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May 21st, 2010

Still Searching For Answers

By Nathan Tucker

Of the serious and important questions posed to Bob Vander Plaats, only a few were partially and unsatisfactorily answered. Though this discussion does not need to be belabored, we did learn a few things that should be commented on.

First, we learned in the response of Vander Plaats’ campaign is that he believes “a governor certainly can refuse to execute a law that he or she believes is immoral.” At the same time, however, they appear to recognize that such a moral obligation may not be a civil obligation because they proceed to state that “the constitution has provisions to remove a governor who does not perform his or her duties.”

This raises a fundamental question of why an individual would seek elected office if he knows that his conscience would prohibit him from carrying out some of the functions and responsibilities of that office. Unlike normal jobs in the private workforce, there are no accommodations which can be made for a governor who refuses to execute some laws because of his moral beliefs.

The people of Iowa deserve to know why they should hire a job applicant who, because he cannot perform his job, will soon be fired by means of impeachment. Justified civil disobedience among citizens may be noble, but in the hands of the “chief magistrate” it turns into dereliction of duty if not outright civil strife.

Perhaps, if Vander Plaats believes that he cannot execute some immoral laws because they should be removed from the books, or that others need to be enacted to conform with God’s law (though we still do not know which are which), he should run for the statehouse rather than the governorship.

The second thing we learned is that Vander Plaats appears to break ranks with one of his “constitutional scholars and historians.” His campaign writes: “Neither Tim Brien in his official capacities as Polk County Recorder and Polk County Registrar nor any other county recorder and registrar has any constitutional or legal authority to strike language from Iowa Code section 595.2…In other words, they do not have the authority to comply with the court’s unconstitutional amendment to the Constitution.”

But that, interestingly, is not what Herbert Titus said when he appeared as a guest last June on Jan Mickelson’s morning talk show on WHO Radio. Mr. Titus was clear that the parties to the action before the court were bound by a court’s decision. In this case, he specifically stated that the Polk County Recorder’s Office would be obligated to issue same-sex marriage licenses, but that the remaining 98 county recorders would, at least at present, have no such obligation.

Titus argued that the court’s opinion would have the force of law, but only on a case by case basis. Rather than wholesale judicial “lawmaking,” Mr. Titus believes it can only occur piecemeal. And while he recognized that the Varnum decision would have value as precedent, he urged the remaining county recorders to argue that their facts, circumstances, and legal arguments are better than Polk County’s in hopes of getting a different outcome.

If, as Vander Plaats’ campaign stated, they are “taking someone’s word on constitutional questions…I’m going to side with those three gentlemen over you any day of the week,” why aren’t they siding with one of those gentlemen? Contrary to Mr. Titus stated views, Vander Plaats continues to state that “the court’s opinion is, indeed, an opinion. It cannot and does not, in itself, create a new law.”

The third thing we learned is that Vander Plaats’ campaign does believe he has the authority to order county recorders to do or not do something. As has been noted, local elected officials are not considered part of the executive branch and, subsequently, no one, not even the “chief magistrate,” has any authority over them. The most the governor can do is refer them to the Attorney General’s office for charges.

But the final thing we learned is that we are still searching for answers to many valid questions that Vander Plaats refused to answer. This is not a “Hobson’s choice” for his campaign, nor are these serious and fundamental questions a waste of “time, energy, and resources” to answer. They go to the heart of his campaign and of his worldview of our secular constitutional republic, and the people of Iowa deserve adequate answers. For one who has repeatedly said that he welcomes the debate over his proposed executive order, he certainly has skirted from it.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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