Governor stands ground, gives ground
The separation of powers has been on display in Arkansas lately. With one branch of government, Gov. Asa Hutchinson stood his ground – for a few days, anyway, until there was a reason to stop. With the other, he’s giving ground.
Hutchinson stood his ground with the Arkansas Supreme Court. Last Thursday, the Court under Chief Justice Dan Kemp decreed that lawyers, judges and others in the legal profession are “essential workers” to be included in Phase 1-B of the state’s COVID-19 vaccination plan, and they should immediately be eligible for their shots.
Hutchinson said no – sort of channeling his inner President Andrew Jackson, who allegedly once said of the nation’s chief justice: “John Marshall has made his decision; now let him enforce it.” Without a court case, the Supreme Court had no authority to order the governor to change the vaccine schedule that has been constructed based on medical science. Hutchinson, a lawyer, made it clear he would not comply.
Then he altered his course, though not for constitutional reasons. On Monday, the governor announced he was making everyone left in Phase 1-B eligible for the vaccines, which includes among others food and agricultural workers, grocery store employees, and certain judicial branch employees.
The governor said he made this move not because of the court order but because not enough people were showing up to vaccine clinics over the weekend, either because they’d already had their shots or didn’t want them. An event in Jonesboro that had room for 3,000 individuals attracted 2,000.
We can’t have these vaccine vials just sitting in freezers – or worse, open and spoiling, which hasn’t happened much. Only 234 doses had spoiled out of more than 1 million as of Monday. So the governor advanced the rest of the members of Phase 1-B, which included judicial branch employees covered by the court order.
I guess it worked out OK. More shots will be getting into arms faster, including for members of the judiciary who perform a vital service that has been disrupted by the pandemic. The governor made his point about the court order. A separation of powers principle – courts have power via court cases, not edicts – was affirmed.
Meanwhile, the governor gave ground when it comes to his office’s emergency powers, like the kind he has been exercising in the pandemic. During a meeting with reporters in his office March 3, he expressed support for Senate Bill 379 by Sen. Kim Hammer, R-Benton, and Rep. Jimmy Gazaway, R-Paragould, which sets up processes for the Legislature to end a governor’s declared state of emergency.
It passed the Senate, 274, and is headed to the House Public Health, Welfare and Labor Committee.
Hutchinson said he had worked with legislators to accomplish their desire for greater engagement during an emergency, but said governors must be able to respond to a public health crisis.
“I’ve worked on this. I’ve read this. And while it might not be perfect, I think it does achieve that balance, and it provides the chief executive the flexibility that’s needed,” he said.
He said he would sign the bill if it passes in its current form. He half-jokingly declined to say he supports it because that might make legislators want to make the bill tougher for governors.
By saying he would sign the bill, the governor was engaging in practical politics. According to the textbooks, under the separation of powers, the Legislature makes the laws and the governor executes them, but this past 12 months Hutchinson has issued a lot of executive orders with the temporary force of law. This was an extraordinary situation with a worldwide pandemic, when lawmakers gave their own ground as he exercised emergency powers. Now they’re taking some of that ground back, and he’s going to have to give it to them.
As for the judicial branch, he still doesn’t have to comply with the court order, but we also can’t be wasting vaccines.