arms. "
But until the state Supreme Court weighs in, it's hard to know if Kelly's reluctance to act is a question of legal authority or political will.
Her executive authority to respond to emergencies has been hollowed out over the course of the pandemic.
The conservative supermajority in the Kansas Legislature passed laws shifting the state's pandemic response to local county commissions, hamstringing the ability of Kelly and local health officials to respond.
One of the new laws required speedy judicial review for anyone with a grievance of a mask policy or restriction issued by a school board or local government. In the case of a disagreement between a parent and a school board, a court had to hold a hearing on the issue in three days and issue an order within seven.
Kelly's power atrophied so greatly under the law that Republican leaders were able to supersede her requests to extend the state of emergency in June.
However, some power could be restored if the state Supreme Court rules in her favor, agreeing with a lower court ruling that the Kansas Legislature was stepping on the toes of the judicial branch and depriving local governments of due process.
"It is the ultimate legislative stick intended to goad and/or supplant judicial rules and functions," Johnson County District Judge David Hauber wrote. "It promotes the equivalent of legal anarchy."
With Kansas Attorney General Derek Schmidt expected to appeal, he contends the ruling prompted "unnecessary and disruptive confusion," potentially making it difficult for the state to respond to a future disaster emergency. He said it "invited the very sort of 'legal anarchy' that troubled the court."
In her Wednesday news conference, Kelly deflected questions about whether she thought local health officials had the authority to respond to the pandemic.
"I'm gonna leave that to the local units of government and the school boards to decide how they want to interpret what the judge's ruling does," Kelly said.
A later statement said, "Our office does not want to speculate until a decision is reached by the Kansas Supreme Court, which we anticipate will happen soon."
Dennis Kriesel, executive director of the Kansas Association of Local Health Departments, said that the district court decision likely doesn't apply statewide.
Local health officers can do things such as issue a mask mandate and limit the size of gatherings with or without the law. But under the law in limbo, they'd have to get the blessing of their county officials, and commissioners in two of Kansas City's largest metro counties have been reluctant to sign on to recommendations for temporary mask mandates.
"In terms of the ability to issue orders, we have more flexibility now than we did two months ago," Kriesel said. "That being said, I don't think we're going to see nearly the amount of aggressive ordering that we saw in the fall of last year because of the backlash."
Regardless of who has the authority to respond, Kriesel said, public health officials are looking for political cover.
"You could probably, on one hand," he said, "count the number of local health officers that would be willing to issue an order without knowing what their commissioners' stance was."
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