A Little Background
In last night’s special meeting about a mask mandate, I prefaced the discussion by saying I believed the debate had two main components -- whether we “can” do a mandate, and if so, then whether we “should” do a mandate. Let’s leave the “should” totally out of this article, and focus on whether we “can”. It comes down to a very important principle in the 25th Amendment to the Iowa Constitution, called Home Rule. And it says that a municipal government can indeed issue a mask mandate, through decision of the City Council, if desired.
I'll also note that this morning, I spoke with Governor Reyolds to give her the details on last night's special meeting and the Council's resulting to "postpone indefinitely" the mask mandate resolution. I also sought to make clear to her that my challenging the Governor's Office and Attorney General's opinions on Home Rule were not in any way partisan but simply my sincere effort to follow the law as faithfully as possible. It's very important to me that this Home Rule challenge not be taken as a partisan attack, or any other kind of political maneuvering -- especially with major elections just ten weeks away. I'll note that I also asked her to consider implementing the "fix" I note at the bottom of this blogpost, to eliminate this pandemic Home Rule controversy once and for all. In that friendly call, she could only state that she would consider it as part of today's task force meeting, and I very much appreciate that.
The Current Emergency Proclamation
In the case of the most current Emergency Proclamation (July 24, 2020), Governor Reynolds provided strong recommendations for hygiene and sanitation, in line with the recommendations from the Iowa Department of Public Health. I appreciate that a municipality cannot then attempt to countermand the Governor’s Emergency Proclamation. That would be an illegal action. But municipal public health mandates which are more restrictive than the Governor's orders would not “take away”, but simply "add to".
Home Rule as a Fundamental Principle in the Iowa Constitution
As a Mayor, I cannot simply accept a statement that “the Governor’s Office says we can’t issue a mandate” or “The Attorney General has stated that Home Rule doesn’t apply here”. Those are simply opinions, not law. As the leader of a municipal government, I took an oath to support the U.S. Constitution and the Iowa State Constitution, rather than the Governor's Office or the State Legislature. In other words, I'm expected to follow laws, not people. And while I certainly don’t want to be at odds with the Governor’s office, I have to respectfully disagree with the current interpretation of the Attorney General. This isn’t a trivial legal technicality...it’s a core feature of the authorities granted by the Iowa Constitution. And it doesn't require a law degree to understand the plain reading of the law. The Iowa Constitution, Article III, §38A, states:
"Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.
The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state."
[Iowa Constitution, Article III, §38A].
Because a more restrictive provision than what's currently in the Governor's Emergency Proclamation would be "not inconsistent" with the Emergency Proclamation, cities (and for that matter, counties) are allowed by the Iowa Constitution to create the more restrictive requirements. To me, no ambiguity exists here.
How this Could Be Easily Fixed
That said, this disagreement would vaporize if the Governor would add to the next Emergency Proclamation a simple statement like,
“County and local governments are not permitted to create local mask mandates or issue more restrictive public health requirements beyond those described in this proclamation.”
Such a statement would allow the Governor to qualify the boundaries of state control while at the same time acknowledging and (adhering to) the state constitutional authority granted by the Home Rule Amendment to Iowa's counties and cities. Such a statement would negate any existing local mask mandates, and squash future attempts at local assertion of authority for public health response within the current Declared Public Health Emergency. In short, the statement would provide vital clarity in a critical time.
In the meantime (and with no ill will or desire to contradict the Governor), I must continue to recognize the expansive municipal authorities granted by the Home Rule Amendment, and carry out the executive functions of the Office of Mayor accordingly.