North Carolina Republican lawmakers started the trend after losing the governor's race in 2016. GOP legislative majorities in Michigan and Wisconsin followed suit late last year, seeking to hamstring newly-elected governors and the Michigan attorney general. Kansas Republicans are now trying to limit the appointment power of that state's Democratic governor.
Iowa House Republicans took their own step toward "banana-republic style governance" on April 23, voting for unprecedented restrictions on Attorney General Tom Miller's ability to make legal decisions.
The bill's floor manager, State Representative Gary Worthan, admitted his proposal stemmed from political disagreements with Miller, whom Iowans elected to a tenth term last November.
Worthan chairs the Justice Systems Appropriations subcommittee in the House. He ranted about Miller during last year's floor debate on the bill funding agencies and departments in his purview.
While he claims that they are financially stressed, he seems to have ample resources to provide the funds and the man-hours to participate in multiple civil actions beyond the borders of our state. [...]
[T]he blatant partisanship of this attorney general as he participates in civil suits across the nation is a disservice to our state and our people. He and he alone must decide whether he serves the people of the state of Iowa or the base of the Democratic Party.
Worthan was bent out of shape because Miller had joined various efforts to challenge President Donald Trump's policies.
This year's justice appropriations bill, Senate File 615, originated in the upper chamber and cleared the Senate along party lines on April 15. As the House Appropriations Committee considered the bill three days later, Worthan filed a strike-after amendment including language unrelated to state spending. His proposal would limit the attorney general's authority as follows (emphasis added):
(2) (a) Prosecute in any other court or tribunal other than an Iowa court or tribunal, all actions or proceedings, civil or criminal, in which the state may be a party or interested, when requested to do so by the governor, executive council, or general assembly. (b) Defend in any other court or tribunal other than an Iowa court or tribunal, all actions or proceedings, civil or criminal, in which the state may be a party or interested, when, in the attorney general’s judgment, the interest of the state requires such action, or when requested to do so by the governor, executive council, or general assembly.
Miller said in a written statement on April 18,
Fundamentally, the office of the Attorney General should be the one to make decisions concerning litigation, especially concerning the rule of law. There are serious separation of power concerns when the Legislature tries to restrict the authority of the Attorney General.
We believe Iowa would be the only state in the nation to have these restrictions on the power and duties of the Attorney General. As written, the language would affect far more than lawsuits against the federal government and would limit our ability to act on such issues as consumer protection, antitrust violations and Medicaid fraud.
This bill would make it harder for the Attorney General to serve and protect Iowans.
Separation of powers may come into play because the attorney general is
part of the judicial branch in Iowa. CORRECTION: The Attorney General's office is part of the executive branch, but the position is mentioned in Article V of the state constitution, dealing with the "Judicial Department." The separation of powers question relates to lawmakers attempting to take powers away from an elected official.
Miller further argued in a guest column for the Des Moines Register,
In 2018, we joined six lawsuits as a named party against the Trump administration. These include one challenging the repeal of the "net neutrality" rules, because we fear that the rule would discriminate against some users of the internet, in particular those rural residents who have few or no service providers.
We’ve also sued U.S. Education Secretary Betsy DeVos for reversing protections to erase federal student loan debts for students who were defrauded by their for-profit schools. Other administrative actions would leave consumers unprotected from many types of exploitative loans, such as payday lending.
More recently, we joined a multistate effort to uphold portions of the Affordable Care Act, so that Iowans with pre-existing conditions could keep their coverage.
Ultimately, we take such actions because we believe administration officials violated the Constitution and congressional or agency authority. No one, not even the president, is above the law.
The House took up Senate File 615 on April 23; you can watch the debate on this video. Worthan introduced a new version of his strike-after amendment, saying Republicans had tried to "whittle this down so that it's very specific that it only applies to suits that he might file outside of the state of Iowa." Here's the revised language:
(2) (a) Prosecute in any other court or tribunal other than an Iowa state court or tribunal, all actions or proceedings including signing onto or authoring amicus briefs or letters of support, civil or criminal, in which the state may be a party or interested, when requested to do so by or with the approval of the governor, executive council, or general assembly.
(b) Defend in any other court or tribunal other than an Iowa state court or tribunal, all actions or proceedings including signing onto, civil or criminal, in which the state may be a party or interested, when, in the attorney general’s judgment, the interest of the state requires such action, or when requested to do so by the governor, executive council, or general assembly.
(c) Subparagraph divisions (a) and (b) shall not be construed to affect any pending litigation in which the attorney general is engaged as of the effective date of this Act.
(3) The authority of the attorney general under this paragraph shall be determined at the time the action is initiated. Transfer of an action to a different court or tribunal shall not affect the attorney general’s authority under this paragraph if the attorney general had authority at the time the action was initiated.
Democratic State Representative Marti Anderson offered an amendment to remove those passages from Worthan's amendment. Denouncing what she called an "overreach" and a "power grab," Anderson told colleagues, "I know the attorney general. I worked for him for 22 years, and my husband worked for him for 32 years." Every action in his office is "carefully vetted."
The attorney general is "a duly elected official," Anderson added. "He's not under the governor. How dare we tie his hands?" She asked Republicans to remember Miller's work on nationwide consumer protection efforts, such as settlements with tobacco companies (which brought a billion dollars to Iowa) or Wells Fargo bank.
Democratic Representative Brian Meyer asked Worthan to yield to some questions (starting around 6:54:00). My partial transcript of their testy exchange:
Meyer: "What problem are we fixing?"
Worthan: "Well, as Representative Anderson just stated, that this is political."
Meyer: "You would agree it's political?"
Worthan: "I would agree it's political. [...] But that sword cuts both ways. It's political because this attorney general has taken part in out-of-state suits that are completely contrary to actions by the legislature that were signed by the governor. And those are the types of actions that we are trying to restrict. The governor and the legislature set the agenda for the state of Iowa, and not the attorney general."
Meyer: "What specific actions are you referring to when you say they're contrary?"
Worthan: "Uh, I could bring those actions up. There are a couple of very obvious ones, and this discussion would then devolve into a debate on the underlying subject of those actions. I think you know what actions I'm talking about, and--"
Meyer: "I do not, so I'm waiting with baited breath. I can't wait to hear what actions you think are contrary to what this body or the governor has done.
Worthan: "Representative Meyer, feigning ignorance does not become you."
Meyer: "I'm very good at it, but I just want to know, because I don't know what he has done that's contrary to what the legislature or governor want. [...] Is it the tobacco? Is it tobacco?"
Worthan: "No, it's not the tobacco. All you need to do is go back to 2017. There are two actions in 2017 that were absolutely contrary to the actions of this body."
Meyer: "They were consumer protection ones, weren't they?"
Worthan: "No, they were not consumer protection." [...]
I went back to the post I wrote about Miller's 2017 multi-state legal actions. I assume the amicus brief opposing Ohio’s law to defund abortion providers was one of the "obvious" cases, because 2017 was the year the Iowa legislature axed Planned Parenthood's state funding for family planning services. I couldn't guess which other case got Worthan so riled up. Republicans would disagree with many stances Miller took that year.
Continuing the dialogue with Meyer, Worthan claimed his bill would not prevent Miller from joining consumer protection cases. "If those are good arguments to be made, the governor's going to sign on." He was only concerned about the cases with "political ramifications."
Worthan: "I mean, this is going to cut both ways, Representative Meyer. There will come a day when the shoe's on the other foot."
Meyer: "I agree 100 percent. And that's why we should not do this."
Worthan: "Well, and then, the question I would ask is, how are you holding the attorney general out as nearly a separate entity onto itself to take action on behalf of the state?"
Meyer: "That's a good question, Representative Worthan, and the answer is, he's duly elected. He's elected by the people of the state of Iowa to do these things, and not to be micromanaged by the legislature, the executive council, the governor's office."
When someone is acting politically, Meyer went on, an election is a "pretty good remedy." Alluding to the fact that Republicans didn't field a challenger against Miller last year, Meyer asked, "If you don't like what Attorney General Miller is doing, why don't you run somebody that can beat him, and run on this?" He kept pressing for an answer: which two cases from 2017 inspired this amendment?
Worthan again declined to cite the cases, saying he didn't want the debate to "devolve" into unrelated policy issues.
"You put policy language in a budget. Therefore you have opened yourself up to this debate at this time," Meyer countered. "There are no numbers in that paragraph that I saw. You wanted this debate, Representative Worthan. [...] I'm trying to figure out why we are doing this, what the problem is, and you can't give me an answer. And your answer is, it's political."
Meyer's last question: "Can you name any other state that has restricted its attorney general like we have tonight?"
"No, I cannot," Worthan replied.
"Ladies and gentlemen of the House, you heard it here first. This is strictly political. That's what this is," Meyer declared.
Worthan rose to speak next. He again refused to specify which "glaringly obvious" decisions by Miller inspired his bill. He complained that the attorney general issued only some policy letters related to federal agency decisions between 2012 and 2016. He alleged that in a letter to the legislature, Miller later referred to joining six actions against the administration in 2017 and 2018.
I guess I would contend that that list is incomplete. A popular blog on, I would consider the left side of the aisle, has a list of 35 actions that he has participated in, in 2017 and 2018, while still taking no action from 2012 to 2016.
Now, if you can't see the politics in that, I do. And this is a reaction to those politics.
Worthan misrepresented my work as well as Miller's. The Bleeding Heartland post from early January 2018 focused on multi-state legal actions Miller joined the previous year. Those weren't all separate lawsuits. Many were briefs or letters relating to the same case or Trump administration policy.
The letter from Miller to lawmakers (enclosed in full below) answered this question: "How many lawsuits did the Office file against the Trump Administration in calendar 2018?" Miller joined six lawsuits last year, related to the following issues:
Miller didn't send an "incomplete" list to lawmakers. The document mentioned not only the six lawsuits, but also "approximately 26 amicus briefs challenging actions of the Trump administration" (grouped in five categories) and "approximately 50 letters to federal agencies commenting on the actions of the Trump administration" (twelve categories).
State Representative Chris Hall, the ranking Democrat on the Appropriations Committee, spoke next. He reminded colleagues that Miller is the longest-serving attorney general in the country. If Republicans don't like how he's doing his job, they should put someone on the ballot and make the case for change.
In dialogue with Worthan, Hall noted that many of Miller's multi-state actions were aimed at protecting consumers from robocalls, a fraudulent data breach, faulty hip implants, or a bank creating new accounts without the customer's consent."
Worthan insisted, "We are not prohibiting him from doing any of those actions. [...] We have to seek permission for a lot of things in this world." Objecting to Hall's "gotcha questions," he said, "If it's a good idea, the governor's going to sign on in a heartbeat."
Hall called the effort "short-sighted."
I plead, plead with the majority party who is listening tonight. I know that some of you disagree with this policy. This is a free vote. It is a germane amendment. If you disagree with it, vote yes for the amendment and strike this language. Tomorrow will be another day. We will debate other policies, but you will have taken one meaningful and slight step to improve the upholdment of the constitution in this state or this country.
In his closing remarks opposing Anderson's amendment, Worthan claimed Hall had "misrepresented this entire process." He noted that the Iowa Constitution contains only one sentence about the attorney general ("The General Assembly shall provide, by law, for the election of an Attorney General by the people, whose term of office shall be four years, and until his successor is elected and qualifies.") Iowa Code Chapter 13 defines the duties of the attorney general. The founders did not put those duties into the constitution. Nothing in the constitution says the legislature can't change Iowa Code.
The other piece that we're looking at is a normal attorney-client relationship. Now, is the attorney allowed to initiate actions on behalf of the client without the client's permission? The attorney general's client is the people of the state of Iowa. But does that election give him carte blanche to do whatever he cares to do? We don't believe so.
Those duties of the attorney general's office were put in code for a reason. And what we're debating here tonight is probably one of the reasons. When we have an attorney general who may have overstepped somewhat on some actions. [...]
In the long run, this is going to have practically no effect on the attorney general. And as I said, you know, the shoe can end up on the other foot someday, and decisions might go the other way. But that is some of the messy part of democracy.
Hall rose again: Having authority to overreach "does not mean it is a good idea."
This is bad policy, and I don't say that very often. This is bad policy.
There are bright, capable public servants in the majority party, and I am asking you: this is a free vote. Please strike this language, and let the vote go forward and the budget pass as you need it to, in order to adjourn. Here's your opportunity to strike a bad idea that the floor manager is not able to defend. Just because you have the ability to do it does not mean you should.
Anderson said in her closing remarks for her amendment,
The attorney general works for the people of Iowa. He or she is the people's lawyer. The attorney general doesn't work for the governor, or for the legislature, or for the legislative [sic] council. In fact, the attorney general is not in the executive branch of the constitution. The attorney general is in the judicial branch of the constitution.
Don't rearrange our good government for no good reason. It will not help the people of Iowa, and it will not help the state of Iowa.
House members rejected the move to strike this language. Two Republicans (Brian Lohse and Joe Mitchell) joined the 46 Democrats present (including the newest member of the caucus, Andy McKean) to support the amendment. All 51 remaining Republicans voted no.
After watching the debate from the House public gallery, Miller told reporters he was "disappointed": “This is fundamentally a power of the attorney general. It’s not done like this in any other state.”
Strangely, when it was time for the House to vote on Worthan's amendment, Democrats did not demand a roll call vote. Instead, they allowed the House to adopt that amendment by voice vote.
In his final speech on the justice systems budget, Worthan again defended his attack on the attorney general's powers.
We can all talk about a slippery slope, but that slippery slope was greased by the attorney general when he took political positions on issues in courts in other states. We're just trying to stop that from happening again.
House members passed the bill by 54 votes to 45. The newest Democrat McKean joined his former GOP colleagues to vote yes. The rest of the Democrats opposed the bill.
Because of Worthan's amendment, Senate File 615 goes back to the upper chamber for approval before heading to the governor.
UPDATE: Speaking on behalf of the Attorney General's office on April 24, Lynn Hicks said the revised language in Senate File 615 is "still problematic" and would affect "consumer lawsuits, antitrust and Medicaid fraud actions filed outside of Iowa." Worthan's revised language targets amicus briefs and joint letters, such as a a letter Miller signed this week, in which state attorneys general called attention to "abuses by for-profit colleges" and the U.S. Department of Education's policy of dismantling federal regulation of such institutions.
P.S.- Republicans rejected several other Democratic amendments to the justice systems budget during the April 23 debate.
UPDATE: The Iowa Senate considered this bill on April 24, with a manager's amendment to conform to the House language. Democratic Senator Rob Hogg offered amendments to increase funding for victim assistance grants and for certain line items related to first responders. Republicans rejected those along party lines.
Hogg's last amendment would have struck the language limiting the attorney general's authority. Again, Republicans voted it down by 32 votes to 18. After senators concurred with the conforming amendment, the vote on final passage followed the same party lines: 32 Republicans in favor, 18 Democrats against.
Senate File 615 goes to the governor, who can item veto provisions, since it's an appropriations bill. I would be shocked if Reynolds rejects the new limits on the attorney general. However, she may be open to preserving the use of the public safety assessment in Iowa courts, since she item-vetoed similar language last year.
Appendix 1: AG's office answers to questions from legislators on the appropriations subcommittee
Appendix 2: Iowa House Democratic staff analysis of the justice systems budget: