When is a Governor a Governor?

Pete McRoberts, a policy attorney in Des Moines who has worked in legislative, Congressional, and statewide offices, reflects on Attorney General Tom Miller’s formal opinion on the coming transfer of power. -promoted by desmoinesdem

Plenty of time has been spent over the past few months on addressing the rare constitutional, legal, and political questions regarding the succession clauses of the Iowa Constitution and corresponding state law for when vacancies exist in state elected offices.

In plain English, the question we have to answer – not very often – is how does it work when a Governor is no longer able to perform his or her duties? This question was answered a handful of times in Iowa over the past hundred years. The most recent instance was close to 50 years ago. The Constitution has been amended since then, in a way that sits in the same pew as that question, but still somewhat distant that our immediate question as to the authority of a successor of a Governor.

The first piece of the vacancy and succession questions is whether a successor is a Governor. The two times that has happened in a modern Governor’s office – in the 1950s and 1960s – the Constitutional matter was answered with a “yes.” With the pending resignation of Governor Terry Branstad, it is sensible to not only dust off historical questions, but to take a look to see how the Constitution and laws apply now. The question is simple; “will Lt. Gov. Reynolds be a Governor, or will she be an ‘Acting Governor?”

The second question relates to the powers of a Governor to fill vacancies, specifically, to the office of Lieutenant Governor. For context, in 2009, the Legislature passed and the Governor signed a law to confirm how the Constitutional mechanism would function in that setting. The law was simple; it states that in the event of a vacancy in the office of the Lieutenant Governor, that the Governor will appoint a Lieutenant Governor for the balance of the otherwise vacant term.

Earlier today, the Attorney General issued a formal opinion on these two questions.

The opinion states two things. First, it states that a Lieutenant Governor becomes Governor at the moment the powers and duties of the office of the Governor devolve. Very simply, if you’re the Lieutenant Governor, and the Governor’s office becomes vacant, the powers and duties devolve upon you – and you are the Governor of Iowa. It is literally an automatic process and is a component of being elected to the office of Lieutenant Governor. There is no “Acting Governor” in Iowa when that happens.

Second, and more controversial, is the question about whether the successor – whether “Acting Governor” or Governor can appoint a Lieutenant Governor. The first part of the opinion is very clear. Because there is no “Acting Governor,” the person holding the office of Lieutenant Governor is the Governor of Iowa upon the vacancy at the top. The question assumes that one person may not hold both offices – Governor and Lieutenant Governor.

The opinion recommends otherwise. While stating that a vacancy in the Governor’s office automatically makes a Lieutenant Governor the Governor, it also states that a Lieutenant Governor becoming Governor does not create a vacancy in the number two spot. It states that the offices merge, and for that reason, the new Governor is also the Lieutenant Governor. The opinion then states that because there is no vacancy in the office of Lieutenant Governor, that there is no need to address any potential questions regarding the 2009 law, which expressly allows a Governor to appoint a new Lieutenant Governor to fill a vacancy in that office.

To recap:

1) The Lieutenant Governor is the Governor upon a vacancy in the top job.
2) The Governor is also Lieutenant Governor, so there is no vacancy in the second to top job.

The reasoning behind this recommendation is noble, specifically, because of the general premise that people in the line of succession should be elected by voters to get there. The Constitution provides a few paths to that, but anyone can agree, it’s not very clear. Yet, this opinion doesn’t address the elected piece. Its author attempts to do that, but its language itself misses that key point. This opinion removes the option of a new Governor appointing a Lieutenant Governor on policy grounds – that the second in command should be elected.

But, that means that the opinion recommends that one Governor has a different set of powers and duties than another Governor based upon how those powers and duties arose. And it also states that a Governor is a Governor, but when one of them held the office of Lieutenant Governor first, then they have fewer powers and duties, because the new Governor is still Lieutenant Governor.

We can go as long as we need to on the constitutionality of this recommendation. Just for starters, if a new Governor is also Lieutenant Governor, then is that person their own successor? According to this opinion, yes. And yet, that Governor has all the powers and duties of any other Governor. A plain reading of the opinion and the law doesn’t allow these two things.

The opinion provides a clear path to resolving the issue for any Governor taking office in this rare but timely situation. It explicitly states that a new Governor, upon whom the power and duties were devolved, does not take an oath to become the Governor. Upon being sworn in as Lieutenant Governor, such a thing is predicted, and part of those duties. In the federal system, referenced in this opinion, for example, the Vice President is automatically the President upon a vacancy. There is no need for a Vice President to resign that second office – the power devolves, and that means a new President is no longer Vice President.

This opinion adds a step, but reaches the same conclusion. A full Governor, having gotten to that office due to a permanent vacancy – in this case, a resignation, is still Lieutenant Governor, in addition to being Governor. The new Governor does not simply exercise powers and have duties; she is the Governor.

The answer to the questions presented here is simple. To avoid the conflict suggested in the Attorney General’s opinion, any Governor who attains that office through a vacancy at the top must then affirmatively trigger the vacancy in the number two spot; something clearly anticipated in the Constitution – a Lieutenant Governor can most certainly step down. The Governor, who is also the Lieutenant Governor under this opinion, would simply resign from the second office upon becoming Governor. That office is then clearly vacant, and the Governor may then appoint a Lieutenant Governor.

The Attorney General’s opinion specifically avoids addressing the general constitutionality of the appointment law. It states there is no reason to do so when a Governor and Lieutenant Governor are the same person. It also states that the full powers of the office are held by a new Governor. For that reason, the current law – allowing a Governor to appoint a Lieutenant Governor – would clearly apply to a former Lieutenant Governor who, even for a moment, held both of the top state offices at once but then does not. At that time, any reading of the Constitution, state law, and the new Attorney General’s opinion, can agree that a vacancy in the number two spot exists, and that the new Governor can fill it.

Anyone can reasonably question whether such legal and political acrobatics should be necessary, or whether they are necessary. The Attorney General’s opinion is one piece of what is a rare view into Constitutional decision making inside state Government. These things don’t happen often, and when they do, there will be no shortage of differing views. But this is a simple question: when is a Governor a Governor? The legal question takes some thought, but there’s an answer. The political question will be answered in 2018. Neither of these things are before Iowans for the first time in our history. It’s time to answer the questions, and to move on.

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