After having lunch with Steve Deace of WHO Radio on Tuesday, he got me thinking runaway judiciaries.  They are, by and large, a barrier to implementing conservative principles legislatively and in executive policy.  Obviously the big elephant in the room in Iowa is the April 3, 2008 ruling by the Iowa Supreme Court to strike down Iowa’s Defense of Marriage Act.

But could a runaway court stand in the way of say Jonathan Narcisse’s ideas for smaller government?  Well, when Governor Mike Huckabee was running for President there was the criticism of increased taxes based on court rulings that said the state government in Arkansas had to spend more on education.  So basically in Arkansas you have the judicial branch bullying the executive and legislative branches into increased spending.  So yes a runaway court can, if it is allowed to.

How in the world is that a constitutional function of the judicial branch?  It’s not.  We all agree that constitutionally ultimately a state supreme court or the United States Supreme Court has the ability to strike down state or federal laws respectively.  When the Iowa Supreme Court struck down the Defense of Marriage Act, constitutionally they were within their purview to do so.  Setting the decision itself aside, as we could certainly debate whether or not it was a good decision, what they did next is what really stirred the pot.  They placed a date when same-sex couples could apply for marriage licenses.  They essentially made law.

What they should have done, and what would have been the constitutional thing to do, is to send it back to the legislature for them to provide a remedy.  Which could come either in the form of passing a law that would allow same sex marriages in Iowa or amending the constitution to protect the traditional definition of marriage.  But they didn’t do that.

So how to deal with runaway courts that stray outside of their constitutional role and think they also are the legislative branch?  There isn’t much difference among the Republican Gubernatorial candidates in how they would address this except one.  Bob Vander Plaats is on record saying that on day one he would place a stay on same-sex marriages until the General Assembly rewrites the law or Iowans are allowed to vote on the definition of marriage being between one man and one woman.

Deace and others who support this action says that it would force a conversation on the constitutional roles of the branches of Government.  Or perhaps it will give the perception that social conservatives will ignore state law and the constitution in order to achieve their agenda.

Vander Plaats says the authority to place a stay is given to the Governor in the Iowa Constitution in Article IV, Section 1 when it vests the supreme executive power of the state “in a chief magistrate, who shall be styled the governor of the state of Iowa.”  Also in Article IV, Section 9 under execution of laws it says, “He shall take care that the laws are faithfully executed.”

I completely agree with Vander Plaats that the Iowa Supreme Court misused its power by not allowing for a legislative remedy (Article V, Section 4).  However, in reading the Iowa Constitution, I fail to see where a remedy from the executive branch exists.  The Governor is to “take care that the laws are faithfully executed,” however Iowa Code section 595.2 (Defense of Marriage Act) has been struck down and declared unconstitutional.  So what is there to “faithfully execute” in this regard?  The Supreme Court has been given the constitutional authority to strike down laws, because they didn’t place a stay until the Legislature could act doesn’t mean the law can still be applied.

The only remedy is through the Legislative Branch.  This can be done through the amendment process (Article X, Section 1).  They could even impeach Supreme Court justices (Article III, Section 19 & 20).  Nowhere do I see the Executive Branch given the authority to place a stay on an Iowa Supreme Court ruling.

Even when it comes to appointing justices & judges there are limitations placed on the Governor (much like Alaska), (Article V, Section 15 & 16).  The Governor can only appoint Justices and Judges for a list of nominees given to him or her by an appropriate judicial nominating commission, and if the Governor doesn’t appoint within 30 days it falls to the Chief Justice of the Iowa Supreme Court.

Deace believes that if this executive order is given to place a stay on the Supreme Court ruling a couple of things could happen.

  • It would force the Legislature to vote for same-sex marriage or to vote to allow the citizens of Iowa to vote on this manner.
  • Vander Plaats would be impeached.

Unless the make-up of the Legislature changes in 2010 to give a Republican majority I don’t think it would force a vote.  Here is what I would believe would happen.

  • Nothing, contrary to what the Vander Plaats campaign and/or Steve Deace believe County Recorders are not under the authority of the Governor.  They are accountable to their county constituency.  Some may go along with it, but I would say that most would likely ignore the order.
  • It is unenforceable.  County Sheriffs are not under the Governor’s authority, so unless he would place a state trooper in every county recorder’s office or mobilize the National Guard there is no way his order could be enforced.  He will have accomplished making himself look weak.
  • If he were to try something like that he would be impeached, rightly, for an abuse of executive power.
  • This would bring out all sorts of people to file lawsuits tying up the administration indefinitely in a court process trying to defend this action.  In the end they would lose at the expense of who knows how much in taxpayer money.  Also losses in court would just further give the Judicial branch opportunity to extend itself into other matters.
  • He would set up a Democratic victory in 2014 because he turned the statehouse and Terrace Hill into a circus with rhetorical antics rather than doing what would truly bring change.

What can truly be done?  Encourage voters to vote no on the retention of three of the justices who are up for a retention vote in 2010 (Article V, Section 17).  They have violated their office and acted in an unconstitutional manner.  Let’s free them up to run for the Legislature if they so wish.  The gubernatorial candidates can highly encourage that.  The Governor can encourage that for the rest of the justices when they are up for retention.  It would send a clear message to those on the Court, we will not tolerate our Courts acting beyond their Constitutional purview.

Also the Governor can apply pressure on the General Assembly, by extending the session or calling for special sessions (Article III, Section 2, Article IV, Section 11), and generally causing gridlock until they address this issue.  All of that is within a Governor’s constitutional authority to do.

The voters can also vote against members of the legislature who are blocking our ability to vote in this manner.  The point of the matter is that there are no quick fixes, and this is something that should have been addressed long before now.  We need to approach this the right way.

To the Vander Plaats campaign, Steve Deace, and others who support this action:  It may seem like bold leadership to make promises such as this, but when you lack the authority to back it up it will only demonstrate weakness.  It will also weaken the office of Governor as a result.  The Iowa Supreme Court was wrong in not placing a stay until the Legislature could act.  Governor Chet Culver should have ordered a special session to address it.  However, violating the Iowa Constitution in order to address a violation in the Constitution will do nothing to provide a remedy.  Two wrongs never make a right.

6 comments
  1. As the Federalist Papers show, the founders didn’t realize they were laying the groundwork for an all-powerful judiciary. In fact, they believed quite the opposite.

    But for some reason we’ve accepted the judiciary’s word that what they say, as opposed to the other “equal” branches, goes.

    We need to start balancing the judiciaries. Even if it took an almost impossible to achieve super-majority (e.g., 70-90%), the Congress/legislature + the executive should be able to vacate a judicial decision. I’d love to see that constitutional amendment on some state ballots. In time it might even make it into the federal Constitution.
    .-= ChrisB´s last blog ..Christmas Spirit =-.

    1. @ChrisB, I agree that their needs to be further checks and balances on judicial branch power as it is imbalanced.

      I just have a problem with Vander Plaats approach, and I am not a huge fan of executive orders unless it is dealing with executive branch policies, etc. Anything that stretches beyond that is, in effect, law and out of bounds of executive branch authority which I believe his executive order would be.

  2. Good post, Shane. Interesting stuff. The people need to send a message to the Judiciary by getting involved in the retention process. That would send the snowball downhill, I think.

    1. @Eric Goranson, Yes I think that would send the clearest message than anything else we could do.

      You could even take the marriage issue out of it and focus instead of the separation of powers issue, that we can’t allow our Supreme Court justices to violate the very constitution they are supposed to uphold and interpret by legislating from the bench.

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