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NWA EDITORIAL: Pursuit of power

Legislature grabbing for it in every direction by NWA Democrat-Gazette | May 2, 2021 at 2:00 a.m.

The American democratic principle of three co-equal branches of government isn't painted in red letters on the exterior of the Arkansas State Capitol, but we're sure the lawmakers serving in the 93rd General Assembly are aware of the concept.

Indeed, as much recent noise as has been heard about saving the nation from socialism and similar threats from those "other" Americans who don't quite sound American, surely the foundational structures of American governance -- that precious balance among judicial, executive and legislative powers -- remains front of mind in the state's halls of power.

But we're not so sure.

It seems, to the contrary, that a goodly number of Arkansas legislators are all for mamas, apple pies and the Fourth of July as long as some critters ... uh, we mean, elected officials ... are just a little more equal than others.

Who can be blamed for wondering such things after the legislative session just recessed down in the Capital City?

It was a session in which the majority -- they happen to be Republicans -- went on steroids in their attempts to whittle power away from others and concentrate it in the Legislature's hands.

There's hardly anyone legislators haven't attempted to drain power away from, including the very people who elected them to the positions they now hold and seek to strengthen.

It's not just in this session, either. A few years back the Legislature came up with the idea to wrest control for the writing of judicial rules from the Arkansas Supreme Court. It turns out the courts from time to time exercise what some of those guys known as Founding Fathers referred to as checks and balances on the other branches of government. But lawmakers don't like being told they've run contrary to, say, the state or federal Constitution, those darned documents that sometimes get in the way of legislative bodies across the country just doing what they want to do.

That 2018 effort was stripped from the ballot because lawmakers threw too many unrelated issues into a single constitutional amendment. But the talk of getting more control over the judiciary hasn't stopped.

Back to 2021's legislative session. Some lawmakers wanted the tentacles of their reach to extend the virtually every level of government -- whether it's the feds or the little ol' city councils across the state.

Perhaps the Legislature's power grab was most prominently on display by its efforts to nullify laws at the federal level with which state lawmakers disagree. They passed the "Arkansas Sovereignty Act of 2021" declaring federal gun laws "null and void" if they "infringe on the people's right to keep and bear arms as guaranteed by the Second Amendment." The legislation specifically nullified the National Firearms Act, which regulates machine guns and sawed-off shotguns, and the Gun Control Act of 1968, which helps to prevent certain felons from possession of firearms.

Gov. Asa Hutchinson, who is no slouch in supporting the Second Amendment, couldn't stomach the Sovereignty Act's overreach. He called it a "defense attorney's dream law," noting how prosecutors worried it would invalidate hundreds of cases prosecuted in the past.

In the end, the Legislature delivered a narrower bill that invalidates only future guns laws from the feds and Hutchinson signed it, no doubt recognizing that the fight over the constitutionality of its enforcement doesn't need to be fought in 2021. It's a considerably weighty question as to whether state legislatures can simply pick and choose which federal laws they want to adhere to. Can cities pick and choose whether to follow state laws?

What about the cities? Because cities are creations of the state, the Legislature does have more muscle to dictate what they can and cannot do. And they decided to flex their power considerably, nullifying the city of Fayetteville's authority to establish its own standards for the use of plastic containers. They also eliminated the power of municipalities to maintain their own mask mandates in the midst of the covid-19 pandemic.

Of course, this legislative session was replete with attacks on the power of the state's chief executive. Lawmakers chafed at the precautions Gov. Hutchinson put in place through his authority to protect the public from a public health threat. Hutchinson handled the responsibility in a balanced way -- far more masterfully, we'd say, than anyone sitting in the Legislature ever could have. But lawmakers were hacked about it, with some of them going so far as to threaten the governor's appointment of Dr. José Romero as his secretary of health even though such appointments have been routine for as long as anyone can tell.

Lest we leave the impression it's only about the branches of government, though, this Legislature isn't shy about grabbing power away from the people they represent, either. In the nonstop attacks on the minuscule population of transgender teens, lawmakers injected themselves into the medical decisions that ought to be made between doctors and parents. Is that where small-government Republicans think government ought to be?

The 93rd General Assembly isn't done. It's hoping to convince voters next year to make it harder for the citizens themselves to propose initiated acts and constitutional amendments. Why? Because some of those efforts in the past have thwarted ideas the Legislature wanted or, conversely, created laws the Legislature didn't like at all.

When the citizens' power gets in the way of the Legislature, it must be time to bring that to an end, right?

Here's one amendment the Legislature undoubtedly hopes Arkansans will fall for: A measure in 2022 that will empower lawmakers, and not just the governor, to call themselves into special session any time the lawmakers want.

With the kinds of power grabs Arkansans witnessed in the 2021 session, does anyone really want the lawmakers meeting more frequently?

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What’s the point?

The theme of the recently recessed legislative session often appeared to be “Power, power, power — who has it and how do we get it?”


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