State-based bids to thwart presidential orders reach Iowa

Constitutionality of state efforts to reject presidential orders get a fact-check in Iowa.

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Rep. Bobby Kaufmann speaks during the opening of the 2021 legislative session on Monday, Jan. 11, 2021 at the Iowa State Capitol in Des Moines. Legislative goals for the session include further tax cuts, expanding in-person learning, and moving towards economic recovery from the COVID-19 pandemic.

Dylan Morgan and Lyle Muller


If your time is short:

  • HF 815, pending in the Iowa Legislature, says Iowa would not have to follow a presidential executive order if it were deemed unconstitutional by the attorney general. 
  • A read of the U.S. Constitution does not mention presidential executive orders but they have become directives with the power of law for how the executive branch of the federal government will carry out policies.
  • State Rep. Christina Bohannan, D-Iowa City, and two other Democrats claim a Republican legislator said the bill would be unconstitutional. He has declined to respond.

A political spat emerged this Iowa legislative session when Democrats in the House objected to a Republican bill aimed at presidential executive orders. The dispute has things you’d expect in politics: policy disagreements, making points about a bigger picture and verbal jabs against the other side. There’s a lot to unpack.

The bill started as HF 481, introduced by Rep. John Wills, R-Spirit Lake, and was recommended by the State Government Committee for passage in early March before being renumbered to HF 815

It would allow Iowa to disregard following or enforcing any presidential executive order that restricts a person’s rights or if it is deemed to be unconstitutional. It grants the state’s legislative council power to review orders and refer to the attorney general for a ruling on the orders’ constitutionality or the governor, if needed. 

Republicans specify in the bill a few areas that denying to follow an executive order can potentially apply: a pandemic or health emergency, the regulation of natural resources, the agricultural industry, the financial sector, the right to bear arms, and the use of land. 

On March 28, state Rep. Christina Bohannan, D-Iowa City, wrote on Twitter:

@IowaGOP in the House put a bill on the debate calendar that they admit is unconstitutional, all to make a point against the federal gov’t. Result: Iowa could lose millions in federal funding. House Republicans need to start thinking about what’s best for our state for a change.” 

Bohannan, a law professor at the University of Iowa, makes three claims: that the bill is unconstitutional, that it will decrease federal funding, and that House Republicans have admitted this bill is unconstitutional. 

Rep. Bobby Kaufmann, R-Wilton, is the House State Government Committe’s chair. Bohannan and Rep. Brooke Boden, R-Indianola, were State Government subcommittee members dealing with the bill. 

The bill had been set for debate the last week of March but Kaufmann held it from the House floor. It was referred back, with several amendments, to the State Government Committee on April 15. Its future in this year’s legislative session is unclear.

The proposed action is popular in Republican-led states. Bills similar in scope and wording were introduced this year in state legislatures in other states, including Missouri, South Dakota, North Dakota, Oklahoma and Tennessee.

Constitutionality

Presidential executive orders are directives from the U.S. president that manage federal government actions in the executive branch, not state government. But they can have the same power as federal law because of their effect on federal programming, including that which affects state spending and policies. 

Congress can overturn them but doing so is difficult, notably because the president can veto the action, the National Constitution Center states. Congress also may pass laws that make implementing the orders difficult, the American Bar Association points out. Also, the courts may strike them down for lack of presidential authority or constitutionality.

The U.S. Constitution does not mention presidential executive orders. But the Congressional Research Service states that they are acceptable practices under the president’s power, upheld in the courts, and that they can influence private citizens’ behavior. Moreover, the Constitution’s Article II that gives the president executive powers requires that the president ensure that federal laws are faithfully executed, the National Constitution Center a nonpartisan organization whose chairs have included presidents and vice presidents from both major political parties, states.

Bohannan told PolitiFact Iowa the Constitution makes clear that federal law is supreme over state law. She is referring to the document’s Article XI, which states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In Oklahoma, Rep. Jay Steagall, R-Yukon, argued that the Constitutions 10th Amendment allows  for Oklahoma to claim sovereignty when it comes to presidential executive orders. That amendment limits federal power over states and could be read to establish state power over the federal government, with the federal government serving as an agent to the states, a resolution in the Oklahoma Legislature he introduced says.

But Bohannan, a law professor for 20 years, wrote in an email, “It is well-established that valid presidential executive orders are treated as ‘Laws of the United States’ just as congressional statutes are. So, a court reviewing this state statute would have to find it unconstitutional on its face.”

There is precedent for states to fight executive orders, but not in the manner Iowa Republicans advocate. Historically, the courts have determined executive orders limits and constitutionality. The Congressional Research Service states, “The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer established the framework for analyzing whether the President’s issuance of an executive order is a valid presidential action.” 

We reached out to Republican lawmakers, including those who are lawyers, for any opinion on the bill’s constitutionality. Wills, an environmental coordinator who introduced the original bill, and Rep. Stan Gustafson, a Cumming lawyer, did not respond to requests for comment. Rep. Brian Lohse, a Bondurant lawyer, responded but declined to comment on the constitutionality question.

Kaufmann declined to comment. More on that later.

Federal funding for Iowa

The federal government provided Iowa with $6.9 billion in fiscal 2019 and $10.8 billion in fiscal 2020 for general, capital and other spending, state budget reports show. 

Bohannan wrote to PolitiFact Iowa that federal funding makes up about 30% of the state budget and that it amounts to billions of dollars. Executive orders often put conditions on receiving federal funds that federal agencies ensure are used in compliance with the conditions for those funds. Not complying could mean losing those funds.

“In the Iowa budget, from about 2014-2019, federal funds accounted for between 29.4 to about 32% of the state general revenues. So, I just said ‘about 30%,’” she wrote.

Presidential executive orders can affect states, notably when they require certain actions in order to receive federal funding. Whether Iowa would lose the billions of dollars it gets from the federal government each year and what portion if it did is conjecture.

Admitting Unconstitutionality 

Then, there’s this political tweak, that House Republicans admitted this bill is unconstitutional. Bohannon wrote to PolitiFact Iowa that Kaufmann“admitted it was unconstitutional in his opening comments on the bill during a committee meeting on March 4.” She wrote that Rep. Mary Wolf, D-Clinton, and Rep. Bruce Hunter, D-Des Moines, were in the room and heard him say it. 

“Bobby said something along the lines of: ‘and yes, Representative Bohannan, I know you’re going to say it’s unconstitutional and I admit it,’” Wolf wrote in an email. “‘Parts of the bill probably are unconstitutional. I realize that. But I believe this bill is necessary because …’ And then some stuff about sending a message or making a point or Biden is evil or some such.”

Hunter wrote, “I believe he was exactly saying that this bill was unconstitutional, but the majority party was going to run it anyway.”

Kaufmann declined the opportunity to refute the claim about calling the bill unconstitutional. “I like and respect Rep. Bohannan but she seems to think her tweets and frequent Guest Columns in all newspapers in the State somehow merit and force answers from other Legislators in the State. That is NOT the case and if we choose to move the Legislation I will let you know,” he responded in an email to PolitiFact Iowa. 

Kaufmann wrote earlier in our reporting that the bill was alive but pulled from floor debate the last week of March to deal with funnel week, when bills not ready for debate die for the year. 

Did Kaufmann admit the bills were unconstitutional at a State Government Committee meeting? Bohannan’s claim is corroborated by two other Democratic representatives. Kaufmann chose not to refute it but he also didn’t confirm it when declining to respond. No video or audio recording of the meeting exists.

Bottom line, the Constitution throws its weight toward the president’s authority and an executive order’s power but how disobeying an order could affect Iowa’s federal funding is conjecture. With so many states considering such action, chances exist that the courts ultimately would decide constitutionality.

Sources: 

“Legislative Oversight of Emergency Executive Powers,” National Conference of State Legislatures website 

“Executive Orders: An Introduction,” Congressional Research Service website 

“Executive Orders: Issuance, Modification, and Revocation,” Congressional Research Service website

“What is an Executive Order?” the American Bar Association website

“Judicial Review of Executive Orders,” Federal Judicial Center website

“Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court,” Constitution Annotated website at constitution.congress.gov

U.S. Constitution, presidential powers and supremacy clause, Article II and Article VI section 2

Executive Orders 101: What are they and how do Presidents use them?” and  Board of Trustees, National Constitution Center

“Executive Orders: Issuance, Modification, and Revocation,” Congressional Research Service, April 16, 2014

Twitter, Christina Bohannan

Christina Bohannan website statement

Christina Bohannan email

Bobby Kaufmann emails

Brian Lohse email

Iowa Budget Report: Fiscal 2021

Iowa Budget Report: Fiscal 22-23

Iowa Budget Report: 2020-2021

Iowa Legislature bill tracker HF 815

Tennessee Legislature HB 1229

Missouri Senate, “Sen. Rick Brattin Files Legislation to Reject Unconstitutional Executive Orders,” March 4, 2021

North Dakota Legislature HB 1164

South Dakota Legislature HB 1194

Oklahoma Legislature HB 1236

“Oklahoma’s GOP lawmakers aim to invalidate Joe Biden’s executive orders,” The Oklahoman, Feb. 23, 2021

Oklahoma Legislature, HR 1005

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