There’s something about the battle over local control during a pandemic that inspires references to old sci-fi movies. Last time, it was “Star Wars.” This week, it’s the dystopian “Judge Dredd,” starring Sylvester Stallone as a roving combination of cop, judge, jury and executioner. His catchphrase: “I AM the law!”
It seemed appropriate this past week, as Gov. Kim Reynolds simultaneously tried to deflect responsibility for her insistence that schools meet in person this fall and threatened consequences for districts that refused to comply with her order. Those schools, she said, are “… not defying me, they’re defying the law.”
But she, in fact, is the law in this case. That’s because the applicable legislation, Senate File 2310, was written so loosely as to put ultimate authority in the hands of the governor. For that, we can thank the Iowa Legislature.
As Reynolds has noted, this bill was approved unanimously and with little debate at the tail-end of the pandemic-interrupted legislative session in June. It states that in-person instruction “is the presumed method of instruction” under school districts’ “return to learn” plans. These plans for resuming classes this fall in light of the pandemic were required to be submitted to the state in July — right before the governor invalidated many of them with her own strictures for how these plans could be written.
Senate File 2310 allows districts to “primarily” hold classes remotely if the governor allows it through an emergency health order. That word, “primarily,” is the peg on which Reynolds is hanging her order that at least 50% of core classes must be held in person unless a district receives a waiver from the Department of Education.
That one little word, “primarily,” is open to broad interpretation. Reynolds could have argued that a much higher percentage of classes would have to be held in person to satisfy the notion of “primarily.”
Republican lawmakers have since backed the governor’s play, arguing that her actions are carrying out the Legislature’s intent.
“The plain text of Senate File 2310 clearly states students should return to primarily in-person instruction. It is common sense to define primarily as more than half,” Sen. Amy Sinclair, R-Allerton, chair of the Senate Education Committee said in a statement.
House Speaker Pat Grassley, R-New Hartford, agreed: “The legislation that we passed is clear and had one goal in mind: getting kids safely back into school.”
Democratic lawmakers have since tried to argue that the bill isn’t so clear.
Sen. Herman Quirmbach of Ames, ranking Democrat on the Senate Education Committee, issued a statement seeking to put responsibility back in the hands of the governor. He notes, correctly, that the phrase “presumed method of instruction” is “vague language that only sets a general priority for in-person education.”
He concludes: “Thus, Governor Reynolds — and not the Legislature — is solely responsible for the way she has chosen to implement the Legislature’s language.”
Sorry, senator. If the language in the bill is vague, the people responsible are the ones who wrote it and voted for it without raising any concern about unintended consequences of encoding flabby language.
Not to bash on Quirmbach, who as a member of the minority party had little say over what the GOP majority decided to do. He’s also partly correct — Reynolds has been given the ultimate authority here and she’s choosing to use it to force districts to offer classes in person regardless of whether they believe they can do so safety.
Even so, the situation highlights an ever-growing problem with our legislative process that is by no means exclusive to Iowa. Lawmakers pass vague, loosely written legislation in order to avoid bogging the process down over potentially controversial details and also to avoid taking responsibility for consequences of their actions. They push the actual legislative work to the executive branch and administrative rules.
And then they complain loudly about bureaucratic overreach (or abuse of executive authority, depending on party differences) and Republicans also bemoan the burgeoning administrative code and trumpet the need for deregulation. The best way to avoid bureaucratic overreach, however, is for lawmakers to do their jobs.
Many of President Trump’s executive orders, including this weekend’s controversial and potentially unconstitutional action on unemployment insurance and payroll taxes wouldn’t have been possible without the partisan paralysis in Congress that threatens to further damage the economy and prolong the nation’s recovery from the pandemic.
Sometimes, we welcome executive action. Not to digress too much but it needs to be said that Reynolds’ move last week to reinstate automatic voting rights restoration for most felons who have served their sentences was commendable. The action was done for the right reasons, borne out of Reynolds’ personal experience that people who have made mistakes and suffered the consequences deserve a second chance. It was done despite significant resistance within her own party, which shows courage of conviction. The action was fully within her own authority. And it wouldn’t have been necessary if the Legislature had done its job and given the people of Iowa an opportunity to act on a constitutional amendment in a timely fashion.
Reynolds isn’t on the ballot this fall, but most of the Iowa Legislature is. So is Iowa’s congressional delegation and one U.S. Senate seat. Voters who focus only on the successes or failures of the president or the governor need to recognize that it is up to the legislative branch to make the laws and hold the executive accountable for carrying them out.
The governor isn’t the law. We the people are — unless we allow our elected representatives to punt their responsibility.