Chutzpah alert: Branstad as defender of the separation of powers

In the busy days before Thanksgiving, I missed this unintentional comedy from Governor Terry Branstad's weekly press conference (hat tip to Todd Dorman):

"There's also a constitutional question about whether the president of the United States has the authority to act unilaterally on issues like this [immigration policy]," Branstad said. "So I expect there's going to be a lot of unanswered questions that I need to get information about and what the impact would have on our state."

Asked if he would take executive action on state immigration policy, Branstad responded, "We don't operate that way in Iowa."

"That's the difference between Washington, D.C., and Iowa," Branstad said. "In Iowa, I'm very careful to recognize the separation of powers and to work with the Legislature."

Where to begin?

Officials representing seventeen states just filed a federal lawsuit claiming that President Barack Obama's "unilateral suspension of the Nation's immigration laws is unlawful." The Obama administration cites precedents supporting presidential action in this area and the executive branch's authority to target unauthorized immigrants for deportation. Others argue that past presidents' executive orders on immigration were different in kind and in scope from Obama's latest action, which could shield up to 5 million undocumented immigrants from deportation. Courts will ultimately decide whether the president exceeded his authority.

What interests me is Governor Branstad's claim that "we don't operate that way in Iowa" because he is "very careful to recognize the separation of powers [...]." Those comments show tremendous chutzpah, or perhaps self-delusion. Todd Dorman explains why, and you should click through to read his entire column. Here are a few excerpts:

Branstad saying he has a narrow, restrained view of executive power is like my kids saying they have a narrow, restrained view of Christmas morning.

This is a governor who routinely wields the blindside, line-item veto, striking bipartisan legislative efforts in recent years to fund environmental protection, mental health services and low-income tax relief. This is the governor who shuttered workforce development centers even after lawmakers funded them, and abruptly closed the Toledo juvenile home with no input from legislators.

Branstad has 85 executive orders under his belt, including 16 since retaking office in 2011. His first two actions after being sworn in for a fifth term were executive orders barring every community in Iowa from using project labor agreements on any project that receives a dime of state money and another making sure thousands of felons who finish their sentences will wait years to reclaim the right to vote. Not exactly limited expressions of executive power.

Dorman also mentions Branstad's executive order creating a new process to help "stakeholder groups" get rid of "burdensome" regulations, and another executive order advancing two contradictory positions: that the Iowa legislature (not the state Natural Resources Commission) should decide whether dove hunters must use non-toxic ammunition, and that Branstad was forced to act after the Iowa Senate failed to assert its authority on the rule banning lead ammunition.

Whereas federal courts have yet to render a verdict on Obama's latest executive order, Iowa courts have had to rein in Branstad's abuses of power on several occasions.

In 1992, a unanimous Iowa Supreme Court ruled that Branstad acted unlawfully when he vetoed funding for public employees' salary increases. The state legislature had funded those raises in accordance with a contract that went through binding arbitration. Branstad decided not to approve the funds because, in his view, the state couldn't afford to pay higher salaries. But that wasn't his call to make.

In 2012, seven different Iowa Supreme Court justices unanimously ruled that Branstad impermissibly used his line-item veto power. The governor had struck language designed to keep Iowa Workforce Development field offices open without vetoing the money the state legislature had allocated to fund those offices.

Earlier this year, a Polk County District Court Judge ordered Branstad to "reopen the Toledo [Iowa Juvenile] home and abide by the duly passed laws of the state of Iowa which established the Toledo Home [...]." Several Democratic lawmakers and Iowa's largest public employee union had filed that lawsuit after the governor closed the Iowa Juvenile Home on short notice--as Dorman mentioned, without consulting state legislators.

In addition, Branstad tried to strong-arm Iowa's Workers' Compensation Commissioner Chris Godfrey to resign in 2011, even though state senators had unanimously confirmed Godfrey to a fixed term expiring in 2015. Those actions led to a lawsuit which the Branstad administration unsuccessfully tried to quash. The Iowa Supreme Court ruled this summer that the case could proceed to District Court.

Although no local government challenged Branstad's executive order banning project labor agreements, I believe that action also went beyond the governor's authority and could have been struck down in court.

Branstad displayed his disregard for the separation of powers yet again when he issued a blanket commutation of 38 life sentences for criminals convicted as juveniles. Instead of embracing the intention of a U.S. Supreme Court ruling that invalidated mandatory sentences of life without parole for juveniles convicted of murder, Branstad did his best to ignore the spirit of that ruling. Rather than allowing the convicts to be resentenced individually, so judges could consider their age at the time of the crime and other extenuating circumstances, Branstad commuted all the sentences to life with the possibility of parole only after 60 years. Regardless of the details of any particular crime, none of the convicts would be eligible for parole until they were in their late 70s, if they lived that long. The Iowa Supreme Court did not rule on Branstad's blanket commutation, but in a split decision on juvenile sentencing last year, the majority opinion cited precedent saying a governor "cannot use the commutation power to increase a defendant's punishment." Increasing the prison terms of the 38 lifers was Branstad's explicit intent when he commuted their sentences, so one could reasonably argue that he abused his power on that occasion too.

Any relevant thoughts are welcome in this thread.

Dorman is probably on the right track when he speculates on why Branstad would claim to believe in limited executive authority:

Branstad's sudden preference for limited power may be no accident, coming just as thousands of Iowans, including conservative eminent domain opponents, urge him to use his authority to stop a planned oil pipeline. His office says it's the Iowa Utilities Board that must make the call. The governor who once fired off an executive order to stop state regulators from banning lead shot for hunting doves is now flying for regulatory cover on the pipeline issue.

Some powerful business interests want that pipeline built and have been exaggerating the potential economic benefits to Iowa. Branstad has consistently tried to give the business community what they want whenever possible.

  • Sadly, none of this is shocking

    The speculation that Branstad will let the Utilities Board decide on the pipeline issue is appalling...and probably very accurate. There is a no limit capacity by Branstad when it comes to hypocrisy. No limit.

    • Terry

      To Democrats complaining about Terry Branstad and other GOP winners,  I say look in the mirror. Your party ran incompetent campaigns with some poor candidates in winnable contests. That's it.

      • in a year like this

        Branstad was going to win regardless of who ran against him. Our chances to beat him were in 1986 and 1990. We didn't nominate the right candidates.

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