With Iowa Governor Kim Reynolds’ order in response to COVID-19 that closed the state’s restaurants’ dining rooms, bars, fitness centers, and recreational facilities, as well as prohibiting gatherings larger than ten people, I thought of the “Peter Parker Principle.”
In Spider-Man, Ben Parker said to his nephew, Peter (who is Spider-Man for those of you who are comic book illiterate), “With great power, there must also come great responsibility.”
Stan Lee, the creator of Spider-Man, didn’t come up with that line himself. Winston Churchhill, in 1906, said, “Where there is great power, there is great responsibility.”
Even Churchill borrowed the phrase. In 1817, British MP William Lamb was recorded, saying, “the possession of great power necessarily implies great responsibility.”
The phrase likely goes back further than that.
My point is that I don’t dispute Governor Reynolds has broad emergency powers under Iowa law, the Iowa Constitution, and U.S. Constitution. She does. David French wrote an excellent “lawsplainer,” explaining the police powers of the state. I highly encourage you to read it.
Just because you have the power to act, doesn’t mean you should.
I am also not questioning the motivation behind her decision. She’s in a difficult situation. I’m sure she is under increasing pressure to act by the media, other governors, and everyday Iowans concerned about the spread of COVID-19 and whether our health care system can handle it. Not to mention a desire to save lives, in particular, the elderly and those with underlying illnesses.
I do not envy the position that Governor Reynolds finds herself over the last week and the weeks to come.
I don’t believe her decision was malicious. I don’t think it is some kind of power grab. I’m sure she does not want to place Iowans under hardship. Her goal is to stop the spread of the virus.
Also, I believe Iowans who ignored public health recommendations or scoffed at pleas for people to practice social distancing and stay home share in the blame. Had people voluntarily done the right thing, stopped being selfish, did their civic duty, and stop acting like they knew better than the Centers for Disease Control and Iowa Department of Public Health, we wouldn’t be at this point.
But here we are.
Today, I believe it is ironic that Iowa’s state motto says, “Our liberties we prize and our rights we will maintain.”
Reynolds’ order does not prize our liberties, nor does it maintain our rights.
The economic impact will be high.
Reynolds’ decision will likely bankrupt some businesses. I think many of these places will feel an economic impact regardless, but this order guarantees it. I’m not as concerned about the employees in the short-term because of the state’s actions related to unemployment insurance.
That does not help business owners who have to pay rent and other expenses regardless of whether their business is open or not.
Wouldn’t it better to come to these businesses with a carrot rather than a stick? Wouldn’t an offer of assistance to those who will implement mitigation protocols or voluntarily close be better?
Would we have 100 percent participation? No, but many would. Also, many businesses were already starting to take steps voluntarily.
Can’t we trust Iowa business owners and Iowans to do the right thing?
Emergency police powers trumps enumerated rights?
The aspect of Governor Reynolds’ emergency order that bothers me the most is the prohibition on gatherings of more than ten people.
It reads, “Social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events of more than 10 people are hereby prohibited at all locations and venues, including but not limited to parades, festivals, conventions, and fundraisers. Planned large gatherings and events must be canceled or postponed until after termination of this disaster.”
I believe most Iowans were already doing this. Churches across Iowa offered live streaming of their services. Events are being canceled left and right. Most people are practicing social distancing.
People were doing this voluntarily.
The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.”
Section one of the 14th Amendment makes it clear that states may not do the same.
I don’t read in the Constitution, “except in cases where people are idiots and ignore public health recommendations; then you can suspend these rights.”
Yes, people have cited case law, pointing out that courts have allowed action like this, especially if it is not just targeting churches.
The effect of the order is still the same. Cite case law all you want; I don’t see the actual text of the Constitution giving a governor that kind of power.
The Constitution of Iowa states in Article I, Section 3, “The General Assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Nowhere in the Iowa Constitution does it give the governor the authority to suspend the freedom of religion enshrined in our Constitution.
In her order, Governor Reynolds cites Article IV, Section 1 and Section 8 of the Iowa Constitution. They read:
“The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the Governor of the State of Iowa.”
And, “He shall transact all executive business with the officers of government, civil and military, and may require information in writing from the officers of the executive department upon any subject relating to the duties of their respective offices.”
Governor Reynolds runs the executive branch. Churches do not fall under the executive branch.
The order also cites Iowa Code § 135.144 (3) as the statutory rationale for her order. That relevant section of the code reads, “Take reasonable measures as necessary to prevent the transmission of infectious disease and to ensure that all cases of communicable disease are properly identified, controlled, and treated.”
In what world is prohibiting people from gathering in groups larger than ten people reasonable? I mean, some people have immediate families larger than ten people! So unless they happen to live together, a family can’t meet together for Sunday dinner after church?
How is this even enforceable? Will Governor Reynolds order the Iowa State Patrol and Iowa Division of Criminal Investigation to monitor churches and homes? Are private homes included in this order? It’s not clear.
And churches were already doing this voluntarily.
Many Iowans, if not most, were already taking steps to follow public health recommendations. As I said before, many churches were doing the same.
Because this order is given in the context of a public health crisis, and because I have encouraged Iowans to take necessary precautions, I am not calling for civil disobedience. I believe, at this time, it would be irresponsible. In any other situation, however, game on.
We the people entrusted Governor Reynolds with great power at the ballot box. Power she needs to exercise responsibly, and I would argue, in this instance, she has not. At the same time, she needs to trust Iowans to act responsibly as well and for us to apply pressure on those who do not.