State legislators hope to add checks on governor's emergency powers
Tuesday, January 12, 2021
Correction Jan. 13, 2021: A previous version of this story stated Gov. Reynolds had yet to issue a mask mandate. A proclamation (link) requiring the use of face masks within certain spaces was issued by the governor Nov. 16, and a story describing the proclamation (link) was posted on the DCN's website the same day.
It's been almost 10 months since Iowa Gov. Kim Reynolds issued the first public health disaster proclamation in response to COVID-19. Portions of the declaration, such as business closures and limits on event attendance, have been extended and modified during those months through the use of the governor's emergency powers — some state lawmakers are interested in taking a look at placing checks and balances on those powers.
"The discussion isn't so much on how Governor Reynolds has acted," State Rep. and House Speaker Pro Tem John Wills of Spirit Lake said. "The discussion really is that we're finding our governor, no matter who it is, has a tremendous amount of emergency power with very little if any legislative input. I think Governor Reynolds is doing a great job, but we've really got to look at checks and balances."
State Sen. Zach Whiting of Spirit Lake intends to take the lead on such a bill. Both he and Wills said the bill would be aimed at preventing abuse of emergency powers by future governors. Whiting said, although the current pandemic exposed that potential, it's not intended as a direct response to Reynolds' proclamations — the governor has signed more than 25 proclamations extending or modifying the original public health disaster proclamation.
"In my mind, it doesn't need to be a Monday-morning quarterback of the decisions that have been made, because I think there's some people that are unhappy that the governor's gone too far, and there's some people that are unhappy the governor hasn't gone far enough," Whiting said. "What I want to do through this whole conversation is lay out very clearly and clarify the parameters of when emergency powers can be used — what constitutes an emergency — and then place meaningful limits and checks on the use of that power."
Whiting hoped to gauge support in the Iowa Senate soon after the legislature convened for the current session Monday. The day also happened to be marked by crowds protesting inside the Capitol rotunda in opposition to face mask requirements during the ongoing pandemic. Reynolds issued a proclamation Nov. 16 instructing all people two-years of age or older, with some exceptions, to wear masks when inside a building open to the public and within 6 feet of another person from outside their household. The proclamation also instructed people working inside state government buildings under the control of the executive branch to do the same. With the previous legislative session cut short due to the pandemic, Whiting said legislators didn't have the chance to take on the issue of executive powers until now. Without the governor calling legislators back to Des Moines early, at least two-thirds of the lawmakers themselves would have to agree to convene a special session.
"It's a political reality of it," Whiting said. "The governor's not going to call us back to limit her powers and, even though the Republicans have the majority, the Democrats won't call us back for a special session to limit the emergency powers. So this session is the first crack we've had at it."
That said, Whiting hopes discussions between the parties will be productive. State Sen. Zach Wahls of Coralville, who began his freshman term as a state senator the same year as Whiting, has been named the Iowa Senate Minority Leader, and Whiting hopes that connection will help pave the way for bipartisan participation on the bill.
"We've always been able to have good, productive and respectful conversations, and I absolutely expect that from him and his leadership, and I hope that it projects all the way through rank and file members so that we can have these difficult conversations," Whiting said. "Maybe we do pass a law. Maybe we decide this is the worst idea in the history of the world, but we have to have the conversation before we can get there."
Whiting also said he feels, if the legislature doesn't at least discuss the issue, it will have effectively ratified emergency powers as they are and hamper future legislators should the governor's powers be abused.
Interest in the bill is growing, according to Whiting, and he hopes to make a push for the bill during this first week of session in order to give his fellow legislators time to comment on or edit the bill's language. He expects that discussion will help iron out details such as a potential period in which the governor could exercise her powers after which the legislature would become involved.
State Rep. Megan Jones of Sioux Rapids said some members of the Iowa House are a bit apprehensive of the potential bill.
"We are still in the midst of COVID," Jones said. "What I'm hearing from a lot of my colleagues — not all of them — in the House is that we need to let this simmer. We need to let this work out, then we can reflect on things like that. Right now, when we're in the heat of it all, it's really difficult to know what we've done wrong or what we've done right or what we need to change. I'm a little hesitant to dig too far into that, because we're still in the middle of it all."
Jones said she's somewhat concerned the bill could make the state's future emergency responses less timely and flexible, adding that's why the current emergency powers are structured as they are.
"It gets really tricky to kind of pigeonhole ourselves into one particular procedural motion," Jones said. "Some people have said to convene the legislature. Others have said go through the legislative council, which is a small committee of legislators who can meet over the phone and they can vote over the phone. That seems like it's more realistic, but we also had the derecho this summer, and people had a difficult time getting internet going, getting phone access and things like that. It's really hard to know what an emergency would look like and how we could react quickly in those situations. By virtue of it being an emergency, we don't know what kind of infrastructure is down."
Wills expressed his support for the potential bill, but Jones wasn't as sure. She said her vote would depend on the final bill's scope.
"If there's really the push to get that kind of bill moving, I'm going to work on it to make sure it's done correctly," Jones said.
The bill would also have to contend with a potential veto at the governor's desk. Just like calling a special session, it would take a two-thirds majority from legislators to overcome a veto. Though Republicans hold majorities in both the Iowa House and Senate, Jones said it's possible the necessary votes could peel away quickly.
Wills said he and a group of legislators had hoped to meet with the governor ahead of session in mid-December to discuss a bill on executive powers, but the meeting had to be canceled due to other calls for the governor's attention. Wills hopes the meeting can be rescheduled soon.
"She's got the experience, and she knows what the emergency powers are like, so we wanted to find out what she felt is absolutely needed — what she felt was acceptable to reduce or pull back on," Wills said.
Whiting said he hopes to not only get input from the governor's office but also mental health professionals, teachers parents and even students, adding he doesn't want their viewpoints to be lost in the conversation.
"As a policy maker, I have to consider all the factors," Whiting said. "I can't just look at the public health. I have to look at the public health, the economic health, the social and mental well being of people, and those things are all being effected."