Miller should address the question of governor’s power

The Des Moines Register

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The governor and legislative leaders generally dismiss concerns about what would happen if the General Assembly fails to approve a budget for the fiscal year that begins soon. But Iowans have every right to know whether state government comes to a screeching halt and what that would mean for vital state services.

They deserve to know if the governor can legally continue spending without legislative authority, for what and for how long.

The reluctance of Gov. Terry Branstad and legislative leaders to say whether the state would shut down appears to be strategic, because neither side wants to admit it has failed to accomplish the single most important job of the legislative session, which is to approve a spending plan for the next 12 months.

Instead, fingers are pointed between the governor's office, the two houses of the Legislature and both political parties for the absence of a state budget. Meanwhile, the governor assures Iowans he has a plan, though he won't say exactly what it is.

Attorney General Tom Miller has not been especially helpful, either. The state's chief lawyer had been mostly quiet on the question until recently, when he said the governor has “some authority” to keep state government running, but the legal question is still being researched.

It would seem some urgency is in order, given the possibility that even if lawmakers ink a deal soon, it would take Branstad some time to review the results and add his signature. And, that assumes Branstad would sign a budget without the commercial property tax relief and the two-year budget he has demanded.

The question arises because the Iowa Constitution divides authority between the legislative and executive branches of government and says that “no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”

The governor believes he has authority to keep state government running. But that is not obvious from the plain language of the constitution. The governor is empowered to run the executive branch, and “shall take care that the laws are faithfully executed.” But the Legislature is empowered to write the laws, and most important in this discussion, it has the exclusive power to appropriate money to be spent from the state treasury.

The governor, as chief executive, has authority to act in emergencies, and if a “constitutional crisis” were to occur it seems likely he would have the authority to provide for public safety, whether it is keeping state troopers on the road or guards in the prisons. Beyond that, it's hard to say what the courts might say about the governor freely spending state money in the absence of a budget to issue driver's licenses, say, or to keep state parks open during the Fourth of July weekend.

It would seem these questions would be taken seriously at a time when so many politicians loudly insist on strict adherence to the Constitution.

Lawmakers should approve a budget, or a temporary extension, before forcing a crisis. If they fail, the governor should have clear authority for what to do next, and that should come from the attorney general. The time for speculation has ended.