Executive orders show Iowa governor’s broad power

DES MOINES - As Iowa's supreme executive, governors giveth and governors taketh away.

Article IV, Section 1 of the Iowa Constitution states “the supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the governor of the state of Iowa.”

Legal experts say that language gives the governor broad power in executing state laws and administering state functions and, although not specifically defined, the use of executive orders - such as one that has put in doubt funding for Cedar Rapids' Convention Complex - has become the way the governor's inherit power has been manifested in tangible terms.

“In the absence of some restrictions, it sort of assumes that the governor has inherent authority to be the executive,” said Mark Kende, a Drake University law professor and director of the school's Constitutional Law Center.

University of Iowa law professor Arthur Bonfield said the governor's supreme authority means he is free to use his executive power unless it is inconsistent with a statute or the state or federal constitutions.

“If there's a hole, the governor can fill it. But if it's inconsistent with a statute, then that's a different story,” Bonfield said.

The two constitutional law experts said the boundaries or limitations of any governor's supreme authority often are defined by case law established by court challenges or by a subsequent governor rescinding or changing what a previous governor had ordered.

Gov. Terry Branstad did that when he assumed office in January and rescinded executive orders that established project labor agreements for state projects and restored the rights to vote and hold public office for convicted felons.

“You do sometimes see this kind of - anything you can do I can do better - when executive power changes hands,” Kende said. “Obviously, you don't want that happening too often because it sort of makes the government look bad or inconsistent or unstable, but it does happen.”

A review of 219 executive orders issued by Iowa governors over the past 50 years indicates a broad array of uses - from imposing across-the-board cuts to avoid budget deficits to creating advisory, planning or study groups to addressing state emergencies and to dictating slower traveling speeds use of unleaded and ethanol-blended fuels by state vehicles. (see list)

Former Gov. Tom Vilsack used executive orders in the post-9/ll attacks period to dispatch Iowa National Guard soldiers to provide enhanced security at Iowa airports and to guard against anthrax concerns at Iowa laboratories.

Branstad, during one of his previous four terms from 1983 to 1999, issued an executive order - one of his 72 to date - on Oct. 1, 1985, declaring a state of economic emergency that included a moratorium on farm foreclosures to give mortgagers more time to stabilize their indebtedness due to one of the worst agricultural credit crises to grip Iowa.

One of the more unique and targeted uses of an executive order came in April 1972 when former Gov. Robert Ray became upset that the U.S. Air Force had not made financial settlements with Iowans affected by separate military jet crashes in Iowa.

Invoking his power as commander-in-chief of the Iowa National Guard, Ray ordered that “no federal vehicles or aircraft issued to the Iowa Army and Air National Guard shall move or be used in any manner until I am satisfied that the claims involved in these matters will be settled or in case of emergency or otherwise specifically authorized by me.” Four days later, he issued an order rescinding the previous order.

Kende said that appeared to be an example of “pushing the envelope” on executive authority.

He said the most famous case nationally came during the Korean War when then-President Harry Truman issued an executive order seizing the steel mills in the face of a threatened strike that he said would jeopardize national security.

The federal court ruled Truman had exceeded his authority in declaring the national government in control of the steel industry.

The most-noteworthy case of an Iowa court limiting the governor's executive order powers occurred when former Gov. Tom Vilsack issued a 1999 directive that enumerated protections for homosexuals in state employment.

Vilsack included new classifications for “gender identity” and “sexual orientation” within anti-discriminatory practices governing state agencies' employment policies - expansions beyond the existing civil rights protections covered in state law that drew a legal challenge from a group of state legislators and citizens. A district court judge agreed with the group that sought to nullify the action by issuing a ruling that overturned the order.

A similar legal battle may be brewing over Branstad's executive order 69 in January that rescinded former Gov. Chet Culver's executive order 22 - each governor uses a separate numbering system - mandating the use of project labor agreements for state projects.

Branstad's replacement order prohibits PLAs to be used for projects involving state funds - a development that put a $15 million state I-JOBS grant in limbo due to a project labor agreement involving Cedar Rapids' $75.6 million Convention Complex project.

Bonfield declined to address that situation specifically, but he noted there are “vested rights” provisions that can come into play under some circumstances in the execution of gubernatorial orders.

Iowa governors'executive orders

Examples of executive orders issued by Iowa governors

Gov. Norman Erbe (R, 1961-1963)

Required state automobiles in Des Moines to undergo safety inspections

Gov. Harold Hughes (D, 1963-1969)

Barred discrimination by state agencies due to race, color, religion, national origin and ancestry

Implemented regional planning/concepts for state government

Gov. Robert Ray (R, 1969-1983)

Required state vehicles to use low-lead or unleaded gasoline

Directed health commission to evaluate proposed storage/disposal of nuclear waste in Iowa

Directed most state vehicles not to exceed 50 mph (later raised to 55 mph) during U.S. energy crisis and state building thermostats no higher than 68 degrees

Established Terrace Hill Authority after Hubbell family donated mansion that became governor's residence

Gov. Terry Branstad (R, 1983-1999, 2011-)

Declared state economic emergency on Oct. 1, 1985, that included moratorium on foreclosures due to farm credit crisis

Banned sale of tobacco products in state buildings/banned use of tobacco products in state buildings

Rescinded Gov. Chet Culver's executive order 22 mandating the use of project labor agreements, barred PLAs for projects involving state funds

Rescinded Gov. Tom Vilsack's executive order 42 that created an automatic process giving rights to vote and hold public office to felons and those who committed aggravated misdemeanors

Gov. Tom Vilsack (D, 1999-2007)

Included new classifications for “gender identity” and “sexual orientation” within anti-discriminatory practices governing state agencies' employment policies

Implemented post 9/11 attack presidential request for National Guard to provide enhanced security at airport checkpoints

Required National Guard securing presence at Iowa laboratories following Anthrax incidents outside of Iowa

Gov. Chet Culver (D, 2007-2011)

Increased flex-fuel, E85 purchases for state vehicles

Implemented 10 percent across-the-board state spending cut in wake of worldwide recession

Reduced state costs through efficiency/reorganization measures

Created Dependent Adult Task Force in wake of Atalissa bunkhouse situation

Source: Gazette research