Less than four months after persuading Attorney General Tom Miller to cede some of his power to her, Governor Kim Reynolds has already denied ten requests to sign Iowa on to multi-state legal actions related to federal or state policies on gun safety, immigration, environmental regulation, and reproductive or LGBTQ rights.
During the same time frame, Reynolds has approved five requests to join multi-state efforts on consumer protection, drug policy, or to help Iowa obtain a share of negotiated settlements.
The two officials struck what Miller called a "good-faith agreement" in May as a condition of Reynolds vetoing part of a bill that would have permanently constrained his authority and that of future attorneys general. Under the deal, Miller promised
he will not prosecute any action or proceeding or sign onto or author an amicus brief in the name of the State of Iowa in any court or tribunal other than an Iowa state court without the consent of the Governor. He retains the authority to participate in litigation or author letters in his own name, as Attorney General of Iowa.
No other state attorney general operates under similar constraints.
Miller acknowledged in May that the agreement meant "generally I will not be suing the Trump administration." Indeed, Reynolds has consistently refused to allow Iowa to join any lawsuit or amicus ("friend of the court") brief opposing a federal policy. To my knowledge, only one of those denials has previously been reported, after the governor prevented Miller from joining a challenge to an Environmental Protection Agency rule repealing the Clean Power Plan.
Under Iowa's open records law, Bleeding Heartland requested documents related to Miller's attempts to participate in multi-state cases. The Attorney General's office withheld draft filings and correspondence between its staff and Reynolds' legal counsel, citing "attorney-client communication and attorney work product exceptions, as well as common-interest agreements" among state attorneys general. But communications director Lynn Hicks compiled a summary of lawsuits and amicus briefs forwarded to the governor’s office, indicating Reynolds' response.
Staff for the governor did not reply to Bleeding Heartland's inquiries about the reasoning behind her decisions.
The cases where Miller would have joined multi-state efforts, if not for the governor's objection, fall into five categories.
Miller asked to join amicus briefs in two cases related to firearms. In Duncan v. Becerra, California's attorney general is defending a state law banning the acquisition and possession of high-capacity magazines.
Staff for the governor did not clarify whether Reynolds believes all restrictions on high-capacity magazines are unconstitutional or merely opposes state-level regulation of accessories that can allow a shooter to kill or wound many people in seconds.
In New York State Rifle & Pistol Association v. City of New York, the U.S. Supreme Court will decide whether the city’s "ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel."
Humane treatment and due process for immigrants, asylum seekers
Substandard conditions in facilities where immigrant children are warehoused became one of this summer's biggest national news stories. Numerous accounts showed children lacked regular access to showers, clean clothes, soap, toothbrushes, bedding, diapers, and/or sanitary products. Against that backdrop, Miller asked to sign on to an amicus brief in Flores v. Barr, a case filed in federal court in California to enforce the 1997 Flores settlement agreement "requiring immigration agencies to hold such minors in their custody in facilities that are safe and sanitary."
Miller sought to join amicus briefs supporting two other lawsuits challenging Trump administration acts related to immigration. The Grace v. Barr case is about a Justice Department policy stating that asylum claims based on gang violence or domestic violence will generally be denied. The policy overturned a standard used for decades.
In Make the Road New York, et al. v. McAleenan, the American Civil Liberties Union and others are asking courts to strike down "the Trump administration’s new rule [as of July 23] that massively expands fast-track deportations without a fair legal process such as a court hearing or access to an attorney." The practice of "expedited removal" has led to some wrongful deportations in the past.
Several news organizations reported in August that Reynolds blocked Miller from making Iowa a plaintiff in New York v. EPA, a lawsuit challenging the EPA's new rule replacing the Clean Power Plan. Before Republican lawmakers and Reynolds acted to curtail his authority, Miller had worked with colleagues around the country to oppose Trump rollbacks of the Clean Power Plan and other EPA policies.
The governor's communications director did not explain the decision beyond a statement saying Reynolds "does not believe it's in the best interest of Iowans for the state to join in this lawsuit." Staff did not answer my follow-up question: Isn't it in Iowans' best interest to have federal policy promoting renewable energy (which we have in abundance) rather than power plants using fossil fuels (which need to be imported)? As lieutenant governor, Reynolds led a project to draft an Iowa Energy Plan that highlighted the state's renewable energy resources.
Reynolds also refused to allow Miller to sign an amicus brief supporting plaintiffs in Union of Concerned Scientists v. Wheeler. That case relates to an EPA regulation barring people who receive EPA grants from serving on the agency's science advisory committees. The impact will be to exclude many academic scientists with expertise, while allowing corporate-funded scientists to serve. Miller had joined a separate amicus brief last year, before Republican lawmakers moved to restrict his authority.
Reynolds signed a near-total abortion ban in 2018. Although she opted not to appeal after a Polk County District Court struck Iowa's law down early this year, she refused to let Miller join an amicus brief supporting plaintiffs in Whole Woman's Health Alliance v. Hill, who are challenging a restrictive abortion law in Indiana.
Similarly, the governor declined to allow Iowa to join an amicus brief in EMW Women's Surgical Center v. Meier, a case about a Kentucky ban on "a common second-trimester procedure to end pregnancies."
The U.S. Supreme Court will soon hear arguments in "three cases asking whether Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity." Miller wanted Iowa to sign an amicus brief arguing that employment discrimination on such grounds is illegal under Title VII.
Discrimination on the basis of sexual orientation or gender identity has been illegal in Iowa since 2007, but many states don't have such protections in their civil rights codes. Reynolds was a county official when the legislature adopted those amendments to the Iowa Civil Rights Act. Her communications staff did not respond to Bleeding Heartland's inquiry on whether Reynolds believes employers should be able to fire an employee or not hire an applicant after learning the person is gay, lesbian, bisexual, or transgender.
The document provided by the Iowa Attorney General's office notes five cases in which Reynolds consented to join multi-state actions. Three of them involve amicus briefs:
In North Dakota v. Purdue Pharma, the state will support North Dakota’s appeal of summary judgment in an opioid-related lawsuit.
The Pennsylvania v. Navient case relates to states' "interest and enforcement rights in protecting student loan borrowers from unfair and deceptive practices by student loan servicers."
Mueller v. City of Joliet pertains to "Uniformed Services Employment and Reemployment Rights Act for National Guard duty."
The last two cases involve multi-state settlements. Hicks said Iowa received approximately $10,000 in the Endo case, regarding "alleged anticompetitive conduct (pay-for-delay agreements) for the purpose and effect of obstructing generic competition for the branded drug Lidoderm." Terms haven't been fully negotiated in the Lehigh Cement settlement over alleged air pollution violations.
Final note: Miller's agreement with Reynolds allows him to join multi-state letters and investigations without seeking the governor's permission. On September 23, Miller and 20 other state attorneys general signed a letter to Congressional leaders advocating passage of a bill requiring background checks for ammunition purchases.
The Attorney General's office declined to specify how many investigations Miller has joined since May. Some of those are confidential for various reasons, Hicks told me. But Miller recently announced Iowa's participation in a bipartisan probe of Facebook's compliance with antitrust laws. In addition, Iowa is among eight states leading a 50-state investigation of "whether Google has achieved and maintained its dominance through business practices designed to thwart competition."
Appendix: Document prepared by the Iowa Attorney General's office summarizing requests to join lawsuits or amicus briefs from May 2019 through September 23, 2019. Items listed under "Forwarded, but consent not requested" refer to cases Miller wasn't interested in joining but passed along to keep the governor's office informed about cases where other states invited Iowa's participation.