Views from Kansas: Predicting Supreme Court’s attitude on COVID-19 mandates tricky business

Governor’s emergency calls never perfect, litigation on orders almost inevitable

By: - September 20, 2021 8:08 am
The former general counsel to two Kansas governors argued it cannot be assumed the U.S. Supreme Court will reject President Joe Biden's vaccination mandates related to COVID-19. (Screen capture/Kansas Reflector)

The former general counsel to two Kansas governors argued it cannot be assumed the U.S. Supreme Court will reject President Joe Biden’s vaccination mandates related to COVID-19. (Screen capture/Kansas Reflector)

LAWRENCE — People betting the U.S. Supreme Court swiftly shelves President Joe Biden’s federal vaccination mandate for private businesses should take into account the justices’ conflicting ideas on individual liberty and the government’s duty to protect the population in a crisis.

Kansas solicitor general Brant Laue, former general counsel to a pair of conservative Kansas Republican governors, said opponents of the Biden administration’s plan to pressure workers to get COVID-19 vaccinations shouldn’t prematurely celebrate simply because there was a conservative personnel shift on the nation’s high court.

“There are a lot of cross-currents in this court,” Laue said. “A lot of different interpretive theories that can take justices that you might think have preconceived notions about things in different directions.”

Biden ordered federal employees to get vaccinated or undergo regular testing for COVID-19. The president plans for the federal government to issue a vaccination order applicable to businesses that could cover up to 100 million Americans. These mandates have become the new frontier in the political battle about handling the worst national health crisis in decades.

The crystal ball discussion emerging at a Dole Institute of Politics on the University of Kansas campus involved Sharon Brett, legal director at ACLU of Kansas; Clay Britton, chief counsel to Democratic Gov. Laura Kelly; and Laue, who worked for Govs. Sam Brownback and Jeff Colyer before his appointment as solicitor general in 2020.

Laue’s boss, Attorney General Derek Schmidt, is seeking the GOP nomination for governor in 2022. Schmidt and attorneys general from 23 other states sent a letter to Biden warning litigation would follow if the administration proceeded with plans to mandate private sector employees get a COVID-19 vaccine, submit to weekly testing or be fired. It’s the type of case that could make its way to the Supreme Court.

Kansas has reported nearly 400,000 cases of COVID-19 in a state with 3 million residents. The Kansas Department of Health and Environment also calculated more than 5,800 Kansans had died and 13,500 people were hospitalized due the virus.

Brett, with ACLU Kansas, said the presence of aggressive COVID-19 variants easily transferred from one person to another could be sufficient to sustain statewide mandates issued by a governor.

“There’s a compelling argument to be made about the state’s inherent police powers to do something about that — to protect the health and safety of the residents of the entire state,” Brett said.

She said finding constitutional balance in disaster emergency orders was difficult. The orders need to be layered with exceptions for people with disabilities, religious objections and health complications, she said. Plaintiffs have responded to state edicts with legal action claiming government mask mandates went too far or didn’t go far enough, she said.

Britton, who worked in the Kansas attorney general’s office and at the U.S. Department of Justice before hired by Kelly, said the Kansas governor’s office preferred decisions be made locally during emergencies. The scope of this pandemic led Kelly to issue a record number of executive orders since March 2020, he said. The number was inflated as Kelly tweaked directives as COVID-19 shifted gears, he said.

“In a judgment call situation, you’re never going to have it exactly right,” Britton said. “You’re going to make the judgment call, and maybe the lawsuit is going to be filed anyway.”

His boss, Kelly, is seeking a second term as governor in 2022.

Britton said the fundamental legal test for the Kelly administration’s executive orders was whether the mandates were reasonable. At outset of the pandemic, he said, a patchwork of county or city orders emerged that led to the governor’s response, with statewide orders on social distancing, face coverings, essential businesses and other restraints.

“The judgment that was made in Kansas and a bunch of other states was that we really need to have a statewide set of rules,” Britton said. “You get a very transmissible infectious disease, it becomes a little bit harder for that to be seen as a strictly local emergency.”

Laue said reality of the pandemic was that government officials had competing political influences. In Kansas, there were numerous differences of opinion between the executive and legislative branches on how to handle COVID-19. It led to vetoes of bills by Kelly and veto overrides by the Legislature.

“Those issues come down to how many votes do you have in the Legislature,” Laue said.

The panel was convened last week at the Dole Institute in observation of Constitution Day. The event was moderated by Lew Mulligan, a research professor of law at KU. He said it was important to appreciate that what was constitutional didn’t necessarily equate to good policy.

“Those aren’t the same thing,” Mulligan said. “We want to think, ‘Well, X is constitutional, therefore it’s good.’ Or, ‘X is unconstitutional, therefore it’s bad.'”

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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