Arizona’s Democratic Gov. Katie Hobbs is facing backlash and retaliation from Republicans over recent executive orders that would bar county attorneys from prosecuting abortion providers and allow state insurance to pay for gender confirmation care for state employees.
Republicans on the state Senate’s Committee on Director Nominations even went as far as canceling all future meetings of the committee until Hobbs agreed to meet and to discuss what they called her abuse of power. Hobbs still expects the Senate to confirm her nominees, she said during a news conference last week.
While Sen. Jake Hoffman, the committee’s Republican chairman and the leader of the Arizona Freedom Caucus, has contended that Hobbs’ executive orders are outside of the norm, history says otherwise, said Erin Scharff, a professor of law at Arizona State University’s Sandra Day O’Connor College of Law.
“I think both the record of many, many years of Arizona governors doing this work and using their executive orders, but also a national framework that governors use executive orders to do these exact kinds of things, is an important piece of the debate that I think sometimes is missing,” Scharff told the Arizona Mirror.
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After the constitutional right to an abortion was overturned by the U.S. Supreme Court last year, governors across the country, including in Colorado, Maine and California, issued executive orders protecting the right to abortion in their states.
According to the Council of State Governments, the executive power of the Arizona governor is implied, meaning there’s no state statute that directly lists the extent of the governor’s executive power, including when it comes to executive orders.
The Arizona Constitution establishes three co-equal branches of government, including the governor’s office, which is tasked with implementing legislation.
“In executing laws and implementing statutory frameworks and in running agencies, the statute doesn’t tell you how to do that day by day,” Scharff said. “So, implied in executing the work of government is some ability to direct that execution.”
People can be critical of how Hobbs does that, and even challenge her execution of the laws in court, Scharff said, but there’s no question that implementation of laws is within her power. Of course, just because Hobbs has the authority to issue executive orders doesn’t mean that all of her orders align with the state constitution or state statute, Sharff added.
Since before Arizona was a state, executive orders in Arizona have been a way for governors to assert their power and show their appointees and public how they would like to see things run.
The first executive order available through the “Arizona Memory Project” — a project of the Arizona State Library — was made in 1902 by territorial Gov. Alexander Brodie. It showed appreciation for a retiring colonel’s service in the Arizona National Guard.
Although that order was of a much less serious nature than Hobbs’ recent orders, as time moved forward, Arizona governors issued more executive orders — and more controversial orders.
In the 1940s, Democratic Gov. Sidney P. Osborn issued executive orders regarding civil defense, as the country and Arizona faced WWII.
Democratic Gov. Samuel Goddard Jr. used an executive order in 1965 to establish a Commission on the Status of Women, saying in the order that “the basic rights of women have largely gone unrealized due to prejudice and antiquated customs.” The commission focused on employment practices, labor laws, political, civil and property rights.
Republican Gov. Jan Brewer issued more than 60 executive orders, including one that used her authority to assert that the federal government’s Deferred Action for Childhood Arrivals program did not entitle those granted employment authorization documents to any benefits through the state government, including driver’s licenses.
Republican Gov. Doug Ducey issued more than 120 executive orders over eight years, many of which asserted his emergency powers during a public health crisis to help businesses, schools and the government deal with the COVID-19 pandemic.
Hobbs has so far issued 12 executive orders in her first six months as governor, but has received the most criticism and backlash after her most recent two. Hobbs’ June 22 order told county prosecutors to defer prosecution of abortion providers to Attorney General Kris Mayes, and an order on Tuesday banned the use of state funds for conversion therapy and allows state employees who are transgender to receive gender-affirming care through state insurance.
Republican Maricopa County Attorney Rachel Mitchell, who declined an interview with the Mirror, said during a Wednesday press conference that Hobbs’ abortion prosecution order was “reckless and dangerous,” saying it stripped power away from county attorneys.
“This act was not a routine act of governance,” Mitchell said. “It was a procedural manipulation aimed at a highly emotional topic, done to win political points. At best, the executive order was a solution in search of a problem, but in reality it was an unnecessary power grab and dangerous precedent.”
Mitchell would not comment on the legality of the order, saying she and other Arizona county attorneys are determining how to respond to the order, adding that litigation is a possibility.
She added that this order sets a dangerous precedent, because a future governor could order prosecutors not to enforce other laws, based on his or her personal feelings about them. Mitchell believes that decisions about the future of abortion regulation in Arizona should go through the same process as others: either be approved at the ballot by the voters or through a shared effort between the legislature and the governor.
But Sharff said Mitchell and other critics seem to be using their opposition to Hobbs’ policy choice to argue that she’s gone far beyond her legal power, which isn’t necessarily the case.
“Just because you disagree with the governor’s policy position does not mean she doesn’t have the authority as governor to think about how to use state resources to advance policy priorities that, frankly, she was very clear with the voters about,” Scharff said.
She added that those who challenge the governor’s executive order should be able to point to a specific statute that makes it unlawful.
Hobbs has said she is confident her executive action is perfectly legal — and she’s willing to defend it in court, if needed.
“We are very confident in the legal foundation of the order, and if someone feels otherwise there is a mechanism for them to remedy that,” the governor said during a press conference last week.
Per the executive order, if a county attorney brings a case against an abortion provider, the AG would take over the prosecution of the case on behalf of the state, Hobbs spokesperson Christian Slater told the Mirror in an email.
Hoffman told KJZZ in an interview last week that most of Hobbs’ executive orders so far have shown “blatant disregard for the law, her blatant disregard for separation of powers that’s enshrined within our Constitution.”
He said the pause on affirming director nominations was an effort to ensure that Hobbs was implementing the laws of the state instead of pushing a political agenda and pandering to her base.
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