Judicial activism was brought home to Iowans last April when the Iowa Supreme Court struck down the state’s Defense of Marriage Act (DOMA), leading to a debate, lively at times, over what the conservative response should be. At its core, this discussion is over what the law is, who decides it, and, more recently, what should happen if the law is immoral.
One of the Republican candidates for governor, Bob Vander Plaats, and those who support him (in particular, the Iowa Family Policy Center (IFPC), WHO Radio’s Steve Deace, and Bill Salier, the co-founder of Everyday America) have argued that the court’s ruling does not have to be enforced.
Their position is based on the postulation, which they have taken great pains to repeat over and over again, that the courts cannot make law but only issue advisory opinions. Vander Plaats, appearing on Deace’s radio show May 12th, stated that, “the legislature makes the law, the executive branch executes the law, the people get to amend the Constitution, and the court gets to offer opinion.”
Sailer, appearing at a rally with Vander Plaats shortly after the Court issued its decision, said that lawmakers needed to thank the justices for their opinion, but tell them that it’s merely their opinion and that DOMA is still on the books.
He continued: “[Lawmakers] can face down the court and say, ‘We passed DOMA, the Defense of Marriage Act. You claim that it is stricken. And yet unless some magic eraser came down from the sky, it’s still in code.'” Because DOMA is still on the books, they argue that the governor, as the state’s “chief magistrate,” should continue to enforce it.
Assuming, arguendo, that they are correct, this theory raises several important questions which neither Vander Plaats nor his supporters have ever provided specific answers. These questions are not a personal attack on Vander Plaats or his supporters, but are an honest attempt to understand what it is they do, or do not, believe.
Any theory of law and governance does not revolve around just one case and one governor, but has to account for its application in other cases as well. This isn’t just a debate over judicially ordered gay marriage, but has ramifications for our entire understanding of government.
Vander Plaats himself has indicated that he understands this when he stated at a house party last fall that, “[t]he reason why you need a governor to issue the executive order goes way beyond marriage. If you continue to allow a Supreme Court to drive a car without a license, every one of your freedoms is up for grabs. Private property. Free enterprise. Freedom of speech. Freedom of religion. Freedom of assembly.”
If Vander Plaats wants us to vote for him and support his theory, than he needs to explain how he will implement it across the board.
Question #1: Why Do We Need an Executive “Stay?” Vander Plaats has promised that, immediately upon taking the oath of office, he will issue an executive order that will, temporarily at least, “stay” the court’s opinion. But why, if the court can only issue opinions and not make law, does the opinion have to be stayed? Opinions don’t need to be stayed; only laws do.
Bryan English, spokesman for the IFPC, appeared to agree that an executive “stay” is unnecessary when he was a guest on Deace’s afternoon radio show on May 5th. In making his point that the courts have no power to enforce their own decisions, he referred to a question he had earlier posed to Terry Branstad: “Who was going to get down off their bench over there at the Supreme Court and come force a governor to treat their opinion as if it were law?”
Why should Vander Plaats, or any other governor, issue an executive “stay” and thereby recognize the validity of the court’s decision, acknowledge that it has the force of law, but then assume the power to stay the force of that law? An executive “stay” implies that the Court’s ruling is enforceable, but that it will be “paused” momentarily before it resumes the force of law.
Vander Plaats seemed to acknowledge this when, in a recent meeting with the Sioux City Journal’s editorial board, he referred to this executive “stay” as the “proverbial timeout.” As a candidate for governor, Vander Plaats owes Iowans an explanation as to why an executive “stay” is necessary under his theory.
Question #2: Why Does the Legislature Need to Act? Vander Plaats and his supporters argue that such a “stay” would be temporary until the people of Iowa and/or their legislature responded to the court’s opinion. But, again, why would the legislature need to act at all if DOMA is still good law, regardless of what the court thinks? Why, in the words of both Vander Plaats and Bryan English, did the court’s advisory opinion put the “onus” back on the legislature?
Does the legislature have to reenact DOMA for it to remain good law even though, as the theory goes, it is supposedly still good law? Do they need to pass a constitutional DOMA amendment even though, again, DOMA itself remains good law? As a candidate for governor, Vander Plaats owes Iowans an explanation as to why the legislature would need to reenact supposedly good law, and whether a constitutional DOMA amendment is really necessary.
Question #3: What is the Extent of the Executive Power to “Stay” something? Vander Plaats and his supporters have argued that this “stay” will stop gay marriage licenses from being issue in this state until the legislature acts. But marriage licenses are issued by local county recorders who, traditionally, are not members of the Executive Branch. Does Vander Plaats believe he has the authority to order local officials to refuse to issue gay marriage licenses?
Vander Plaats has also failed to explain how long this unnecessary executive “stay” would last while the legislature reenacts legislation that is already good law. Will it be in effect for only the 2011-2012 General Assembly and then lapse if a constitutional DOMA amendment does not pass out of the legislature? Or could it possibly remain in force for a longer period of time? Could it remain in effect indefinitely?
What historical practice would Vander Plaats rely upon in determining the length of his “stay?” And could legislative silence ever, in and of itself, constitute a legislative response to the court’s opinion? Isn’t doing nothing as good a response as doing something?
Can the governor also issue a “stay” against laws enacted by the legislature? On Deace’s radio show on May 12th, Vander Plaats seemed to indicate that the “stay” would remain in effect until the legislature and/or the people made sure God’s law that marriage is between one man and one woman was the law in Iowa.
Does this mean that, even if the people and/or their legislators decided to pass legislation or a constitutional amendment allowing for gay marriage, Vander Plaats would issue an executive “stay” against that as well because it violates God’s law? As a candidate for governor, Vander Plaats owes Iowans an explanation as to how long his executive “stay” would last, and if he would “stay” legislation/constitutional amendments.
Question #4: Are All Court Decisions Merely Advisory? As already noted, Vander Plaats and his supporters have argued that courts cannot make law but only issue opinions. However, on Deace’s June 25, 2009 show, both he and Vander Plaats seemed to agree that the Court could issue a binding opinion, based on the Constitution, that former Governor Vislack could not issue an executive order reinstating the voting rights of felons. Why can the Court issue a legally binding decision in one case and not the other?
This leads to the larger question of which court decisions are merely advisory and which ones are binding? Are only court decisions which rule something unconstitutional advisory, or are all court decisions advisory? Bryan English, appearing on Deace’s May 5th radio show, seemed to indicate that the theory would encompass all court decisions when he argued that the state should have refused to obey a 1993 Iowa Supreme Court decision, based on Iowa law rather than the Constitution, that told the State to increase public employees’ pay.
Steve Deace and his guest David Barton of Wallbuilders echoed these sentiments on Deace’s show on May 7th. But if all court decisions are merely advisory without the force of law, then criminal convictions, divorce proceedings, contracts, and wills/trusts would be unenforceable.
If, on the other hand, court decisions are merely advisory only when they determine something is unconstitutional, is it limited to legislative acts or does it include executive orders, local ordinances, administrative regulations, and police practices/policies? If Vander Plaats does make a distinction between which court decisions are or are not advisory opinions, what historical practice does he rely upon?
If court decisions are advisory, why would Vander Plaats support a legal challenge to ObamaCare? Isn’t such a lawsuit a waste of time and money if President Obama is free to tell the courts “thanks but no thanks” for their opinion? What justification would he provide from challenging federal health care or any other law he deems is unconstitutional?
Also, if court decisions are merely advisory, why should we bother to criticize them? If they are just musings by a bunch of old, robed individuals, why should we care? Why not let them think what they want and we’ll do what we want? Why should we care about judicial nominees? As a candidate for governor, Vander Plaats owes Iowans an explanation as to whether all, or only some, court rulings are merely advisory and the reasons why.
Question #5: What Other Court Decisions Would Not Be Enforced? Vander Plaats cites the governor’s role as “chief magistrate” for his authority to enforce the laws on the books, regardless of whether the courts rule them unconstitutional. If this is true, than certainly the “chief magistrate” of a state has the authority to ignore mere advisory opinions issued by either federal or state courts because, in both cases, the state laws remain on the books as good law.
Would, for instance, Vander Plaats reintroduce Prison Fellowship Ministry’s rehabilitation program back into Iowa prisons even though the 8th Circuit held it to be unconstitutional? Would he allow prayer back in public school classrooms? Would he plant a set of marble Ten Commandments in front of the governor’s mansion at Terrance Hill?
Would he rule that illegal immigrants born in this country do not have birthright citizenship, a position which he hinted at when he was interviewed by Deace on June 25, 2009? Would he deny illegal immigrants a free public education? Would he prohibit access to pornography? As a candidate for governor, Vander Plaats owes Iowans an explanation as to which court decisions he would “stay” and those he would enforce and the reasons for each.
Question #6: Who Else Can Ignore Court Decisions? Last spring, Vander Plaats and his supporters had urged county recorders to refuse to issue marriage licenses to same-sex couples. Does this mean that Vander Plaats believes that other officials, and not just the “chief magistrate” of the state, have the ability, if not the duty, to ignore mere court opinions?
If so, which officials can and cannot do so? Does it only apply to elected officials (county sheriff, county attorneys, etc.), or does it apply to non-elected officials such as city managers and police chiefs? Does it apply to mere state/local rank-and-file employees, or only department/agency heads?
Does it apply to individuals as well, and does it matter if they are citizens, lawful alien residents, or illegal immigrants? As a candidate for governor, Vander Plaats owes Iowans an explanation as to who can or cannot refuse to obey a court opinion.
Question #7: What Should Be Done to Those Who Obey the Court’s Opinion? As previously mentioned, Vander Plaats and his supporters maintain that a court cannot make law and, therefore, laws remain in effect until the legislature changes them. This naturally begs the question of what, if anything, should be done to those individuals, whether the “chief magistrate” or another official, who executes the court’s decision in violation of the existing law which, again, is still good law?
Should they be impeached and removed from office? Should criminal proceedings be instituted against them? On Steve Deace’s May 5th radio show, both he and Bryan English indicated that a governor could be impeached for following a court order rather than the law on the books.
On June 4th of last year, Deace and his guests referred to those “chief magistrates” who obeyed court decisions as acting “illegally, unilaterally, and unconstitutionally,” and they called for all officials who refused to follow the duly enacted law to be, at a minimum, removed from office. As a candidate for governor, Vander Plaats owes Iowans an explanation as to what, according to his theory, should be done to those who, in essence, commit treason.
Question #8: Can a Governor Refuse to Execute an Immoral Law? Vander Plaats and his supporters have called out Rod Roberts for saying that, if the voters rejected a constitutional DOMA amendment, he would consider himself morally bound to enforce same-sex marriage in the state.
Steve Deace appeared to say that a Christian’s allegiance to God’s law overrides his obligations as an elected official when, on his May 5th show, he exalted the example of Christians who refused to say “Caesar is Lord.” On Deace’s May 12th radio show, Vander Plaats stated that “the law comes from God…the Lawgiver. All laws originate from the Lawgiver.”
He went on to argue that, “[i]f a law contradicts the law of God, than it is incongruent…If we understand what is the basis and origin of all law, and if it doesn’t match up, if it doesn’t square, if it doesn’t meet the plum line of the law of God, than I believe with Martin Luther King that [it] is not a law. All of a sudden it’s a made-up law. And we as a people then need to take a stand. And we need to take a stand for God’s law.”
Would he agree to enforce same-sex marriage in Iowa if the people rejected a constitutional amendment, or would he be unable to do so because it would be immoral? Does he believe that immoral laws are void from conception, and thus he could act as if they were never on the books? Would God’s moral law compel him to enact by executive fiat certain laws?
Would he, for instance, issue an executive order prohibiting gambling in the state? Would he shut down abortion clinics? Would he order businesses closed on the Sabbath? Would he enforce prohibition? What other laws would he not enforce because he thinks they are immoral? As a candidate for governor, Vander Plaats owes Iowans an explanation as to how his moral code affects what laws he will enforce, and which ones he feels compelled to order without legislative authority.
In conclusion, this debate isn’t just about one single court case and what should be done about it, but it involves fundamental principles about how our secular, constitutional republic is supposed to function. The onus is on Vander Plaats to be able to adequately explain his theory and its implications, and until he does, he gives the people of Iowa no reason to be confident that he understands that our government is one of laws and not of men or ayatollahs.
Photo By Dave Davidson
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