The Volokh Conspiracy
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UPDATE (by Eugene), 12/8/2022, 10:31 pm Eastern: Steve Calabresi writes,
In my post yesterday, I was under the mistaken impression that Ed Whalen had bought into the radical "Independent State Legislature Theory" that the North Carolina State Legislature was arguing for yesterday in the U.S. Supreme Court. This is also a theory that former President Donald Trump falsely claimed meant that the Republican State Legislatures of Pennsylvania, Wisconsin, Georgia, and Arizona could have used to nullify the popular vote in those States in 2020 and award their electoral votes to him.
For Ed Whelan's response to the (pre-UPDATE) Calabresi post, see here.
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Donald Trump's Constitution and Moore v. Harper
By Steven Gow Calabresi
(Professor, Northwestern Pritzker School of Law; Visiting Professor, Yale Law School)
In an op-ed in the Tuesday, December 6th edition of The Wall Street Journal, I argued that each State has the power to define whatever form its state legislature should take. In Moore v. Harper, which will be argued on Wednesday, December 7th [today], and which the U.S. Supreme Court justices will vote on at their Conference on Friday, December 9th, the Court will construe Article I, Section 4, Clause 1 of the Constitution, which says "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
Ed Whelan, who is the guardian of former Justice Scalia's legacy, in National Review Online disagreed with my op-ed by arguing that a State Legislature is only the State House of Representatives and the State Senate and nothing more. In Bush v. Gore (2000), Justice Scalia famously argued that that was what the Presidential Electors Clause meant. The Presidential Electors Clause says that: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ***." Donald Trump, relying on Scalia, wanted the Republican State Legislatures of Pennsylvania, Wisconsin, Georgia, and Arizona in 2020 to award him those State's electoral votes on the ground that the public vote in those States was marred by fraud. So, there is a lot at stake in Moore v. Harper.
The flaw with Ed Whelan's and Scalia's literal, acontextual, textualism is that under the U.S. Constitution State Legislatures can be unicameral, bicameral, subject to a Governor's veto, subject to judicial review under its state supreme court, or consist, as in 26 out of 50 states, of the people of a state voting directly on an initiative or referendum. State Legislatures, today, are radically less powerful and very different from what they were in 1787, as is shown by the fact that whereas in 1787 only one state out of thirteen gave its Governor a unilateral veto power, today all fifty State Governors have some form of veto power and most States give their Governors line-item veto power, which even the President of the United States does not possess.
The only constraint that the U.S. Constitution imposes on State constitution writers is that they provide for a republican form of government. This means no theocracies, dictatorships, or hereditary oligarchies. Anything else is fair game. A state could, if it wanted to, have a parliamentary system of government, or a judiciary, as the United Kingdom did for most of its history, in which a committee of the upper house of the legislature was the State's Supreme Court.
Under Ed Whelan's and Justice Scalia's literal reading of state legislature as meaning only the State House of Representative and the State Senate, the President could not veto the admission of new States into the Union because Article IV, Section 3 says that "New States may be admitted by the Congress into this Union." Under Whelan-Scalia originalist hyper-textualism, the President could not veto laws governing the federal territories because Article IV, Section 3 also says "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
But we have never read Article IV, Section 3's reference to just the Congress as precluding a presidential veto over the admission of new states or of laws governing the territories, and it would be absurd to do so. The words "Congress" and "State Legislature" in Articles I, II, and IV refer to national and state lawmaking processes and not to particular institutions.
Article I is about the legislative power and not about exclusively either the Congress or the President whose veto is mentioned in Article I, Section 7. When Article I, Section 4 or Article II, Section 1, Clause 2 refer to State Legislatures, they are referring to the state lawmaking processes, which in a majority of the states today includes initiatives and referenda. Moore v. Harper raises a political question because under the Guarantee Clause the original Constitution textually commits to the States and not to the U.S. Supreme Court the original sovereign power to adopt whatever Republican Form of Government they happen to like. Pacific States Telephone & Telegraph Co. v. Oregon (1912); and Calder v. Bull (1798). Any ruling to the contrary would be a big Supreme Court national power grab.