[RETRACTED] Calabresi Responds to Whelan on State Legislatures and Moore v. Harper

What is meant by "each State by the Legislature thereof" that prescribes how to conduct elections?

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.

[* * *]

Steve Calabresi sent me a rejoinder to Ed Whelan's response to Steve's recent op-ed in the Wall Street Journal. Whew! The subject is Moore v. Harper, argued today in the Supreme Court:

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.  

Comments

[Lee Moore]

Calabresi's Article IV Section 3 argument fails because of the Article 1 Section 7 requirement of presentment to the President. Thus the power to act under Article IV Section 3 is, as with Congress's ordinary legislative power, a power belonging to the Congress alone. But the President has the power, in the form of his presentment veto, to prevent the Congress from exercising its power.

Although the President's power to prevent the Congress's attempt to act is analagous to a State Governor's power to prevent the State Legilslature from acting, there is a subtle, but decisive, difference.

The Federal Constitution trumps anything in the State Constitution - thus the State Constitution allowing the State Governor a veto cannot constrain a power granted to the State Legislature (sans any mention of a Governor's veto) by the Federal Constitution.

But the same is not true of the President's veto power over Congressional action. That veto power sits in the Federal Constitution, co-equal to Congress's power to act. Thus Congress's power must be accommodated to the President's power to prevent action. Both parties' power derive from the same, equal. source of power.

But that doesn't apply to any power granted to State actors other than the State Legislature, by the State Constitution. Such powers are inferior to the State Legislature's power (over federal election matters) granted by the Federal Constitution. And are therefore of no account.

[Rossami]

Well argued. I'm not sure that I agree but ... Again, very well argued.

[Randal]

Well argued… perhaps. But totally irrelevant. Lee’s taking Ed Whelan’s position as a premise:

a State Legislature is only the State House of Representatives and the State Senate and nothing more.

Steve’s point is that’s just a misread of the Constitution, and State Legislature means “state lawmaking processes,” not “particular institutions.” That is, the Federal Constitution’s references to the State Legislature include things like executive veto, judicial review, and people’s referendums — whatever the State’s constitution defines as the lawmaking process.

So Lee, you’re just saying you agree with Ed and disagree with Steve, then a bunch of additional dicta that doesn’t bear on the question.

[Michael P]

It's a shame the Founders were such bad writers that they couldn't use words that mean what they intended, huh?

[Reallynotbob]

Like "militia"?

I heard Scalia speak to the body of the Harvard Law Review on originalism. His analogy (used other places also) was to reading Shakespeare with annotations to understand the jokes. For example, did you know that the title "Much Ado About Nothing" contains a bawdy pun? I wouldn't either as a modern reader.

The obvious difference, of course, is that Shakespeare wasn't writing by committee. That single writer intended to convey meaning using one set of text intended to be understood by his audience and judged on their contemporary values. The Founders were writing via negotiation, and to facilitate that negotiation they were borrowing ideas from other systems and times and hammering them together with new ideas. Some of those values were clearly intended to grow with the nation. Reading the Constitution like it's old literature is incomplete, if possible at all.

[Lee Moore]

No, you've missed the point.

True, Calabresi imagines that "by the legislature thereof" means "by the full panoply of state lawmaking procedures in accordance with the state constitution" and I accept that that is a view. A pretty nonsensical view which is, as I mention below, basically just a search for non-existent ambiguity.

But my comment above is not intended to engage with Calabresi's whole argument, merely with the piece of it that claims that Article IV Section 3 supports his argument. He offers, as refutation-by-absurdity, the notion that Article IV Section 3 must, textlessly, be assumed to import the idea of a Presidential veto power. And so by analogy we must assume a, textless, State Governor and/or State Constitution veto/override power over the state legislature's Article 1 Section 4 power.

My point is simply that this element of his argument is obvious tosh, because the Presidential veto power is not textless, it sits there in black and white in Article 1 Section 7.

Hence his analogy is tosh too.

[Randal]

I don't think his argument is that IV.3 textlessly imports I.7... I mean, he obviously knows about I.7 and that it consists of text.

His argument is more that just as I.7 can inform how IV.3 works in practice, state constitutions can inform how I.4 works in practice.

I know your counterargument is that a state constitution can't inform the federal constitution... but that's just a naked assertion. Many people disagree.

Including all the states with a veto, which is most, and which all apply to state election law. So in reality, Calabresi is right.

[Lee Moore]

His argument is more that just as I.7 can inform how IV.3 works in practice, state constitutions can inform how I.4 works in practice.

What is this "informing" of which you speak ? Article I.7 is an explicit, unambiguous, provision in the federal constitution which grants the President power to constrain explicit, unambiguous, powers exercisable by Congress. It is not a helpful bit of context to assist in the deciphering of the meaning of the power granted by Article IV.3. It's just a Presidential trump card, conferred by the federal constitution.

The argument as to the meaning of Article 1.4 in the federal constitution is not "informed" by any consideration of the interplay of Art IV.3 and Art 1.7. There is no analogue of Art 1.7 in the federal constitution that applies to the state legislature's Art 1.4 power.

The question is not whether a state constitution can "inform" the federal constitution, but whether it can somehow confer a power on the state governor, to interfere with powers granted to the state legislature by the federal constitution, that the federal constitution does not mention.

And even if it could, what has that to do with the explicit constraint imposed by Art 1.7 on Congress's Art IV.3 power ?

I quite appreciate that some folk wish to argue that as a matter of interpretation "legislature" in Art 1.4 should be taken to mean something other than the representative institution that all states refer to as their legislature. But what as that to do with Calabresi's venture into Art IV.3 ?

[Randal]

It sounds like you have your mind made up and are simply allergic to other (better) ways of looking at it. I think “inform” is a pretty well-understood mode of "interplay" between different clauses / statutes / regulations.

Article I.7 is an explicit, unambiguous, provision in the federal constitution which grants the President power to constrain explicit, unambiguous, powers exercisable by Congress.

That’s not quite right, because I.7 doesn’t constrain explicit powers of Congress, it constrains any power of Congress that involves an order, resolution, or vote. Orders, resolutions, and votes aren’t powers, they’re mechanisms for exercising powers, including the power granted to it by IV.3. That is, I.7 helps define the limitations of the mechanisms and procedures of Congress… not by reference to IV.3, but by cabining Congress as a whole.

That’s what I mean by informs, and it’s the exact same interplay that Calabresi (and others) are proposing between state constitutions and I.4. State constitutions define and cabin the mechanisms and procedures available for state legislatures to exercise whatever powers they have, including powers conferred by the federal Constitution.

[Lee Moore]

That’s not quite right, because I.7 doesn’t constrain explicit powers of Congress, it constrains any power of Congress that involves an order, resolution, or vote

I think you are confusing "explicit' with "specific" but no matter, the general effect is as you say. Article I.7 provides the President with a power to stop various things that Congress might wish to do from having any legal effect.

As for this "informing" business I'm afraid I am still unable to distinguish it from handwaving. The point is that there's nothing difficult about the interpretation of either Article 1.7 or Article IV.3. They're both prety clear, and their interaction is pretty clear. There's no puzzle.

I accept that there's an analogy between a State Governor's veto power conferred by the state constitution and the State Legislature's legislative powers under the state constitution. It's the same sort of deal as what is going on in the federal constitution. But the analogy doesn't "inform" anything about the mysteries of Article 1.4.

This is because we are trying to work out what "by the legislature thereof" means. This is an interpretation question which is not "informed" at all by the analogy with Article 1.7 and Article IV.3 because those two provisions present no interpretation problem.

If we really strained to use that analogy to interpret Article 1.4, we would note that in Article IV.3 the meaning of "Congress" is unambiguous - it is as specified in Articile 1.1. It describes the two institutions, not the "national legislative process". This is why Calabresi is so keen to gaslight us - yup gaslight us - into believing that "Congress" in the federal constitution means the opposite of what it is explicily stated to mean. He needs "Congress" = "national legislative process" to help him handwave "legislature" = "state legislative process".

But sadly, if it works at all, and it really doesn't, his analogy works against him. Because Congress means the two institutions. Not the national legislative process.

Calabresi is just shooting his own feet.

[Randal]

I think you’re probably right about that. Calabresi is unnecessarily confusing things by insisting that “the legislature” literally means “the lawmaking process.” But it’s an easy fix, since it’s not necessary to his point.

Think of “the legislature,” just like “Congress,” as referring to the institution including the procedures and mechanisms that define and cabin the exercise of its powers. In the federal case that includes I.7, and in the state case it includes the state constitution.

I think Calabresi is just using "the lawmaking process" as shorthand for that combination of institution plus mechanism.

[Alpheus W Drinkwater]

I just got back to reading this exchange, very very interesting. Thanks to both of you!

[Kazinski]

My take is a lot closer to Calabresi’s than Whelen’s, with the exception of claiming a judicial body can be a legislative body, unless of course the state constitution specifically creates a judicial legislative power.

I’m not a state constitution expert, but the US Constitution is clear: “All legislative Powers herein granted shall be vested in a Congress of the United States”

I'll also note that that initiatives and referendums would be completely unsuitable and unwieldy to handle some of the issues that the framers would certainly expect the legislature to deal with. Like for instance flooding, a blizzard, or other natural disaster that would so disrupt voting that the legislature would have to act.

[rloquitur]

The judiciary, in some states, has legislative powers--they adopt rules of evidence (and override contrary statelaw) and other things (e.g., Bar rules).

[Kazinski]

Lousy example, while there is definitely some overlap in rules of evidence, setting court procedures is certainly within the provence of the court.

And courts don't "override" the legislature, they enjoin the enforcement of laws that violate the constitution. They don't rewrite the law to their own liking, as much as it sometimes seems like it.

[Seamus]

Except that in the case at hand, the court in fact did "rewrite the law to their own liking," by adopting a redistricting scheme to replace the one enacted by the General Assembly.

[bratschewurst]

In this case, the NC legislature had passed a law specifically authorizing the NC Supreme Court to do exactly what it did.

[Michael P]

Is such a delegation valid under the state constitution?

[Jonathan Affleck]

What about judge-made law? It seems like a form of legislating. In the states, maybe the state judiciary should be considered part of the legislater.

[rloquitur]

Wow--you're an idiot. In Indiana, there are statutory rules of evidence which have been overridden by the Indiana Rules of Evidence. There isn't an injunction or anything like that. Congress is the ultimate authority on the rules of evidence in federal court--the Indiana Supreme Court is that ultimate authority in Indiana.

[Randal]

Like for instance flooding, a blizzard, or other natural disaster that would so disrupt voting that the legislature would have to act.

The legislature doesn’t act in these emergency-type cases. The executive does. Typically pursuant to existing state law, but that state law could just have easily been put in place by an initiative or referendum (or the state’s constitution) as by the legislature.

[Brett Bellmore]

But in the immediate case, you can't analogize Covid to a flood or a blizzard, because by the time executives and judiciaries were messing around with state election laws, Covid had been around for a year or more, it wasn't emergent anymore: The legislature had plenty of time to respond in normal order, decide what should be done, and what shouldn't.

Covid wasn't a blizzard at that point, it was just winter.

[LawTalkingGuy]

This is correct. You take the legislature as you find it as created by its state constitution. And if that constitution allows legislatures to be subject to constitutional and statutory restraints as interpreted by its highest court, then that’s the legislature that operates for the purpose of the elections clause. A federal court giving plenary power to a state institution that the state itself did not isn’t enforcing the elections clause as written, it’s forcing a whole new state governmental structure on that state.

[rloquitur]

That's question-begging. "You take the state legislature as you find it." Maybe--but the limits on the body aren't the same as the body itself.

[Lee Moore]

Exactly. The State Constitution can define which institution is the State Legislature - thus it might be a unicameral or a bicameral or even tricameral legislature.

But the powers (and limits to powers) that the state constitution grants to the State Legilslature, are simply irrelevant to the powers that the federal constitution grants to the State Legislature. The power to make regulations for federal elections has nothing to do with state constitutions - it comes from the federal constitution.

[David Nieporent]

So if a state chose not to have a legislature at all, to run its government via popular referendum — something which would be constitutional, as it's a republican form of government — then it would not be entitled to participate in federal elections at all?

[Lee Moore]

Correct. As would also be the case if the state did have a legislature, but which was unable to agree on federal election regulations, as in for example a deadlock between the two chambers in a bicameral legislature.

(Though it is always open to Congress to make federal election regulations to deal with the case of states without legislatures, or states where the legislature fails to make its own regulations.)

We have done this before, btw. An argument appealing to absurdity is of little value to you, if your own preferred conclusion is vulnerable to exactly the same argument appealing to exactly the same absurdity.

[David Nieporent]

Correct. As would also be the case if the state did have a legislature, but which was unable to agree on federal election regulations, as in for example a deadlock between the two chambers in a bicameral legislature.

No; your hypo would involve the state choosing not to run elections. Mine is about the claim that the U.S. constitution would forbid the state from running elections.

[Lee Moore]

A distinction without a difference. The state chooses not to run elections if it chooses not to have a legislature, and if the federal Congress doesn't bail it out.

Just as the bicameral legislature can, if it chooses, resolve its inter-cameral disagreement, the state can, if it chooses, set up a legislature.

In either case, a choice to do nothing and suffer the consequences remains available.

[Randal]

Unfortunately for you, Lee, the Supreme Court already decided against you in Smiley.

https://supreme.justia.com/cases/federal/us/285/355/

The function of a state legislature in prescribing the time, place and manner of holding elections for representatives in Congress under Constitution, Art. I, § 4, is a lawmaking function in which the veto power of the state governor participates if, under the state constitution, the governor has that power in the making of state laws.

[Lee Moore]

OK that's a killer blow. As we all know, the Supreme Court is always right, and never reverses itself.

[Michael P]

By that argument, the law cited by bratschewurst is invalid because the state constitution does not prescribe a role for the Supreme Court in making state laws.

[Kazinski]

"A federal court giving plenary power to a state institution that the state itself did not isn’t enforcing the elections clause as written, it’s forcing a whole new state governmental structure on that state."

Well let's examine that absurd assertion using another clause in the Constitution:

"and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."

Let's say the legislature passes a law forbidding the Governor from making temporary appointments to the Senate. Can that trump the constitutions grant of power to the governor? No.

Obviously this is now hypocritical, since the 17th amendment does allow the legislature decide whether or not to allow the governor to make temporary appointments.

[Float Rider]

The supreme law of the land says that the legislatures of the states have the power to do "x". It doesn't say the state has the power, it says legislatures. Once a state' constitution says what the state's legislature is, why should we think the some of that power given by the federal Constitution also belongs to non-legislative parts of the state government when the election clause gives Congress a check on the legislatures.

[David Nieporent]

The problem with that argument is that it means that for two centuries governors across the country have been unconstitutionally vetoing proposed legislation relating to federal elections, without anyone noticing that it was unconstitutional.

[jb]

...including all of the people who actually wrote the Constitution.

Hence Calabresi's point that this argument is "textual" but also "acontextual" and certainly not originalist.

[Kazinski]

I agree with that, but where we probably part company is I don't think that means the governor can then say: now that I've vetoed the bill, I am issuing an executive order to fill the vacuum.

That is essentially what the judiciary did in NC: 'your solution had problems, now you have to use ours.'

[bratschewurst]

As they were authorized to do by legislation passed by the NC legislature.

[Randal]

As brats noted, the NC legislature also passed a law allowing its courts to replace its unconstitutional maps.

There's always going to be a legal procedure in any given state for figuring out the remedy to a constitutional violation. Just like, some Governors have a line-item veto. Some states have voter initiatives, which the Supreme Court has said also counts as "the Legislature."

It's really hard to detach "the Legislature" from a state's lawmaking process as a whole and say for these laws, you can do whatever you want, the state constitution simply doesn't apply. The state constitution creates the legislature in the first place. In fact, technically, if the group of state legislators does something unconstitutional, like pass a gerrymandered map, they're not acting as "the legislature" at all, which itself violates the Federal Constitution.

[Michael P]

In fact, technically, you are making that all up. And you are not engaging with the argument: The legislature is a particular body, and they have a defined role in the lawmaking process. If the US Constitution meant what you wish, it would instead say:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Laws thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

See how easy would have been to express what you wish they meant?

[Randal]

You mean I’m not agreeing with your argument. I’m certainly engaging it.

I’m not moved by arguments that center on updating the Constitution’s language to align with modern sensibilities. I suspect the founders didn’t like the idea of giving agency to “Laws.” It’s still the legislature that’s doing the prescribing in the main, just, they’re expected to do it the way they do everything: according to their chartering, sovereign document, the state constitution. I think that’s unexceptional.

To the extent the state constitution conflicts with the federal constitution, obviously the federal one wins. But putting in an executive veto and a judicial review doesn’t make for a conflict. It’s just defining the operation of the “legislature.”

What do you think I’m “making up?” Here’s from today:

JUSTICE JACKSON: Because the lawmaking authority of the entity in question comes from the state constitution, right? I mean, if it’s a lawmaking function that we’re tapping into, it’s the state constitution that gives that entity its lawmaking power and tells it when and under what circumstances and how it can act as the legislature, right?

GENERAL PRELOGAR: Exactly. And this is blackletter law, Justice Jackson. A law that violates the Constitution is no valid law at all. And North Carolina, like in many other places, it’s void ab initio.

[Michael P]

Okay, then reword it to in the Laws thereof. Your claims are still pants-on-head stupid, contrary to the text, and inconsistent.

If the Founders did not want to give agency to "Laws", why would they give agency to "lawmaking authority" embodied in a process?

Neither the US Constitution nor the NC Constitution give any scope for a state's courts to draw legislative districts or otherwise prescribing the times, places or manner of holding elections. But that's what the NC Supreme Court did.

Yes, I get that Justice Jackson wanted to lob a softball to the SG. It's too bad that the SG did not answer the question -- she talked about unconstitutional laws, not the source of lawmaking authority. A real answer would have been "The authority to regulate federal elections comes from the Elections clause of the United States Constitution." States don't have the authority to write rules for federal property, and without this clause, they would not have the authority to regulate federal elections.

[Randal]

If the Founders did not want to give agency to “Laws”, why would they give agency to “lawmaking authority” embodied in a process?

You could think of it as a stylistic thing. You want to vest power in people or an institution, such as a "lawmaking authority," not in an inanimate concept like "laws."

English has gotten much more syntactically flexible, even in my lifetime. But also more verbose and literal.

[Michael P]

I could also think of it as you making things up to defend an ever-shrinking patch of what you still think is defensible logic, but the rest of us recognize as motivated reasoning.

[Randal]

That would be more convincing if I weren’t the one on the side of everybody who as ever existed up until like five years ago.

Yours is the novel position, and it’s obviously motivated reasoning. Suddenly, circa 2020, a right-wing motive pops up and lo! We should be interpreting the Constitution in this whole new way!

And it’s the most despicable of motives: undermine the will of the people via a federal power-grab. Gross! It doesn’t even align with classic right-wing values, it’s a totally opportunistic power play based on current voting patterns and demographics. (Which, on second thought, it totally aligns with right-wing values.)

[Float Rider]

Nobody noticed the Constitution required states to permit abortion before 1972. Nobody noticed it required states to license same-sex marriage until it did. Lots of things have gone unnoticed until 5 Supremes sing the right notes.

[David Nieporent]

Nobody claims Roe was an originalist decision, though, so that's a bad analogy. The ISL people are claiming the mantle of originalism, withou any historical evidence to support it.

[Lee Moore]

For nearly two centuries state legislatures made laws forbidding abortions, and then hey presto, the courts found that these laws were unconstitutional. Then fifty years later the Supreme Court found that, actually, they weren't.

Courts sometimes take a new view of old questions.

Rather than huffing and puffing like an old Duke about how we've always done it this way, a good rule for deciding whether a court would be right to read a rule in a new way, would be to read the effing rule and see if it justifies the old practice.

[David Nieporent]

Ah, yes, the old "Just Read the Rule" method of interpreting ambiguous text.

[Michael P]

Better than the "you clingers are always wrong" rule that you people advocate.

[Randal]

We wish you weren't! That's on you!

Anyway that's what happens when you're on team "own the libs" -- literally, your defining principle is to be contrary... that is, always wrong.

[Michael P]

Identifying as a liberal doesn't make you one, just like asserting an ambiguity doesn't create one.

[David Nieporent]

Um, Steve Calabresi is a co-founder of the Federalist Society. I am a libertarian. Who are these "you people" to whom you refer?

[CJColucci]

I assume that Congress can constitutionally assign a job to a state legislature, but Congress is not the source of the powers it has to do the assigned job. It cannot give state legislatures powers that, under state law, they do not have or override state-law limits on state legislatures’ powers. The powers of a state legislature come from the constitution of the state. When a state legislature takes up its congressional assignment, it must do it with the powers, and within the limits, created by state law.

[rloquitur]

but the Congress may at any time by Law make or alter such Regulations,

Does the use of "by law" here import the Prez veto power, whereas in other places it would not?

[Lee Moore]

The President's power to veto applies to anything the Congress does whether it's legislation or any other kind of joint resolution or action (except adjournment)

It does not apply to action by a single chamber though - eg the Senate approving a treaty or a judge.

[JasonT20]

The President has no role whatsoever in sending constitutional amendments to the states for ratification. Congress does that entirely on its own. You might counter about how that takes the same 2/3 majority that can override a veto, making the President redundant anyway. So, maybe they thought that it wasn't necessary to even mention the President in that process.

But that shows us something important. Congress can only act on its own without checks from the President when supermajorities are required. Even the Senate's ratification of treaties requires two-thirds majority, as does conviction and removal after impeachment. It doesn't make any sense to me to think that those drafting the Constitution would have wanted state legislatures to have unchecked ability to regulate elections. (Oh, Congress can set its own rules to supplant those, but not just Congress, since it is checked by veto power. See how this works?)

The Constitution only gives any legislative body unchecked ability to set its own rules for functioning or requires large supermajorities to act alone. Separation of powers and checks and balances are not words found in the text of the Constitution, but they are absolutely present and essential principles found throughout the document. It is absurd to think that the Constitution would give a state legislature unilateral power over something as critical to maintaining rights and liberty as elections.

[Lee Moore]

The President has no role whatsoever in sending constitutional amendments to the states for ratification. Congress does that entirely on its own.

I know that is the practice, and I can see a textual argument for it from the plethora of "shall"s in Article 5. But is there an actual case confirming it ?

But that shows us something important. Congress can only act on its own without checks from the President when supermajorities are required.

That seems to be correct as a matter of the text, but I think you are mistaken to elevate it to the level of a principle.

Even the Senate’s ratification of treaties requires two-thirds majority, as does conviction and removal after impeachment.

These are acts of a single chamber, not acts of Congress.

It doesn’t make any sense to me to think that those drafting the Constitution would have wanted state legislatures to have unchecked ability to regulate elections.

This is an appeal to policy, which is worth squat. Stick to the text.

(Oh, Congress can set its own rules to supplant those, but not just Congress, since it is checked by veto power. See how this works?)

See the very first comment above (one of mine) which explains why the Presidential veto power fails, in this case, as a good analogy for a Governor's veto power.

[David Nieporent]

It is absurd to think that the Constitution would give a state legislature unilateral power over something as critical to maintaining rights and liberty as elections.

I don't think it's absurd — but I also don't think there's any reason to believe that they wanted to do that.

[Lee Moore]

Apart from the words they used.

"by the legislature thereof"

not

"by the usual legislative procedures thereof"

not

"by the usual legislative procedures thereof, and subject to such constraints as the state constitution may provide"

not

"by the legislature thereof, with the Governor's consent"

I agree though. If you competely ignore the actual text, it's hard to tease out what it means.

The whole pantomime is based on pretending that the obvious literal meaning of the words which even Calebresi accepts must be the wrong answer because it is not the preferred answer.

It's the traditional lawyerish search for imaginary ambiguity.

[Randal]

Have you read the Constitution? It's on the terse side.

[Michael P]

"I wish there were more words that change the meaning" is never a good approach to interpretation.

[Randal]

I don't think the meaning needs changing. I don't think it's ambiguous. I get it. It makes sense as it is.

I think you guys are intentionally misreading it in a dumb way in order to get the policy you want. (Which, let's be honest, "policy" is generous. It's just, as always, an "own the libs" play. Why else would this have been a non-issue for over 230 years, then suddenly it's this big constitutional crisis? Own the libs.)

[Lee Moore]

As Michael P shows above, you can make Article 1 Section 4 say what you would prefer it to say simply by substituting the word "laws" for the word "legislature"

If brevity is King, then if they meant "laws" why did they waste seven extra letters saying "legislature" ?

[Sarcastr0]

Because they didn't peer ahead in time and see you becoming confused.

[Lee Moore]

“The words “Congress” and “State Legislature” in Articles I, II, and IV refer to national and state lawmaking processes and not to particular institutions.”   

This is where the handwaving reaches its apogee. The weakness in the argument that in the federal constitution “Congress” does not mean the particular institutions – Senate and House of Representatives – but instead means “the national lawmaking process” runs quickly up against a fence it cannot clear :

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

So Congress is DEFINED as a Senate and House of Representatives in the first sentence of the constiution.

Back on Earth,

1. Congress is the Senate and House of Representatives. Period.

2. Congress has such legislative power over such matters as the federal constitution allows it.

3. The President has the power to veto Congressional attempts to legislate (subject to the possibility of override). This is not a “legislative” power, it is the power to prevent the Congress from exercising its exclusive legislative power.

4. The Supreme Court has the power to opine on whether and to what extent, the federal constitution does indeed allow any particular Congressional effort This is not a “legislative” power either.

[Randal]

You’re confusing “legistlative power” and “lawmaking process” but that’s fine.

I happen to agree with your 1 thru 4 as written. But a lot of people who seem more like your kind of people than my kind of people disagree with your #3 and consider the veto power to be a legislative power. It appears in Article I, not Article II. This is Gorsuch, yesterday:

JUSTICE GORSUCH: Right… on the veto question, just narrowly on the veto question, you know, Locke, Montesquieu, The Federalist Papers treat that as a legislative power and — and a sharing of the legislative power. And it’s in Article I, which kind of suggests it’s — the founders considered it a legislative power.

[Lee Moore]

You’re confusing “legistlative power” and “lawmaking process” but that’s fine.

No, I'm not. I include the first nine words of Article 1 for completeness, not to argue anything. The point is the next 16 words :

a Congress of the United States, which shall consist of a Senate and House of Representatives.

which are an explicit refutation of Calabresi's absurd claim that in Article 1 etc, the word "Congress" refers to "national... lawmaking processes and not to particular institutions”   

That Calabresi is willing to look past an explicit definition of Congress as a Senate and House of Representatives, in the very first sentence of the Constitution. demonstrates that he's just gaslighting.

[Randal]

Oh, you guys really need to please stop using that word! Or please don't stop, I find it very funny. But do stop, for your own sakes.

[Bob from Ohio]

"people of a state voting directly on an initiative or referendum" is not a "legislature" under any definition of the word

[rloquitur]

Yeah, see Scalia's dissent in the "judges as representatives" VRA case.

[bernard11]

In Rucho, Roberts, joined by the other four (pre-Barrett) conservatives, wrote about various remedies for gerrymandering that did not rquire the involvement of the Federal Courts.

The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution.

Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.

numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3.

IOW, the court said there are lots of alternative state-level solutions.

Are they going to turn around and say, "We were just kidding?"

[rloquitur]

The issue wasn't raised.

[bernard11]

But it was addressed. And we got all this assurance that,

"of course, the legislature doesn't have a free hand in gerrymandering. There are state supreme courts, etc."

Abandoning that now would hardly be a good look for the court.

[EscherEnigma]

You think the current SCOTUS cares about a "good look"?

[Kazinski]

The fact that the legislature does not have a free hand in gerrymandering doesn't mean the courts do.

[Randal]

That would be an odd constitution indeed! Tell me when a state does an amendment that grants the courts the ability to do partisan gerrymanders but prevents the legislature from enacting one.

[Lee Moore]

Actually that’s precisely what the Pennsylvania Supreme Court did. They interpreted the Pennsylvania Constitution’s requirement for “fair” elections as requiring a whole list of conditions required to be met to achieve fairness, and therefore threw out the legislatiure’s districts as unfair, because the legislature’s districts favored the Republicans. Then they did the redistricting themselves ……ignoring several of the conditons that they had just found were required for fairness. Strangely, ignoring the conditons specified favored the Democrats 🙂

It’s great to be a judge.

[Stephen Lathrop]

Are they going to turn around and say, “We were just kidding?”

That is what I have been expecting ever since. This right wing majority is about justice and power. Justice where the case will have no direct effect on election outcomes. Power where Republicans are at risk to lose an election.

I did not foresee the extent of the Court's efforts to aggrandize its own powers, however. There, it has gone beyond even the expansive limits of my cynical imagination.

[Mike Hansberry]

The author does not touch the argument that state court remedies in place of legislative acts cannot be squared with the text. It is one thing for a state supreme court to strike down an act of the legislature regarding elections. It is another for a state supreme court to create rules for an election. If the most recent legislation does not meet state constitutional muster, then the previous act of the legislature should remain in effect.

Could a president, acting alone, admit states into the union under some non-literal interpretation of Article IV, Section 3's reference to just the Congress?

[David Nieporent]

What if state law — enacted by the state legislature — gives state courts that power?

[Kazinski]

That might be struck by a non-delegation doctrine.

[Magister]

Who would strike it? The state courts, indicating that they have some power over things the state legislature does? The legislature changing its mind because they didn't like the results of what they first set up?

The answer is probably "the conservative federal Supreme Court", which is mostly in the business of protecting Republican power.

[Kazinski]

That might be one take.

But there is a good argument for preventing State Supreme courts from not only striking the legislative remedy, but then substituting their own.

Allowing a body to not only invalidate the acts of another body, but then without any checks and balances legislate their own is profoundly undemocratic. Once the NC Supreme Court acts where is the review, other than the Supreme Court.

As reviled as the Dobbs decision was, the Supreme Court reversed itself in invalidating an unreviewable (except by itself) judicial legislative act. But they didn't try to substitute their own solution, they left it to the democratic process to craft a more workable regime.

[David Nieporent]

If the state has one. Just because the federal constitution might be interpreted as having one (though of course that's not explicitly in there) doesn't mean a state must.

[Michael P]

Separation of powers is a thing. It's explicit in the North Carolina State Constitution:

Sec. 6. Separation of powers.

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

[Sarcastr0]

You've wandered well away from the federal constitutional issue you claim to care about.

[Brett Bellmore]

Well, if the federal Constitution says that it's a power of the state legislature, and the state constitution says that all legislative power is exclusively the legislature's, they're kind of in agreement on the question, aren't they?

[Sarcastr0]

A state non-delegation doctrine via the federal constitution that still requires federal courts to interpret state constitutions is like the nightmare version of federal courts.

[David Nieporent]

Separation of powers and non-delegation are different things!

[MonitorsMost]

This seems correct to me. Adoption of a state constitution is inherently a legislative action. Whatever powers the legislature has ceded to other branches is part of the legislative process.

[Kazinski]

Including giving the Governor Plenipotentiary power to make laws, issue judgements, and set tax rates?

That argument quickly disintegrates upon examination (except during Covid of course).

[Sarcastr0]

What clause of the US Constitution are you citing for this appeal to incredulity?
Are you arguing the Guarantee clause gets some teeth? Seems like you're just kinda throwing stuff out there...

[ReaderY]

Congressional representatives are elected by the people with state legislatures merely regulating them. I think a state constitution can cabin a state legislature’s regulatory authority by things like a prohibition on gerrymandering, a requirement not to split counties where possible, and numerous other provisions that have been part of state constitutions for some time. I am skeptical of the Supreme Court’s prior conclusion, which Professor Lindgren is endorsing, that a state constitution can assign the entire power to regulate elections to some other body such as a commission, especially an unelected one.

The appointment power for presidential electors is different. There, the legislature has the entire decision power and runs the entire show. It has no obligation to let ordinary citizens have any say in the matter; any popular votes exist solely by legislative discretion. Moreover, it is well within the power of a state legislature to provide for a strictly advisory popular vote concerning the appointment of presidential electors, and then make the actual appointment decision itself, deciding indepedently whether to accept or even consider the results of the advisory vote or not. think this legislative power can also be subject to constitutional constraints. A legisture can’t, for example, let only white citizens vote if the question is put to popular vote, advisory or not, and if it calls for an advisory vote, it can be required to let the citizenry know the advisory status of the vote. Many other things. But I don’t think a state constitution can take away a state legislature’s power to appoint the electors itself and abolish the popular vote or make it purely advisory if it wants.

I think the argument about vetos proves too much. Governor vetos can be part of a state’s legislature precisely because presidential vetos are part of the federal one. Similarly, state constitutions can cabin legislative authority at the margins because the federal constitution cabins Congress’ authority.

But popular initiatives and commissions whose decisions are unreviewable by Congress are not part of the Federal constitution, so the involvement of the President in vetos simply doesn’t support Professor Lindgren’s sweeping proposition that a state’s “legislature” is anything a state’s constitution says it is, and a state’s traditional legislature can have its appointment power removed entirely.

[F.D. Wolf]

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.

And, yet, when the Constitution uses the word “legislature” in Article V, dealing with the amendment process, it means ONLY the legislature, or, at least, so said a unanimous Supreme Court. Hawke v. Smith, 253 U.S. 221 (1920). The Ohio state constitution provided that the people of the state, through a popular referendum, could override the Assembly’s vote to ratify an amendment to the federal Constitution, which is exactly what they did after the Assembly ratified the Eighteenth Amendment (Prohibition). The Court said nope, legislature means legislature. It would be curious that the drafters of the Constitution would assign one meaning to “legislature” in Articles I and II, but a different one in Article V.

And speaking of Article I, it originally provided that, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.” Does the word “legislature” there mean “the lawmaking process”? If so, it would seem the decades-long movement for the direct election of Senators, culminating in the Seventeenth Amendment, was a complete waste of time. Any state could have merely exercised its “lawmaking process” to provide for the direct election of its senators. Curiously, it never occurred to anyone to try this. Apparently, no one was aware that “legislature” really just meant “the lawmaking process”.

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.

I am sympathetic to the sentiment, but I’m afraid that ship sailed 60 years ago with Baker v. Carr.

[Kazinski]

That also impacts the argument that the legislature delegated their authority to craft legislative districts to the judiciary.

I think a scheme, crafted by the legislature, with an independent commission or panel of judges to draw the boundaries could work, but I think the plan would need a legislative up or down vote to be final.

[F.D. Wolf]

Yes, it does. As you are certainly aware, in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), in a 5-4 decision, the Court upheld the legislature's delegation of congressional redistricting to an independent commission. The majority consisted of Justices Ginsberg, Kennedy, Breyer, Kagan, and Sotomayor. The dissenters were Chief Justice Roberts and Justices Scalia, Thomas, and Alito. It is reasonable to assume the membership of the current Court would probably reach a different conclusion.

[Lee Moore]

I think the Arizona redistricting commission was created by a state constitutional amendment created by popular vote, not by the Arizona legislature.

[F.D. Wolf]

Yes, you are of course correct. I only meant that in the sense that the constitution and its provisions (such as providing for popular referenda) are, ultimately, legislative creations.

[ReaderY]

I recognize Professor Lindgren is simply taking this case as a given and extending it to its logical maximal extent. And from that point of view, his position is quite reasonable. But I think the case was wrongly decided.

I disagree with the “independent state legislature” theory to the extent it argues that state constitutions can never impose rules a state legislature has to comply with, and state courts have no power to say what state law is or supervise the implementation of elections. But I also disagree with the opposite theory, the idea a state can assign these powers to any body it cares to and “legislature” refers to a process, not a specific body. In the context of these federal constitutional provisions, a state’s legislature is its traditional legislature, the body (possibly with a governor veto), not a process.

I think the case was wrongly decided the day it came out and should be reversed.

[David Nieporent]

Any state could have merely exercised its “lawmaking process” to provide for the direct election of its senators. Curiously, it never occurred to anyone to try this.

I mean, they did. Indeed, most states had direct elections of senators before the 17th amendment. The amendment was designed to remove the power of state legislatures more than it was to grant the rights to the public.

[F.D. Wolf]

Well, sort of. States might have "elections" for U.S. Senators, but, ultimately the legislature still had to vote, and though they were not strictly bound legally to accept the people's choice, they, cognizant of their own futures, typically would.

The first state to adopt such a system was Oregon. The law required anyone seeking election to the state legislature to sign a statement in which he had two options. Option A was a pledge to vote for the choice of the people. Option B was a pledge to strongly consider their choice, but to use his own best judgment. You can guess which option most candidates chose, and most kept their pledges. This came to be known as the "Oregon system" and was copied by some states.

[Brett Bellmore]

I typically think that Professor Hasen has gone off the deep end since 2016, but this is actually a fairly level-headed analysis, and his "bad but not awful" is not too far from my own position.

It's certainly possible for a state constitution to assign some legislative powers to the executive and/or the judiciary, or give them review. I think saying the legislature can do whatever it pleases on this topic, regardless of the state constitution, goes way too far.

But, what are you to do when the legislature itself has made rules, pursuant to the state constitution, and one of the other branches just seizes the power to remake the rules itself based on some off the wall theory? Are we really obligated to let a state judiciary do that, or endorse the executive doing that, for federal elections?

No! Such decisions has to be subject to review by the federal judiciary, in case the state judiciary just decides to be flat out unreasonable in its exercise of the power to 'interpret' laws made by others.

[Randal]

Everybody pretty much agreed with that in the argument yesterday. I don't think a single person, advocate or justice, was arguing for no federal review whatsoever. The common starting point was Rehnquist's Bush v Gore concurrence.

[Brett Bellmore]

Note that that's Hasen's "bad but not awful"; He really would argue for no federal review whatsoever, give the state courts the last word. More of a state judicial supremacist than a legislative supremacist.

Whether he'd continue to think that if a state judiciary came to a conclusion he really disliked, I don't know. He hasn't yet been tested on that, by a case where he likes the plain language of the law better than what the courts did with it.

[CFred]

Am I missing something or could SCOTUS just take the wording literally? “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”

True that the state legislature has sole authority over the Times: from 7AM-9PM on the 1st Tuesday in November (or whenever) Places: polling places as determined by county Board of Elections, only public buildings, etc Manner: in person, with ID, using paper ballots

The gerrymandering, suppression, substitute electors concerns go away

[Lee Moore]

I think there was a case recently in which a (Trump appointed) federal judge concluded, much as you do, that the content of "manner" was rather thin and didn't cover a whole pile of things that are traditionally thought to be within it - such as redistricting etc.

I don't think that is the right answer - there's no good textual reason to say that the drawing of the districts in which the elections take place is other than part of the "manner" of holding elections.

But it's worth noting that the consequences of accepting a very narrow view of "manner" would be quite big. This is because Congress's power to make federal election regulations is described thus :

"but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators"

Spot the "such regulations" ? ie the scope of Congress's powers to make "manner" regulations can be no wider than the state legislature's. If redistricting is not part of the "manner" for state legislatures, it can't be part of "such regulations" for Congress.

So a narrow "manner" would achieve the result desired by anti-ISL folk - it would throw most federal election rule making out of the federal constitution entirely, leaving it to the state's ordinary legislative procedures, allowing state constitutions and state supreme courts, and state Governors to play their usual role.

States would still by constrained by other bits of the federal constitution such as the 15th Amendment, but a narrow "manner' would eliminate 99% of the federal Congress's power to impose federal election rules via Article 1.4.

[Lee Moore]

Calabresi : This is also a theory that former President Donald Trump falsely claimed meant that .....

Stylistically somewhat teenagerish. Law Professors would be wiser to describe legal theories they disagree with, even strongly, as "incorrect", "ilogical", "mistaken", or even "nonsense."

Such considerations should not, of course, restrict the full emotional repertoire of commenters here.