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May 18th, 2010

Vander Plaats Campaign Responds to Tucker’s Eight Questions

By ERIC WOOLSON

In his essay, “Eight Questions for Bob Vander Plaats”, Nathan Tucker combines the best traits of a lawyer and a journalist to give us the worst of both worlds.

Taking from the most-famous line reporters ever utter – “Just one question…” before they ask 10 – Mr. Tucker does not pose eight questions. Instead, he tosses out a dizzying 53 questions in his supposed quest for the truth.

Meanwhile, true to his profession, he asks every type of question he learned in law school from broad questions designed to distract and confuse the “jury” from the real issue to the tried-and-true approach of setting up straw-man questions so he can knock them down with his dazzling knowledge of the law.

I’m not going to attempt to answer all 53 questions Mr. Tucker has put out for us because I firmly believe that he, like most readers on this website have already made up their minds. Readers that support Rod Roberts or Terry Branstad are not going to be swayed by anything I write here – just as readers who support Bob Vander Plaats are not going to change their minds based on Mr. Tucker’s essay.

The fact that he is a lawyer, as is Mr. Tucker, doesn’t make him an expert on constitutional law any more than a person who has a civil engineering degree is an expert on electrical metallurgical or aerospace engineering.

So, Mr. Tucker knows how to ask a bunch of questions. So what? There are questions intended to seek the truth and questions designed to create doubt; Mr. Tucker’s questions clearly fall into the latter category.

He has, however, accomplished his goal of creating a Hobson’s choice for the Vander Plaats campaign. To ignore him allows him and those who support the other candidates to exclaim, “Aha! We knew all along that Vander Plaats didn’t have the answers.” To answer them wastes time, energy and resources in attempt to win over those who will never be won – and gives them fodder for more attacks.

Thanks, Nathan. I trust one day I’ll be able to return the favor. That said, here are the answers to your eight questions. I don’t have time to answer the other 45 today.

First, Mr. Tucker asks why we need an executive stay if, as Bob Vander Plaats contends, the court does not make law.

The answer is simple and direct – and Mr. Tucker knows it. The court does not make law, but county recorders are acting as though the courts do. Attorney General Tom Miller’s office essentially threatened county recorders with legal action if they did not adhere to the court opinion, so they did. The stay would direct county recorders to discontinue the issuance of marriage licenses to same-sex couples until the Legislature passes a new law or Iowans vote on a constitutional amendment. I’m sure at this point Mr. Tucker will ask a ninth question because that’s what lawyers do after they ask their eighth question – no, make that a 54th question because that’s what they do after they ask their 53rd question. His ninth question, make that 54th question, will be, What authority does the governor have to direct county recorders to stop issuing marriage licenses to same sex couples?

Next, he asks, why does the Legislature need to act?

Again, Mr. Tucker knows the answer because a smart lawyer like him is trained to never ask a question in front of the jury unless he already knows the answer. The answer is that the court has ruled the law is unconstitutional. That’s perfectly within the court’s authority. When a law is ruled unconstitutional, it goes back to the Legislature to be rewritten. That’s why the Legislature needs to act. Often, the high court will give guidance on how a law deemed to be unconstitutional can be amended, as was the case a few years ago with legislation to ban flag burning. The court chose not to do so when it struck down the Defense of Marriage Act.

In supporting his third question – What is the extent of the executive power to “stay” something? – Mr. Tucker notes that “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?”

“Not traditionally”? Really? Doesn’t that sound a bit sloppy for such a keen legal mind? Either county recorders are or they are not members of the executive branch, aren’t they?

More to the point, the governor has the authority to enforce the law; county recorders do not have the authority to rewrite it. 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 nor to apply said Code section in any manner except as it is enacted into law by the General Assembly and signed by the Governor. In other words, they do not have the authority to comply with the court’s unconstitutional amendment to the constitution.

With his fourth question – Are all court decisions merely advisory? – Mr. Tucker is employing another favorite legal tactic of broadening the question to distract us from the specific issue at hand. The specific issue is the April 3, 2009 decision in which the Iowa Supreme Court unconstitutionally exercised legislative power because its opinion purports to order that “the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute.” As Article III, Section 16 of the Iowa Constitution states, “Every bill which shall have passed the general assembly, shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it; but if not, he shall return it with his objections, to the house in which it originated, which shall enter the same upon their journal, and proceed to reconsider it; if, after such reconsideration, it again pass both houses, by yeas and nays, by a majority of two thirds of the members of each house, it shall become a law.”

That’s quite straightforward. The court’s decision in this case does not mean it can rewrite the law. So, in this instance, the court’s opinion is, indeed, an opinion. It cannot and does not, in itself, create a new law.

Mr. Tucker’s fifth question – What other court decisions would not be enforced? – is followed by six other questions in rapid-fire succession. Each of those questions is based on the premise that a governor exercising his constitutional duty challenging an overreaching court decision is wrong. Unfortunately, for Mr. Tucker, constitutional scholars and historians David Barton, Herb Titus and Michael Farris don’t accept his premise.

If I’m taking someone’s word on constitutional questions, no offense, Mr. Tucker, but I’m going to side with those three gentlemen over you any day of the week. The answer to the question is that any court decision that attempts to create new law would be opposed. Meanwhile, the all-or-nothing argument Mr. Tucker tossed out – yet another classic tactic by lawyers – suggests a governor has no option but to follow the courts blindly or oppose every court decision ever handed down. It doesn’t work that way. Clearly, Bob Vander Plaats would work through the legislative process to shape laws, just as ever governor before him has done.

Who else can ignore court decisions? Mr. Tucker asks. Here, the master of the broad question suggests a legal challenge to the court opinion equates to ignoring the courts altogether and opens our society for anarchy. A gubernatorial challenge of the court order is part of an orderly legal process.

Seventh, Mr. Tucker asks, What should be done to those who obey the court’s opinion? What followed was a litany of comments from WHO Radio talk show host Steve Deace and Bryan English of the Iowa Family PAC. It’s the classic bait-and-switch routine. The last time I checked, Steve Deace’s opinion was just that – Steve Deace’s opinion. The same goes for Bryan English’s opinion. Is Mr. Tucker suggesting Governor Branstad must explain – and is accountable for – anything that any of his supporters says or does? Sorry, it doesn’t work that way.

In his eighth headliner question, Mr. Tucker asks, Can a governor refuse to execute an immoral law? Once more, he knows the answer to his own question.

Thus when he asks, “Does (Vander Plaats) believe that immoral laws are void from conception, and thus he could act as if they were never on the books?”, Mr. Tucker is employing yet another favorite tactic of lawyers and journalists – the red herring question.

A governor certainly can refuse to execute a law that he or she believes is immoral. And, the constitution has provisions to remove a governor who does not perform his or her duties. Among those duties is the responsibility to preserve the separation of powers.

Chet Culver, Rod Roberts and Terry Branstad have all made it clear they would not defend the executive branch or the people of Iowa against an overreaching court. It is clear that if the court chooses to create law – and a governor stands idly by – then our property rights, freedom of speech, freedom of assembly, Second Amendment rights and other liberties are at risk.

In conclusion, Bob Vander Plaats would enforce the laws on the books – and work to change those that do not reflect the best values and principles of our state.

Nothing more, nothing less. And all the clever Perry Mason questions in the world won’t change that fact.

Eric Woolson manages the Bob Vander Plaats campaign.

Photo by Dave Davidson

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