Photo credit: Gage Skidmore (CC-By-SA 2.0)
Photo credit: Gage Skidmore (CC-By-SA 2.0)

A question was brought up by State Senator David Johnson (I-Ocheyedan) about whether or not Lt. Governor Kim Reynolds when she takes the reins from Governor Terry Branstad, once he is confirmed as U.S. Ambassador to China and resigns as Governor, will be able to appoint a new Lt. Governor. He also asks whether or not she would even hold the title of Governor.

I appreciate that State Senator Johnson is bringing up these constitutional questions. If we care about the Constitution, we should be willing to discuss these matters.

This issue was first brought up in The Des Moines Register back in December.

The Branstad-Reynolds Administration asserts that she will be the Governor and can appoint a new Lt. Governor.

Democrat Attorney General Tom Miller’s office initially agreed:

“Our office has researched the law and consulted with the governor’s office. We concur with the governor’s conclusion that, upon the resignation of Gov. Branstad, Lt. Gov. Reynolds will become governor and will have the authority to appoint a new lieutenant governor,” attorney general spokesman Geoff Greenwood said in an emailed statement.

Today, Miller changed his mind in his formal opinion given at Johnson’s request:

While the “the lieutenant governor becomes governor and has the title of Governor,” the opinion further adds that that person does not have constitutional authority to appoint a new lieutenant governor. “In other words, upon a governor’s resignation, the lieutenant governor will hold both the offices of Governor and Lieutenant Governor. There is no vacancy to be filled,” according to the opinion.

What changed? Well, certainly not the law or the Iowa Constitution, which leaves us with partisan politics.

The constitutional language in question is in Article IV, Section 17 of the Iowa Constitution reads:

In case of the death, impeachment, resignation, removal from office, or other disability of the Governor, the powers and duties of the office for the residue of the term, or until he shall be acquitted, or the disability removed, shall devolve upon the Lieutenant Governor.

What does “devolve” mean?

It just means the passing of authority in this instance. Because it does not have the same explicit language that the 25th Amendment to the U.S. Constitution has some are raising a stink. Section 1 of the 25th Amendment (ratified on February 10, 1967) says that in the case of removal of the President from office, his death, or his resignation “the Vice President shall become President.”

In the event, the President needs to step aside temporarily, or if he is in a position where a majority of his cabinet believes he is unable to discharge his duties, the language in Section 3 and 4 address that. Authority and power are passed to the Vice President then who becomes the “acting President.”

Section 2 of the 25th Amendment explicitly gives the President the authority to nominate a new Vice President when the office is vacant. Both the House and Senate then confirm by majority vote.

Going back to the Iowa Constitution does “devolve” mean the Lt. Governor becomes the “acting Governor” or “the Governor.” I think it depends on the situation. If Governor Branstad were to say fall ill, unable to discharge his duties then Lt. Governor Reynolds would be in a position of “Acting Governor” unless he were to resign. If he regains his health, if the disability is “removed” he can resume his duties.

Detractors will also point to Section 15 which says, “The Lieutenant Governor, while acting as Governor, shall be paid the compensation and expenses prescribed for the Governor.” This section of our Constitution again describes a temporary situation. Because if the Governor is out of office permanently, then the Lt. Governor is not acting as Governor, the Lt. Governor becomes the Governor.

Miller does not dispute this. He says Reynolds will become Governor, not just acting Governor.

Those who raise a stink about this (mainly partisan Democrats) then point to Article IV, Section 19 that says if there is a vacancy in the office of Governor or Lt. Governor then powers and duties then devolves to the President of the Senate. Currently, that person would be State Senator Jack Whitver (R-Ankeny).

Here’s the problem. This section is written if there is a vacancy in the office of both the Governor AND Lt. Governor.

Bleeding Heartland, a liberal blog in Iowa, points out that Reynolds appointing a new Lt. Governor would break precedent, but acknowledged our current situation is different: “The four previous times an Iowa lieutenant governor assumed the governor’s powers, the lieutenant governor’s position remained vacant for the duration of the term. Those instances were shorter time spans than the nearly two years left before the next gubernatorial election.”

Also, the law has changed.

If Reynolds becomes Governor like Miller says then Iowa law states she has the authority to appoint a new Lt. Governor for the remainder of the term. In 2009 the law was changed to clarify this.

It reads, “an appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term,” (Iowa Code 2017, Section 69.8).

I would be remiss not to point out that the law changed when Democrats controlled the Iowa House, Iowa Senate, and Governor’s office. There was also bipartisan consensus that the Governor, who at that time was Chet Culver, should be able to appoint a new Lt. Governor should the office become vacant.

Most of those objecting to this now (State Senator Johnson being the exception) are doing so for partisan reasons, not out of concern for the Constitution. Could Reynolds hold off on appointing a new Lt. Governor? Sure, there is a succession plan in place, and the Governor’s office would remain in Republican hands, but she should not have to wait when the law is on her side.

The opinion that even though Reynolds is Governor, and has the authority that comes with it, but still can’t appoint a Lt. Governor is nonsensical.

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