Iowa has had a law on the books for some time now, outlining the powers and duties the governor has during a state of public health disaster emergency. This is the first time it has been used and so all Iowans have had a front-row seat to observe how the law works and should be thinking about changes that need to be made. Some parts of the law have worked well and some need improvement. I would like to discuss in this newsletter what I think needs to be improved.
Our public health disaster emergency law is outlined in Iowa Code sections 29C.6, 135.140, and 135.144. The governor has the power to proclaim a public health disaster emergency and in addition has certain powers during the period of the emergency. A public health disaster emergency is carefully defined and the coronavirus pandemic met that definition.
Provisions of the law have to address many types of possible health disasters. They include funding from the federal government to help with disaster expenses, mutual aid between states, funding to local governments to help them respond, removal of debris, temporary housing, evacuations, and routes of transportation. Those that were applicable to the current pandemic appeared to work fine.
Improvements need to be made, however, in the provision of our public health disaster emergency law allowing the governor to suspend or set aside any law that prevents, hinders, or delays necessary action to cope with the emergency. Our public health disaster emergency law is woefully lacking in protecting constitutional rights; it is in fact silent on that issue!
Our governor has done a good job, as she has looked out for public health and safety with much more regard for citizens’ rights, liberties, and freedoms than have other governors around the country. (Ex. Illinois, California, Washington, New Jersey, Michigan, North Carolina, Virginia, Wisconsin etc.) But for one person to have that much power over a governmental system as complex as state government is, is absolutely too much of a load for one person to carry, even in a public health disaster emergency. More input is needed from others on the governor’s decisions in an emergency like this.
Now the law says the legislature can only end the entire proclamation of a public health disaster emergency. The legislature is not allowed to pick out certain provisions of a governor’s proclamation and let the rest stand. The legislature’s power should not be just an “all or nothing” approach as it is now. The legislature should be able to “line-item veto” provisions of a governor’s proclamation in a public health disaster emergency.
But what stands out most is that more protection needs to be put in our law for citizens’ freedoms under Article 1 which is the Bill of Rights in our Iowa Constitution (very similar to the Bill of Rights in the U.S. Constitution) and under the 14th Amendment of the U.S. Constitution.
Even in a public health disaster emergency, those rights and liberties should be respected. They can be curtailed but the government must show a “compelling interest” to do so and furthermore, the “least restrictive means” of achieving the government’s goal of health and safety should be used, as this is the legal standard for fundamental constitutional rights. That means restrictions on rights cannot be any more burdensome than necessary. The “least restrictive means” was not used in the beginning. Thankfully, we had a governor that, in the obvious case of our 1st Amendment right of freedom of religion, rolled the initial shutdown of churches back to the place where it should be: allowing churches their 1st Amendment freedom to hold in-person services or not, and if they do, to implement health mitigation measures. Churches in other states like Virginia, Illinois, Kentucky, North Carolina, California, and Washington were not so lucky. Our Founding Fathers singled out religion for special protection because it is related to freedom of conscience. It is not a second-class right and not another lifestyle choice or a hobby.
But there is more to be done, and so I would like to see added to our law: No right under the Bill of Rights or the 14th Amendment should be infringed and no church or business should be closed by government order without a compelling government interest and the least restrictive means of satisfying that government interest be used. In addition, the government cannot single out Bill of Rights/14th Amendment-protected activities (ex. religious activities or businesses) that do not apply to other activities, businesses, etc. or close some businesses and not others.
By shutting down businesses, we have shut down citizens’ livelihoods and made them dependent on government. This is more destructive than the virus. Obviously, first of all, this destroys our ability to provide for ourselves and families. As if that isn’t bad enough, it also subtly, quietly, and therefore deceitfully destroys people’s dignity and self-worth and damages our sense of personal responsibility and productivity. It forces us to trade freedom for security when we would never willingly choose that. And that puts us farther down the path to socialism and totalitarian rule. Those are modern-day words for slavery. This is NOT what our Founding Fathers came to America for and NOT what so many brave men and women fought and died for!
Furthermore, we have shut down our lifeblood businesses, our Mom and Pop’s, especially in the rural areas, in favor of our big chain store businesses! We are ruining our local economies and strengthening the chain giants by hurting their competition. This is exactly what we do not want to do!
Other changes needed:
Total unemployment assistance, no matter what source it is from, state or federal, should not exceed the amount of pay a worker receives on the job. Otherwise there is no financial incentive to go back to work. And we are on our way to a “guaranteed income”, which is a tenet of socialism and communism, very destructive of freedom, individual dignity, personal responsibility, work incentive, and economic productivity. All of this is necessary for people to earn the money it takes to pay taxes that pay for the services we want from our government.
Without eliminating legal liability entirely, employers or Bill of Rights-protected entities such as churches who are doing the best they can to deal with a public health disaster emergency by implementing mitigation measures with the knowledge they have should not be subject to legal liability for claims by workers or customers or participants regarding a lack of protection in the workplace or church. This is simply common sense. We are not talking about employers or churches being negligent, careless, and reckless. We are talking about employers and churches doing the best they can but common sense and science tell us that even with the best mitigation measures in place, germs have a way of getting past all that.
No hospital or nursing home should deny the request of a patient or their family to visitation by a pastor, priest, etc. Denying a patient fighting for their life or dying in a hospital or nursing home the services of a minister is one of the worst violations of a person’s right to religious freedom. Ministering to souls is just as essential as feeding and medicating bodies. We see people cut off from their ministers in China, North Korea, and other oppressive and tyrannical regimes but we should not see it here.
Government use of drones, microchips, cell phones, and other technology to track citizens without their awareness, to accomplish a goal related to a public health disaster emergency should be prohibited. “Snitching on neighbors”, as is proposed in some states, and which breeds suspicion and distrust, should also be prohibited. Mandatory contact tracing programs which have been proposed in Kansas City, Washington, and other places should be prohibited as well. All are violations of the 4th Amendment right to be secure in your person or property from unreasonable searches and seizures. Governors in other states like New Jersey and Connecticut have proposed or taken action like this with no regard for citizens’ 4th Amendment rights. This is the kind of government activity we see in totalitarian and communist regimes like China and we do not want it here.
Mandatory quarantine of healthy people should be prohibited. Healthy families should not be pulled apart and quarantined separately without their consent, a measure proposed in California and Washington. These activities, which we see proposed in other states, are again a violation of our 4th Amendment right. Mandatory quarantine of sick people who are contagious in an epidemic is understandable and has been used in the past as a public health mitigation measure. Also, it is understandable if healthy people who are concerned about contracting a disease, want to stay home of their own free will.
Mandatory vaccinations should be prohibited. This is another violation of our 4th Amendment right to be “secure in your person from unreasonable seizures.” The government should educate the public about the need for a vaccination with full disclosure about its relevant particulars, but people should continue to be allowed to decide if we want one or not.
We also need to clarify our law that medical and religious exemptions for the vaccinations required for school enrollment during a public health disaster epidemic are allowed. A child’s body does not become physically able to handle a vaccination just because there is a pandemic. If a child needs a medical exemption before a pandemic, he will need it during a pandemic. Also a citizen should not be required to surrender his religious freedom just because there is a pandemic. The Constitution does not allow exemptions to religious freedom for a pandemic and it’s not because they didn’t deal with it back then. Our Founding Fathers dealt with epidemics in their day and understood the issue of immunity. But they knew that leaving a clear way open for a tyrannical and oppressive government to violate a citizen’s conscience would likely ensure it would eventually do so.
I want to add this final thought: There should be no bailout of states by the federal government. Taxpayers in Iowa shouldn’t have to pay for the budget mismanagement of poorly run states.
I have advocated for these changes to our public health disaster emergency law with House leadership. I would encourage you to please contact your state senator and state representative and express your support as well.