Miller might be wrong, but he's no political pawn

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So let me get this straight.

In December, Iowa Attorney General Tom Miller made a snap judgment on the question of whether Lt. Gov. Kim Reynolds will become a capital G-governor, complete with the power to appoint a new lieutenant governor, upon the departure of Gov. Terry Branstad for China. It was a swift call steeped more conventional political wisdom than constitutional law.

Then, this week, Miller releases a formal, thoroughly staff-researched attorney general’s opinion concluding that although Reynolds, a Republican, will become governor, no asterisk, she can’t appoint a lieutenant. The Constitution won’t permit it. Sure, it would have been much easier for Miller’s office to stick with his previous call, but the pesky state Constitution and a deep dive into its history led Miller toward a reversal.

Now, Republicans are super ticked.

They’re flatly rejecting the dive and want Miller’s swift December snap to prevail instead. And with straight faces, these GOP politicians, making political calculations, are charging Miller with being political.

They’re demanding the AG stop playing politics and give them what they want, which also happens to benefit them politically.

Also, give me a break.

Miller is a Democrat, it’s true. But the notion our attorney-general-for-life would shelve his integrity as an arbiter of law simply to throw a wrench into Reynolds’ quest to appoint a lieutenant seems far-fetched. That’s especially true when you consider his December green flag. His reversal now seems more fact-motivated than politically motivated.

Miller didn’t reopen the issue. The formal opinion crafted by his staff came at the request of state Sen. David Johnson, a lifelong Republican who broke with the Trumpian GOP and became an independent.

Maybe you think Miller gets it wrong. That’s OK. It’s a tricky constitutional issue. His formal conclusion that Reynolds actually will be holding both the offices of governor and lieutenant governor when gubernatorial powers “devolve” to her creates its own issues and questions.

But there’s a big difference between questioning his office’s legal reasoning and declaring him a political pawn and party hack with cloudy judgment. One respects the attorney general’s effort to answer a tough question and get it right constitutionally. The other is knee-jerk partisan politics respecting no office or institution that makes a call you don’t like. This is what now passes as “conservative.”

My own read a few weeks ago on the thoughts of Iowa’s constitutional framers in 1857 suggests the attorney general got it right, or got real close.

Delegates to the constitutional convention argued mightily over the need for a lieutenant governor, but once they settled on its creation, it’s clear they believed whoever occupied that office would become a full-fledged governor if the top job became vacant.

But clearly they also believed officials in line to become governor should be elected officials, not appointed ones. So allowing Reynolds to appoint a lieutenant who could become governor would seem to sidestep the framers’ intent.

Considering the broad powers invested in the governor’s office, it’s no small issue.

“We elect the governor by the direct votes of the people — by popular will — by the popular voice. In case of his removal or disability, I see no reason why the person filling his place should not be elected directly by the whole people as much as the governor himself,” said John T. Clark, a Waukon lawyer and convention delegate.

The framers, the attorney general’s opinion notes, provided no mechanism for filling a vacancy left by a lieutenant governor moving to the top job. And that’s because, the opinion argues, they saw no vacancy as both offices would be occupied by the same person. After all, in some cases, the transition could be temporary, such as when a governor is incapacitated but recovers.

Miller’s opinion is a lightning bolt, and carries a lot of weight, but it’s not the final word. Other arguments might prove more compelling if this dispute ends up in court. For example, there’s a case to be made if Reynolds is taking on the full powers and authority of the governor’s office, doesn’t that include appointing a lieutenant?

These are the sort of questions that scream for a judicial answer. I hope we get one, sooner than later. In the meantime, if Reynolds ignores Miller’s advice and appoints a lieutenant, she’ll be sending a clear signal about her own strong preference for politics over constitutional caution. What a way to start a new administration.

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