• Jeff Utsch

In Dire Moments, Arizona Senators Flee While House Members Heed Calling

Arizonans are well-counseled this Spring to ask just who, in government, might take notice of our views — and we should, officially, now be angry.

The system is NOT working as designed.

Our current confusion about who-controls-what during a pandemic offers proof that too many of our legislative leaders either skipped class or weren’t paying attention.

Our legislative branch sits mostly idle today as our 60 representatives and 30 senators allow the governor to take actions and set precedents that are not clearly within his purview. The Senate last week voted to adjourn for the year. The House did not, but without the upper-chamber, the legislative jaw has but one row of teeth.

Arizona faces chaos. The governor, mayors, police and 15 county sheriffs enforce a variety of orders of questionable legal substance. Against this messy backdrop, who might offer clarity?

Yes, the governor has a role to carry out his duties but only as the Constitution and state laws mandate — nothing more.

When there is vagueness and unclarity in the laws language, yes, the courts can intervene but the primary responsibility for clarifying these granted powers lies with legislators.

The legislative branch is the most powerful in our republican form of government. (There is no “co-equal” branch as many believe. Read The Federalist Papers; I need not say more. )

Why is this? Because the legislative branch is supposed to be the closest to and most influenced by the people. You can do an easy experiment yourself to see if this is true.

Just try, I dare you, to call the Governor’s office with a suggestion or complaint. Odds of winning the Powerball are greater than receiving a response. But, call a state representative or senator and you’ve just dramatically increased the odds.

Therefore, no full-legislative session? Bye-bye to the people’s voice.

In a time of crisis, where it has become evident that our laws and statutes are not adequately written, it is up to the legislature to intervene. Hard questions need to be asked and answered.

And, yet, as fast it took to swing a gavel, the state senate cast these pressing issues and your voice aside and went dark, severing the link between 7.3 million Arizonans and public policy. Now, there’s a real power-failure.

A doff of the hat to the House, willing still to confront some of these issues. It sets an example to a wayward counterpart. The House may not be able to pass laws on its own, but it can certainly start the ideological ball rolling and survey for any abuses committed by the executive branch.

Here, then, is what the House might just do — and the Senate might lament not doing:

  • Listening to citizens and enabling them to feel enfranchised. (As it stands, the average Arizonan is not heard and bonds that link us are fraying.)

  • Deliberating tough questions about how to handle crises now and in the future.

  • Educating one another, and the public, about legislators’ roles, how government works and how each branch is to comport itself during times of trial. (The Legislature might even hold a daily briefing on topics discussed during a day’s session, along with progress and stumbling blocks.)

  • Clarifying vague and ambiguous laws that cloud understanding of rights, recourse and powers of the State.

  • Realigning power between the legislative and executive branches. (As mentioned above, the Legislature needs to be active and reassert itself into the discussion going on during this or any crisis to maintain a true republican form of government. Too easily, legislators willingly delegate power to the executive branch, ignoring that this is how republics end. They shirk their responsibility in delegating that which they have no power to delegate.)

  • Being an example of how to do it the right way! (What an opportunity to teach our children how government is supposed to work and that we really are “of, for and by the people.” Instead of the State wresting more control from the people with each and every crisis, we lead other states by demonstrating how a crisis brings government and citizen closer together, all the while preserving liberty.)

Even if legislators believe they won’t make an impact today, it is imperative, for the future, they address the gamut of issues brought to the surface by COVID-9.

All would be served by following the example of the Constitutional Convention of 1787 on how a group can address one issue at a time and report to the people of their undertakings and potential solutions. Yes, this takes sacrifice. Yet, if this crisis, where so much is at stake, is not worthy of our time and attention, then what is?

Just in case our 90 elected legislators could use some help, here is fodder;

  • Precisely what authority, under the Arizona Revised Statutes, does the Governor have to do what he has done thus far?

  • Does the Legislature agree that the Governor has the power to do what he has done thus far or do these powers need to be changed?

  • To the extent that orders interfere with the rights of free assembly and free exercise of religion, what is the legal basis for the orders? (This will be essential to public support because there is no such corroboration in the Revised Statutes or the State Constitution.)

  • When are Constitutional rights, state or federal, subordinate to the Revised Statutes?

  • Does the Bill of Rights apply to the States or not? Which ones do and which ones do not? (This, too, is vital to grasping our state’s legitimate powers. The state has more power if the Bill of Rights do not Many scholars, in current times, and many originalists, believe the Bill of Rights does apply to the States. Certainly, most progressives believe this as it has been the basis of much of the power shift towards the Federal government and away from the states. We need to be consistent on this and not just when it meets our political needs.)

  • Should the Governor be able to declare a state of emergency without the consent of the Legislature? Now, he can. Ought he be permitted, but then have to have the declaration ratified within a specified time-frame?

  • Can we better define what the Governor considers an emergency?

  • What powers do we want to give the Governor during a state of emergency?

  • Should we have levels of declared emergencies that carry specific powers delegated to the Governor or Legislature?

  • Should the Legislature be involved in ratifying these powers individually (“a la carte”) or as a whole (“carte blanche”)?

  • How long should these powers last without approval of the Legislature?

  • Should these powers always be the same or should the legislature be required to give consent to some? And, what should be their duration? Do these powers expire without a confirmation of by the state legislature? (This would help by FORCING our Legislature to engage in the crisis. The people need them to do to do their jobs and represent us.)

  • Should there be different levels of emergencies that might, for example, be color-coded and that would trigger different powers granted a Governor?

  • Should the Legislature have been more involved in the COVID-9 strategy or allowed the Governor to have proceeded as he has chosen?

  • What role should mayors and county supervisors play in calling an emergency, and should they continue to have these broad powers? Do we want to curtail them or introduce limitations until they petition the Legislature?

  • What federal enticements exist for declaring states-of-emergency and how do we weigh what triggers federal help, given the extraordinary powers of the Governor?

  • Should there be some emergencies that simply involve obtaining federal aid but do not grant additional authority to the Governor? Just as some are given incentives not to work when unemployment benefits exceed regular pay, it is possible that the federal government’s grants to the state, if we stay in a state of emergency, are hurting our efforts to recover and thrive on our own?

  • Who decides what is “essential” or not? Is this arbitrary labeling a power the executive branch should have?

  • Do we trust future governors with precedents set during this crisis – and, if this is deemed a true crisis, what other phenomena will be so considered, as well?

  • What recourse does an individual have against what he perceives to be government takings?

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