Cross-posted from Justia's Verdict.

Now that the 2012 election is in the rear-view mirror and the 2016 election is still somewhat distant on the horizon, this is an appropriate time to return to the question of presidential election reform.  As I have written about many times (including here) on this and other websites, and in academic journals, one important and prominent reform effort, known as the National Popular Vote (NPV) Compact, seeks to move the country in the direction of making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide.

Some Key Background of the NPV Concept

The essential idea (elaborated by me, my brother Akhil Amar and, independently also by Professor Robert Bennett over a decade ago) is to get various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would generally mean that the winner of the Presidential contest would be the person who had won the largest number of votes from individual voters nationwide.  In that way, the plan would ensure that every voter-regardless of the state in which she lives-would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college-that is, states whose electoral college allotments collectively total 270 or more-ratify it.

To date, eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia-comprising 132 electoral college votes altogether (almost half the needed 270 votes)-have adopted the plan.

Various policy arguments have been raised against the NPV idea, and in favor of the status quo.  More importantly for present purposes, however, in the past few years some analysts have raised constitutional objections to the NPV plan.  In the balance of this column and in a subsequent column, I will address some of these arguments.  Many of the constitutional criticisms that have been advanced relate to the compact aspect of the NPV plan, and focus on whether or not Congress would have to approve the coordinated interstate action before the current NPV plan being adopted were implemented.  I have touched on some of these criticisms before, and will return to others in a later writing.

A Challenge to the Ability of Any State, Whether Acting Alone or in Concert with Others, to Allocate Its Electors With an Eye to the National Electorate

But in the space below, I respond to a different line of constitutional challenge laid out by Willamette Law Professor Norman Williams, who wrote in a 2012 law review article that, putting aside the compact aspect of the NPV plan, it is unconstitutional for a state to pick its electors based on the national (as opposed to in-state) popularity of a candidate because such a decision by a state would violate Article II of the Constitution-the provision that tells each state to appoint its electors "in such manner as the legislature thereof may direct"-and the understanding of Article II embraced by the constitutional "framers."

Under Professor Williams' reading of the Constitution, even a state that were not coordinating with other states would be prevented, under Article II, from picking its electors with an eye towards the national vote tally.  (In an earlier law review article, to which I wrote an academic journal response, Professor Williams had suggested, completely unconvincingly to me, that a state that based its electoral college decision on the national electorate would be violating the Equal Protection Clause of the Fourteenth Amendment; this newer article relies instead on Article II and the expectations of the Framers in 1787.)

Professor Williams observes that his reading of Article II "may strike many as counterintuitive."  That may be true, but that is not necessarily fatal from a constitutional viewpoint.  To my mind, the problem with Professor Williams's line of argument is not that is it is not intuitive, but rather that it is not strong.

There are many parts and subparts of Professor Williams's claim, but his thesis can be distilled into two large pieces, each of which I treat in turn.

The Novelty of a State's Looking to the National Electorate

One thing Professor Williams points out is that, until now, no state has tried to pick its electors based upon national voter popularity.  That is true, but it is also largely beside the point.  Sometimes a device has never been tried because it is unconstitutional, but as even Chief Justice Roberts in the Obamacare ruling made clear, novelty is not itself a constitutional infirmity, because "there is a first time for everything."  Indeed, most of the aspects of the presidential election process we take for granted today would have been novel for much of America's history.  The rise of political parties; the near-automatic access that the major parties have to put their candidates on presidential ballots; the development of the "short-form" ballot - by which voters register preferences for actual Presidential candidates, rather than for individual presidential electors (the folks who make up the so-called electoral college); the requirement of many states that electors take pledges to support particular candidates, etc. were all unheard of for generations after the founding.  And yet no one thinks that any of these devices is unconstitutional simply because it was new when introduced.

Moreover, the idea that states would want to look to the national electorate at this point in history in particular is not hard to explain.  The 2000 election was the first modern presidential contest (after the country has internalized the one-person, one-vote ideal of the 1960s redistricting cases) in which the successful president candidate obtained fewer votes nationwide than his opponent.  Moreover, the country is far less divided today geographically (even as it remains sharply divided by party) than it was for most of the nation's history.  Businesses, families, and culture are much more dispersed throughout the United States.  People move around within the United States (and thus may want their vote to count equally wherever they move) much more today than in the Eighteenth, Nineteenth and early Twentieth centuries.  Political scientists have documented (and, indeed, quantified) much more carefully today than ever before how current presidential elections tend to favor a few "swing" states, such that non-swing states that are largely ignored in the presidential election have selfish reasons today for moving, either individually or by coordinated action, to a national popular vote scheme.  And so forth.  For these reasons, there is nothing constitutionally suspicious about new ideas and innovations in the voting realm generally, or about the timing or origins of this one idea in particular.

The Rejection of a Direct National Election in 1787, the Fear of Majoritarianism Embraced by the Framers, and the Problem of Who the Relevant Framers Are

The other big component of Professor Williams's argument revolves around the decision in the Philadelphia Convention, at which the Constitution (including Article II) was drafted, to reject a proposal by Connecticut delegate Gouverneur Morris that the President be elected directly by the citizens of the United States.  Because this proposal was voted down, and based on a criticism of the proposal by delegate Charles Pinckney on the ground that it would unduly favor the populous states, Professor Williams argues that the framers conceived of Article II as prohibiting any system that overly focuses on or empowers a national majority.

There are numerous problems with this argument, none of which Professor Williams adequately anticipates or addresses.  First, the evidence he advances for this "expectation" on the part of the "framers" is very thin.  He does not cite any specific discussion in the Philadelphia Convention of the limits on state legislatures to pick electors on whatever basis they choose, and analyzes no evidence from the ratification debates in the states that bears in a specific or even general way on the question.  The "framers" were not simply the men who sat in Philadelphia who had conversations to which no one else was privy; the framers who count more in constitutional interpretation are the folks who read and understood the words that emerged from Philadelphia and decided to make them the "law of the land."

And the words of Article II on their face give states broad latitude to pick any kind of electors they want.  Surely that would have been the ordinary meaning attached to the phrase "in such manner as the legislature thereof may direct."  Under any variant of Scalian textualism/originalism, these words-absent some evidence that persons outside Philadelphia would have interpreted them differently-foreclose Professor Williams's argument.  (To be sure, subsequent amendments to the Constitution, like the First and Fourteenth Amendments, might limit the kinds of criteria that states may take into account in picking electors-prohibiting, e.g., racial and religious discrimination in elector selection-but these limits do not come from Article II, the provision on which Professor Williams relies.)

The Multiple Explanations for, and Consequences of, the Rejection of a Direct National Election at the Founding

Moreover, even focusing on the Philadelphia Convention alone, Professor Williams himself cites to other reasons-besides a deep-seated rejection of national majoritarianism-that explain some delegates' aversions to Morris's plan.  Some of those in Philadelphia rejected direct election because the voters (absent modern communications, transportation, or the advent of national parties) would lack adequate information on which to base their votes.  Other delegates expressed the related fear that voters would, lacking adequate information, simply vote for local favorite-son candidates.  Yet others voiced their concern not in terms of populous versus small states, but rather in terms of Northern versus Southern states; direct election would have enabled the North, with more voters, to abolish slavery, which would have been unacceptable to Southern states and have lead them to reject constitutional ratification.

None of these three objections (each of which or all of which might account for the rejection of Morris's proposal) is relevant today in the context of the NPV plan:  Voters today all across the country have adequate information to pick a President; a state basing its Electoral College selection decisions on the nationwide electorate is not favoring local, native-son, candidates but instead is casting its gaze at a non-parochial level; and (thankfully) slavery is no longer a salient legal or political feature of America.

And even if Professor Williams could show (and he doesn't) that the biggest force shaping Article II was distrust of majoritarianism, that would still not provide much support his ultimate conclusion.  Article II's drafters did reject imposing a nationally majoritarian regime on the states, but that is a far cry from saying they foreclosed  such a regime if that is what states (acting individually or collectively) want to do.  There is a parallel here to Article III of the Constitution, which reflects a fear that lower federal courts could end up displacing state courts.  This fear didn't leave the framers to either require or foreclose the creation of lower federal courts, but instead to leave the matter up to Congress.  At most, Article II does not require or foreclose states from looking to the national electorate, but rather leaves the matter up to the states themselves.

What About Other Moves in the Past Centuries Towards Majoritarianism?

Yet another damning counterargument to Professor Williams's thesis is that if NPV is too majoritarian to survive under Article II, why aren't all the other developments in the evolution of modern presidential election mechanics that have occurred over the past two centuries also unconstitutional?  The rise of political parties, the placement of major party nominees on ballots bearing party designations, and the advent of the short-form ballot all moved the country towards a system that facilitates a national popular vote-winner becoming President.  Indeed, by making it less likely that no candidate will lack a majority of electoral college votes on the first ballot, these devices virtually eliminate the prospect of an election being thrown into the House of Representatives, which (because under Article II each state would have one vote in the House) was the most important nonmajoritarian electoral device the framers expected would come into play often.  As a result, all these innovations moved the country away from nonmajoritarianism and in the direction of majoritarianism much more than the NPV plan does, which could be seen as trying merely to narrow an already small window of nonmajoritarianism that remains.

And if Professor Williams's rejoinder to this is that closing the last open slit in a window is qualitatively different (and worse) than moving it from wide open to almost closed, I would note that the NPV idea doesn't close the window entirely, for three reasons:  First, absent coordination, a state's decision to base its electors on the nationwide vote doesn't come close to guaranteeing that the President will be the national vote winner, so an individual state's decision to use the national tally as a basis for picking its electors cannot be said to guarantee a nationally majoritarian outcome.  Second, a state that adopts an NPV stance can always change its mind in subsequent elections, so the system isn't inalterably majoritarian.  And third, since electors in the Electoral College are, strictly speaking, independent and can't be coerced into voting in any particular way-even the way they themselves have pledged-there is no plan, short of constitutional amendment, that would entirely close the window on the possibility of nonmajoritarianism.

Indeed, the essential implausibility of Professor Williams's argument can be seen simply by focusing on the independence of the electors.  Imagine that an elector today from some very closely divided state, under the way things currently work, thought that the nation would erupt into civil war if the person who won the nationwide vote tally were to be denied the presidency.  Couldn't that free-agent elector take into account, under Article II, that specter of war in deciding how to cast his electoral college vote?  And if so, then why can't a state (and its legislature and people) choose to select electors who are inclined to have that mindset?

All of this brings me to a passage in Professor Williams's article that may reflect part of the problem with his approach.  He says that each state's electors must be "accountable to the people of that state" and that the electors must "reflect directly or indirectly the choice of each state's own electorate."  The reality, however, is that NPV complies with this requirement.  The people of those states who have joined NPV have (through their legislature, which is accountable to them) made their choice to focus on national voter popularity when they select their electors.  No one is forcing them to do so; to the contrary, we are respecting their (and no one else's) desires by respecting their commitment to NPV.  (And the problem, in Professor Williams's eyes, cannot be that the legislatures are committing to NPV without the ratification of the voters of NPV states, because Professor Williams would not accept NPV any more readily if states joined it by initiative, rather than through their legislatures. And indeed, Article II's reference to "legislature" may foreclose the initiative device here.)

The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states.  The NPV states aren't delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.

By Chris Elmendorf and Doug Spencer. Cross-posted from the Election Law Blog.

During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?”  Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”

This post offers a preliminary answer to the Chief Justice’s question, using recent data.  Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.

There are essentially three schools of thought about how best to measure racial prejudice using survey questions.  Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.”  Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.”  Still others favor measures of implicit or subconscious bias.  For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.

We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans.  Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100.  On average respondents ranked their own group about 15 points above blacks on each trait.  We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait.  To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean.  Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.[1]

To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced.  But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.

We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.”  The first is based on simple disaggregation of the large NAES dataset (N=19,325).  This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample.  For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion.  We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).

Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:

The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation.  The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).

We wish to emphasize that these are preliminary results only.  Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice).  We will present additional results at the Midwest Political Science Association conference in April.

Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning.  Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”

Elmendorf is Professor of Law at UC Davis.  Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley.  Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.

From Justia's Verdict.

The Supreme Court this week handed down its first (but almost certainly not its last) 5-4 ruling of the Term.  The case, Clapper v. Amnesty International USA, involved a constitutional challenge to a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information gathering with respect to persons outside the United States.  Because the five-member Court majority found that the plaintiffs lacked standing under Article III of the Constitution to mount the challenge, the Court never addressed the validity of Congress’s law.  But the case does, as I explain below, afford some insights into the law of standing, which continues to be an important doctrine with which anyone seeking to a raise constitutional challenge must reckon.

The Background of the Case and the Supreme Court’s Reasoning

In 1978, Congress passed the Foreign Surveillance Intelligence Act (FISA) to allow and to regulate certain electronic surveillance activities conducted by the federal government to gather foreign intelligence.  The statute set up certain procedures and certain tribunals through which the federal government has to go in order to be allowed to monitor and intercept electronic communications involving persons outside the United States.  Congress amended the FISA in 2008, adding to it a “new and independent source of intelligence collection authority, beyond that granted in the original FISA.”  The new authority came with limits, however: (1) the government must still obtain approval from a FISA court; (2) it must avoid targeting persons known to be in the U.S.; and (3) it must comply with the Fourth Amendment.

The day the 2008 amendments were made law, a group of plaintiffs filed suit seeking to block one of the new provisions on the ground that it violates the First Amendment, the Fourth Amendment, and various separation-of-powers principles.  The plaintiffs consist of lawyers, labor organizations, media groups and human rights advocates.  They say that they are injured by the 2008 law because their work requires that they undertake sensitive and sometimes private electronic communications with colleagues and other individuals located outside the United States.  The plaintiffs allege that some of the people with whom they need to communicate will likely be the target of federal intelligence-gathering activities under the FISA amendments, and that, as a result, the plaintiffs’ own communications will be improperly monitored or intercepted.  For this reason, plaintiffs say, the new law impedes their ability to do their work.  Indeed, plaintiffs assert, they have already ceased engaging in certain electronic communications because of a reasonable fear that these communications may be surveilled.

The federal district court ruled that the plaintiffs lacked standing to bring the suit.  The United States Court of Appeals for the Second Circuit reversed the district court, concluding that since the plaintiffs had shown an “objectively reasonable likelihood that their communications will be intercepted at some time in the future,” their claims should be adjudicated on the merits.  But five Justices of the Supreme Court disagreed.

Justice Alito, writing for himself, Chief Justice Roberts, and Justices Scalia, Kennedy and Thomas, observed that, to have standing to sue in federal court under Article III of the Constitution, a plaintiff must suffer suffer a concrete and particularized injury that is “actual or imminent” and “fairly traceable” to the challenged action.  To be “actual or imminent,” the majority said, the injury asserted must be “certainly impending.”  On the facts established, the majority reasoned, this standard was not satisfied, because there was too much uncertainty about whether the new provisions of FISA would ever end up subjecting the plaintiffs and their particular communications to any surveillance.  In particular, Justice Alito’s opinion argued, there was uncertainty as to: (1) whether the feds will ever target any of the particular non-U.S. persons with whom the plaintiffs communicate; (2) if the feds do target persons with whom the plaintiffs communicate, whether the feds will invoke the new FISA provisions (as distinguished from other possible legal bases); (3) whether, if the feds do invoke the new law, the FISA court will give its approval; (4) whether, if FISA court approval is given, the feds will succeed in monitoring or intercepting any communications (no mean feat technologically); and (5) whether, if the government does intercept any communications, the plaintiffs will happen to be parties to those particular communications.

Because of this “highly attenuated chain of possibilities,” said the majority, the plaintiffs’ claim that they will be injured because of the new FISA law is too speculative to afford them standing.  And as to the fact that plaintiffs say that they are already changing their practices today because of their non-paranoid fear of surveillance, the Court responded that such decisions were the choice of the plaintiffs themselves, and that they could not “manufacture” an injury that satisfies standing in circumstances where the government itself has not created an injury that is “certainly impending.”

Justice Breyer’s dissent, joined by Justices Ginsburg, Sotomayor and Kagan, argued that the plaintiffs’ injuries are not speculative given what “commonsense inference and ordinary knowledge of human nature tell us will happen.”  In particular, against the backdrop of the government’s track record, and in light of the fact that the government has the motive and (in light of the 2008 revisions) also the means to surveil the very non-U.S. communication partners with whom the plaintiffs communicate (some of whom are suspected of terrorism), the dissent found a “very high likelihood” that the plaintiffs would suffer injury.  And because the future always contains some uncertainty (such that metaphysical certainty cannot be the standard), a high likelihood of injury should satisfy the “certainly impending” or “imminent” standard.  Justice Breyer also asserted that the Court had, in many earlier cases, found standing to exist where the relevant injury was “far less certain” than it is in the present case.

The Lessons About Standing to Be Gleaned From Clapper

Clapper highlights many aspects of modern standing doctrine.  First, standing can be contentious and standing battles often have an ideological element.  Notice, here, that the Court not only divided five to four, but did so on the conventional “conservative/liberal (or moderate)” fault line.  In general, the Justices who tend to be more conservative in their approach to interpreting other aspects of the Constitution are also more conservative in construing the barriers that Article III imposes for people who wish to challenge government action.  By contrast, the less conservative Justices tend to be more generous when it comes to access to federal courts.  (To be sure, because standing doctrine is somewhat manipulable and can be used by various Justices for various reasons, this conservative-liberal breakdown does not always account for votes on standing.)

Second, Clapper illuminates two distinct but sometimes conflated aspects of the “imminent” injury standard.  Some might be inclined to think terms like “imminent” and “impending” are temporal in nature, and require that the alleged injury must be suffered in the immediate future.  But what is really important in standing is not when the injury will be incurred, but whether it will be incurred at all.  (Remember, for instance, the Affordable Care Act case, in which the challenged individual mandate would not take effect until 2014, and yet standing was not a barrier.)  The temporal dimension is not irrelevant; temporal distance can create more uncertainty about whether the alleged harm will in fact ever come about, because the longer the time between the present moment and the alleged moment of actual injury, the greater the opportunity for circumstances to change in a way that avoids the injury.  But the question ultimately is still how likely the injury is to be incurred, taking into account any time lag.  (For example, the fact that Congress could conceivably have repealed the Affordable Care Act after the 2012 election before the individual mandate kicked in did not incline the Court to deny standing in the summer of 2012.)

Third, a Justice’s assessment of uncertainty depends, as Justice Breyer points out, on how the Justice understands what “commonsense inference and ordinary knowledge of human nature tell us [about what] will happen.”  Predictions (and that’s what we’re talking about here) are always based on how one perceives and understands how the world and the actors in it operate.

Fourth, the predictions required in standing analysis are more complicated when they involve the actions of persons other than the plaintiff and the defendant.  In Clapper, for example, we need to predict not only what kinds of communications the plaintiffs actually plan to undertake and how aggressive the government will be in seeking to monitor them, but we also need to predict how permissive the FISA court will be, and how effective the technology experts will be in any surveillance that is authorized.  The presence of these third parties (the courts and the technology intermediaries) allows the various Justices to come out very differently on the bottom-line question of whether plaintiffs will be affected.

Fifth, standing analysis may tend to play out differently in different subject-matter contexts.  Justice Alito pointed out that the Court has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of political branches in the fields of intelligence gathering and foreign affairs.”  By contrast, many of the cases Justice Breyer adduced to show that standing was found even though there seemed to be some uncertainty about future events involved land-use and environmental effects. (For example, in one decision, standing was found to challenge the planned construction of a nuclear power plant, even though the ultimate completion of the plant and its environmental effects were not certain to occur.)

There may be a number of explanations for why standing analysis generates different results in different settings.  Perhaps the disinclination to find standing in foreign affairs cases reflects a kinship between standing doctrine and so-called “political question” doctrine (in which federal courts affirmatively decide to stay out of certain kinds of disputes, leaving them to the political branches, because judicial resolution would create distinctive problems of institutional usurpation, embarrassment, or confusion.)  Foreign affairs effects (unlike environmental effects) are often invoked in “political question” settings.  Or perhaps the ease with which standing can be obtained in land-use and environmental cases reflects the fact that there is a market value attached to real property.  As a result, we might be able to discern present-day injuries from (even uncertain) future events because the mere non-trivial possibility of those events can be shown to have implications for current property valuations.  There is no market for privacy rights the way there is for land; for that reason, it may be harder to convince a court to step in to protect those rights when the threat to them is serious but subject to meaningful uncertainty.

Sixth, Clapper reminds us that sometimes the Court’s denial of standing means that a particular kind of challenge may never be easily resolved by courts on the merits.  Justice Alito’s opinion repeats a line from an earlier case saying that the fact that if plaintiff lacks standing then no one has standing is not a reason to recognize standing.  And although Justice Alito adds that persons who are prosecuted using information gleaned by the 2008 FISA amendments may be able to challenge those new laws down the road, critics of America’s response to terrorism seem to think that such opportunities to have a court rule on the validity of the surveillance are unlikely to materialize.

Finally, Clapper shows that standing doctrine is very soft, and that the Court’s cases cannot easily be harmonized or lined up on any clear spectrum.  As Justice Breyer concedes, “the Court has recognized that the precise boundaries of [standing doctrine] are matters of ‘degree. . . not discernible by any precise test.’”  What this means is that we can continue to expect the Court to use standing as a device to regulate its docket and reach, or avoid, questions on the merits that it would rather, or rather not, decide.  We may see more of that this Term in the same-sex marriage cases, where the specific standing questions are different, but the flexibility of the standing doctrine is similar.

By Prof. Gabriel "Jack" Chin for ACSblog.

Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder. 

I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

The Court has made similar arguments with respect to the exclusionary rule, which requires the suppression of evidence seized in violation of the Constitution.  The Court noted that before the exclusionary rule, there was no other realistic alternative to judicial suppression. But now that there is judicial suppression, police agencies train their officers not to illegally search and seize.  Therefore, it is implied, perhaps it is time for the exclusionary rule to go, because the police themselves are training their officers to comply with the law.

The flaw in these arguments is that they do not account for the effects of the laws themselves.  If Section 5 works, the Court should expect it to deter improper electoral changes because they will not be precleared, and thus will never go into effect.  Similarly, an effective exclusionary rule should change police training and policy because police leaders have an interest in teaching officers to develop admissible, as opposed to inadmissible, evidence.  Only if legislators and police are invulnerable to incentives and oblivious to outcomes would they stubbornly adhere to tactics long after they are penalized under law.  

That measures designed to bring about change achieve that change says nothing about whether those measures are no longer necessary.  If burglaries decline for ten years after homeowners install good door and window locks, that does not imply that locks have become superfluous.  If speeds on a road decrease after a speed limit is set and posted, that does not imply that speeds will remain low even if the speed limit were removed.  If laws do not change behavior, there is little point in having them.  If laws do change behavior, that does not necessarily mean that the underlying motivations and values which led to the behavior no longer exist.

Accordingly, the question is not simply whether the law worked, or created incentives to which the lawbreakers responded.  One question is whether the law (or other social forces) has changed public attitudes or conditions on the ground to such a degree that the law is unnecessary.  Another is who gets to decide.     

Section 5’s validity might turn on a prediction about politics -- will jurisdictions which once discriminated leap at the first chance to discriminate again, or will they welcome minority voters with open arms?  The continued existence of racially polarized voting and the political utility to Republicans of suppressing the minority vote -- whether out of malice or simple recognition of how they are likely to cast their ballots -- precludes any confident conclusion that eliminating Section 5 would not revive the practices Section 5 was intended to suppress.  But even if the point is debatable, Congress is in a far better position than is the Court to determine facts, political realities and public attitudes relevant to a prediction about what would happen if Section 5 disappeared.   For this reason, and many others, the Court should defer to the political judgments of the political branches and leave Section 5 as it is.

Cross-posted from SCOTUSblog.

In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.  Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.

The petitioner in the case, Roselva Chaidez, entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977.  In connection with an automobile insurance fraud scam in which she had received less than two thousand dollars, she – on advice of her attorney – had pleaded guilty to two counts of mail fraud and was sentenced to probation and to pay restitution.  Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.  In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her.  Through a writ of coram nobis, Chaidez sought to set aside her conviction.  While the petition was pending, the Court issued its decision in Padilla v. Kentucky.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.  On Wednesday the Supreme Court agreed.

At the outset, the Court observed that Teague v. Lane “makes the retroactivity of our criminal procedures decisions turn on whether they are novel.”  (emphasis added).  The Court notes that “garden-variety applications of the test in Strickland v. Washington (1984), for assessing claims of ineffective assistance of counsel do not produce new rules.”  However, the decision in Padilla v. Kentucky, in the Court’s view, “did something more” than that.  Before Padilla, the state and lower federal courts almost unanimously concluded that the Sixth Amendment does not require attorneys to advise their clients of a conviction’s collateral consequences, including possible removal from the country.  Padilla rejected that rule.  No precedent dictated the answer.  “Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been – in fact, was not – ‘apparent to all reasonable jurists’ prior to our decision. Padilla thus announced a ‘new rule.’”

In the last footnote of the opinion, the majority declined to address two arguments that the Court deemed were not properly raised in the lower courts – “that Teague’s bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when he makes a claim of ineffective assistance.”  These issues may well reappear before the Supreme Court in the near future.

Justice Thomas, who dissented in Padilla, concurred in the judgment, still believing that the case was wrongly decided and, in any event, should not apply to Chaidez’s case.

Justice Sotomayor, joined by Justice Ginsburg, dissented.  She reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule of Strickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”

Chaidez is the latest application of the Teague v. Lane retroactivity test.  By most accounts, Padilla represented a significant change in the law.  Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule.  A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence.  The Court understood this to be a run-of-the mill application of the retroactivity principles of Teague v. Lane, with the junior Justice assigned the decision.  Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010.  The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old.  Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States.   Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens.   Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

This op-ed appeared in Sunday's Sacramento Bee.

A rational national discussion about immigration reform has been a long time coming. Immigration has proved to be a contentious issue in the United States and historically has brought out some of the worst in the American people.

In the years leading up to the 2012 election, harsh immigration enforcement-only rhetoric from the Republican Party alienated Latino voters, who overwhelmingly supported President Barack Obama, even though his administration in one term deported more people than any administration in U.S. history. The growing clout of Latino voters has made clear the political writing on the wall. Within days of the inauguration, both the president and a bipartisan group of senators sought to end the immigration reform stalemate.

The president and the senators agree on the basics for reform: more enforcement; improvement of the legal avenues for immigration so as to prevent the emergence of a "new" undocumented population after the current one is legalized; and a legalization program for undocumented immigrants.

In one of few areas of agreement, Obama's State of the Union address and Sen. Marco Rubio's Republican response agreed on this tripartite approach to immigration reform.

If we hope to pass a reform measure in the coming months, we will need to discuss immigration reform clearly, soberly and carefully, and consider what is best for the nation, as well as what Congress as a practical matter can pass.

All of us should strive to avoid knee-jerk reactions – pro and con – and think hard about the problems, concerns and realities before the nation. Roughly 11 million undocumented immigrants continue to live and work in the United States. If we want to pass meaningful immigration reform, we must stop invoking debate-stopping talismans like "what part of illegal don't you understand?" and "you want open borders," or accusing opponents of reform as "racists."

Despite years of failure in enacting reform, there is every reason to be cautiously optimistic this time around – at least if the nation's leaders are willing to address the real issues and make compromises.

More Enforcement

The most significant of the enforcement proposals calls for a computer database that allows employers to quickly check the immigration status of workers, which in turn would allow the U.S. government to better police the ban on the employment of undocumented workers.

To this point in time, the federal government has failed to construct a database that has an error rate sufficiently low to withstand litigation. While Congress can make coming up with such a system an imperative, waiting for it to be perfected before the other parts of immigration reform kick in would be mistaken – and a likely deal-breaker. Millions of undocumented immigrants have been waiting many years for a path to legalization; their supporters almost certainly will not agree to make them wait many more years.

Moreover, critics, especially those who think that the president has already gone overboard on immigration enforcement, will say that spending even more money on it is wasteful. The best evidence is that the lack of jobs caused by the Great Recession, not more enforcement, has resulted in the reduction in the undocumented population from about 12 million in 2010 to the current 11 million.

Like it or not, increased enforcement measures are popular with the public and likely will be part of any serious reform bill. The question is whether more enforcement will somehow hold hostage the other two significant components of immigration reform.

Legal Immigration

One of the factors contributing to the growth of an undocumented population has been the lack of legal avenues for workers to lawfully come to the United States. This should not be surprising. The omnibus federal immigration law, the Immigration & Nationality Act of 1952, was forged at the height of the Cold War with the intent of restricting immigration and, by most accounts, needs a massive overhaul to address the nation's 21st-century economic needs for workers.

Lacking avenues to lawfully come to the United States, many immigrants who want nothing more than to work will likely continue to join the ranks of undocumented immigrants. Both the president and the senators agree on the need for the nation to attract and admit high-skilled workers and retain foreign Ph.D.s, especially in the sciences, graduating from American universities. The senators also recognize the need for legal avenues to ensure the migration of low-skilled workers who the economy relies upon, especially in agriculture.

One feature of U.S. immigration law has inadvertently created strong incentives for undocumented immigration. The "per country ceiling" generally limits immigration from any single country to roughly 75,000 immigrants a year. The result is that some very long lines – years if not decades – exist for immigrants in certain visa categories from high immigration nations, such as Mexico, India, China and the Philippines, to lawfully come to the United States.

Would-be immigrants in unrealistically long lines may not wait to rejoin family members. They may enter the country without proper documentation, or overstay their visas. In its reform efforts, Congress must consider elimination of the backlogs, which would require a significant number of immigrants to be admitted in the coming years.

Legalization

By far, the aspect of comprehensive immigration reform that is likely to be the most controversial is a legalization program for undocumented immigrants. Any such proposal brings forth vehement attacks on a much-maligned "amnesty" for lawbreakers. But the lack of a path to legalization is a deal-breaker for the advocates of immigrants.

Recognizing the political realities, as well as the fact that it simply is not possible or just to deport 11 million undocumented immigrants, both the president and senators would require an undocumented immigrant to apply for legalization, pay a substantial fine and any back taxes, know English, and pass a background check. Criminals would be deported, not legalized.

The bipartisan group of senators would require a finding that the border has been secured before any path to legalization is implemented. The big question is what is necessary to trigger that finding and just how long it will be before undocumented immigrants in fact would be legalized. Further delay of legalization is unacceptable to immigrant rights advocates. Millions of people have been waiting for legalization for many years. Some reformers will reasonably contend that the Obama administration's aggressive enforcement measures and removal campaigns are sufficient to allow for immediate implementation of a legalization program.

To further complicate matters, both the president's and the senators' plans would require applicants for earned legalization to get behind anyone already in line. It makes no sense, however, to impose this requirement on undocumented immigrants, many of whom had no line to wait in for lawfully coming to work in the United States. Given that the lines already are very long for some prospective immigrants, putting undocumented immigrants at the end of the line could indefinitely delay their legalization. The only sensible solution to prevent undue delay is for Congress to eliminate the backlogs and legalize the applicants now.

The Upcoming Debate

The nation awaits a full-blown bill implementing the agreed upon reform principles. When a bill is introduced, expect lots of fireworks.

Some immigrant rights advocates will oppose more enforcement, demand greater reform to the current immigration laws, such as improved asylum provisions, recognition of same-sex marriage for immigration purposes and more. Opponents will object to an "amnesty," complain about the U.S. government's alleged failure to enforce the immigration laws and more.

Many Americans have an ideal immigration law in their minds. However, compromise is what will be needed for Congress to pass some kind of comprehensive immigration reform.

From Justia's Verdict.

In about six weeks, the Supreme Court will hear oral argument in two potentially blockbuster same-sex marriage cases.  In one case, Hollingsworth v. Perry, the plaintiffs challenge California’s voter-adopted ban on same-sex marriage (Proposition 8), and in the other, United States v. Windsor, the plaintiffs contest the federal Defense of Marriage Act (DOMA), which prevents any agency of the United States from recognizing same-sex marriage for purposes of federal law, even in instances (such as that presented by Windsor) where the state in which the same-sex couple resides itself recognizes the same-sex marriage.

On the merits, both cases involve complex issues of liberty, equality, and (perhaps) federalism.  Yet both cases also present tricky procedural obstacles that might dissuade (or prevent) the Court from reaching the merits.  In the Proposition 8 case, the key procedural question is whether the sponsors of the Proposition 8 initiative have standing under Article III of the U.S. Constitution to defend the measure against constitutional challenge in federal court where, as here, the state elected officials who would normally be expected to defend state laws (the California Attorney General and Governor) have, in this instance, declined to do so.  I have written extensively before (most recently here) about why, even if in some circumstances initiative sponsors should be conferred standing in federal court, I feel that there are good arguments that the Proposition 8 sponsors were never deputized by the voters of California, and thus should not enjoy federal standing in the present case.  In the space below, I analyze the standing issue presented in the DOMA case.

The Background of the Windsor Case in the Lower Courts

Same-sex couple Edith Windsor and Thea Spyer were married in Canada and then moved to New York, where their marriage was recognized as valid.  After Spyer passed away, Windsor sued the United States in federal district court to challenge the federal estate tax that she owed on account of the federal government’s failure (pursuant to the DOMA) to recognize her marriage under federal law.  (Had the federal government considered her marriage valid, Windsor would have been entitled to the marital exemption to the federal estate tax.)

Not long after the suit was filed, the U.S. Attorney General notified Congress that he and the President had concluded that they agree with the position taken by Ms. Windsor, that DOMA is unconstitutional.  The Attorney General stated that the United States would, however, continue to enforce DOMA until it is repealed or definitively declared invalid by the courts.

Because the Justice Department had made clear its intent not to defend DOMA in court challenges (even as it continues to enforce the terms of DOMA), an organization known as the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) sought to intervene as a defendant in the Windsor case in order to present a defense, on behalf of the DOMA and the House, to Windsor’s challenge.  The district court ultimately allowed BLAG to intervene in the case, and then ruled in Windsor’s favor on the merits.  The Department of Justice and BLAG both appealed to the United States Court of Appeals for the Second Circuit, although the DOJ continued to assert its agreement with Ms. Windsor on the merits of her challenge.  The Second Circuit affirmed the district court on the merits, and the Department of Justice asked the Supreme Court to take review.  The high Court granted review, but in so doing asked for briefing on whether BLAG is a proper party in the case under Article III of the federal Constitution and (if not) whether the agreement between the plaintiff and the United States government on the merits of the lawsuit prevents the Court from rendering an opinion on those merits.  The Court then appointed law professor Vicki Jackson of Harvard to provide briefing on these questions of standing and justiciability.

An Analysis of the Arguments Advanced in Professor Jackson’s Brief

Professor Jackson filed her brief a few weeks ago, in which she argued that BLAG does not enjoy standing in federal court to defend the DOMA, and that in the absence of BLAG, the agreement between the U.S. government and Windsor should prevent or disincline the Court to address the merits of the dispute.  (Of course, BLAG will respond with its own brief.)

As to the crucial question of BLAG’s ability to defend the DOMA when the executive branch won’t, Professor Jackson correctly identifies the 1983 Supreme Court case of INS v. Chadha as a key precedent in the area.  There, the Court permitted the House and Senate to defend the federal statutory device known as the “legislative veto” when the federal executive branch refused to defend the device against constitutional challenge by a private person.  A legislative veto is a mechanism by which one or both houses of Congress can, without involving the President, effectively block executive branch action after it has been taken but before it has gone into effect.  In Chadha, the challenger and the federal executive branch both believed that the legislative veto gave Congress authority beyond what the Constitution conferred, and in so doing violated the principle of separation of powers.  (On the merits, the Supreme Court agreed with the challenger and the executive branch, and invalidated the legislative veto in question there.)

Professor Jackson argues that the ability of the House and Senate to defend in Chadha is distinguishable from BLAG’s ability to defend in the DOMA case, for three reasons:  (1) the statute being challenged in Chadha was one that conferred on each house of Congress particular powers (the ability to veto executive actions), and so Congress had a “special legislative prerogative” in defending the legislative veto, above and beyond the interest Congress has (presented by BLAG) in defending all congressional enactments; (2) both Houses of Congress participated in Chadha, whereas BLAG, at most, represents only the House of Representatives; and (3) in Chadha, pursuant to a federal statute, each house of Congress explicitly authored its chamber’s participation in the lawsuit, whereas there is no federal statute authorizing the House to participate, and the House of Representatives itself did not explicitly authorize BLAG to represent it until after the lower court had already processed Ms. Windsor’s case.

The first distinction is quite interesting.  On one hand, the executive branch is in a particularly awkward position when it is asked to defend a statute that is not only arguably unconstitutional, but unconstitutional precisely because it invades the province of the executive branch vis-à-vis the legislature.  In such circumstances where there is an institutional conflict of interest, it may be hard for the executive branch to give a robust defense, and we may not want to encourage the executive branch to defend the statute in a half-hearted way, but instead encourage (by allowing Congress to defend itself) the executive branch to stay out of the dispute altogether.  (Notice that for these purposes, I am refining Professor Jackson’s first proffered distinction to focus not on the aggrandizement of congressional powers, but rather on the invasion of the executive’s powers.  If Congress, for instance, tried to assert new powers to veto actions of the judiciary, the executive branch would not be placed in an awkward position, and so I think that the justification for congressional standing would be weaker than in Chadha, even though both settings might technically satisfy Professor Jackson’s criterion of the presence of a special legislative prerogative.)

On the other hand, Congress’ interest in having its laws defended certainly is not limited to those laws that specially empower Congress; many statutes that regulate or empower persons outside of Congress are very important to the congressional agenda as well.  Moreover, four years after Chadha—in a case in which the Supreme Court held that a state legislature enjoyed standing in federal court to defend a measure when the state executive branch declined to do so, Karcher v. May—the statute at issue had nothing to do with expanding legislative powers, but instead required public schools to observe a moment of silence (which challengers argued violated the Establishment Clause of the First Amendment).

Professor Jackson tries to deal with Karcher on this point by asserting that because federal separation of powers principles “do not necessarily apply to the organization of state governments, judicially cognizable injuries for congressional and state legislators may differ.”  It is true that state constitutions may permit state legislatures to do things that Congress cannot, but if the question is—as Professor Jackson rightly says it is—whether a legislature has any distinct interest that it is allowed to vindicate in federal court, Karcher does make it harder, though perhaps not impossible, for the Court to draw the first distinction that Professor Jackson offers.

Professor Jackson’s second and third bases for distinguishing Chadha are cleaner, I think.  The second distinction—the need for both Houses of Congress, and not just one, to be involved before legislative standing is allowed—does draw support from the facts of Chadha (and those of Karcher, for that matter, where the leaders of both chambers of the New Jersey legislature intervened to defend), and also from the fact that Article I of the U.S. Constitution vests legislative power in a single “Congress,” to be comprised of two chambers.  In the DOMA context, the House has no greater interest in defending the measure than does the Senate, so that the Senate’s absence from the litigation arguably undermines the House’s claim to judicial redress.

And as to the third basis for distinguishing Chadha—the need for actual authorization of a legislative chamber before anyone can assert federal standing on its behalf—Chadha is also quite different from the present situation, because both the House and Senate in Chadha explicitly authorized participation in the lawsuit.  Moreover, although Professor Jackson’s brief doesn’t discuss Karcher in this regard, Karcher (even though it undermines Professor Jackson’s first distinction) is the best support for her third distinction—that formal authorization is required.  In refuting the argument that leaders of the New Jersey legislature could not assert legislative standing because they were not authorized to do so, the Court in Karcher explicitly discussed how New Jersey law empowered the leader of each chamber to represent the body in court, and pointed out that the participation of the legislative leaders in that case was premised on that legislative authorization.  Thus, in perhaps what is the Court’s most extensive discussion of legislative body standing (more elaborate than anything the Court said in Chadha), the Court indicated the need for authorization by the body in question for that body to participate.  This is particularly important, because the Court has often observed that what it has done with regard to justiciability issues in past cases is much less important than what it has said when it was explicitly addressing such issues.

As an aside, I note that in concluding in Karcher that New Jersey law authorized the legislature to participate when the executive branch isn’t defending, the Court cited a New Jersey case that really didn’t support the U.S. Supreme Court’s conclusion: the New Jersey case that was cited involved the legislature participating alongside the executive branch, not in lieu of it, in defending a state statute.  But even if the U.S. Supreme Court’s reading of New Jersey law was flawed, the important point here is the Court’s insistence that there be legislative authorization before legislative body standing can be permitted.  And, in the present case, as Professor Jackson points out, the House’s formal approval of BLAG’s representation of it did not come until very late in the day—indeed, after the Supreme Court had granted cert.  Moreover, there is no federal statute, akin to the state law the Court found to be present in Karcher, that authorizes the House to be involved at all.

How Will the Court Resolve the Issue of BLAG’s Standing or Lack Thereof?

 None of this is to say Professor Jackson’s arguments will necessarily carry the day.  As noted above, BLAG will have a chance to present its counterarguments.  Moreover, because the Supreme Court itself hasn’t been careful and/or fully explanatory in cases in which it has permitted individuals outside the executive branch to defend congressional statutes when the executive branch won’t, the Court is writing on a slate with some support on both sides of the ledger, and that gives it some wiggle room to support a decision either way.

 For example, in Dickerson v. U.S., the federal executive branch and the criminal defendant both agreed that the statute on which the Court of Appeals had relied was unconstitutional, and the judgment below should be reversed.  And yet the Supreme Court nonetheless reached the merits of the case, by appointing a law professor to write a brief defending the statute.  It is true, as Professor Jackson points out, that Dickerson (unlike Windsor) was not a case in which the United States sought Supreme Court review, but the fact remains that the Supreme Court in Dickerson resolved the merits of the dispute, without ever explaining why a “case or controversy” within the meaning of Article III was in existence at the time of its ruling, in light of the fact that both parties agreed that the law was unconstitutional and that the result below was wrong.

Another case that creates additional murkiness is the 2011 decision in Camreta v. Greene, in which the Court said that individual executive branch government officials had standing to appeal a decision by a lower court that had ruled in their favor on a damage claim against them, but that had also found their actions unconstitutional, because the officials had a cognizable interest in being able to perform their public duties unburdened by a wrongheaded judicial ruling.  If individual executive branch officials (as distinguished from the executive branch representing the government more generally) have such an interest in being able to do their jobs the way that they want to and think is permissible, then why shouldn’t individual legislators or legislative chambers have the same interest?  Members of Congress want to be able to do their jobs—vote on bills—without being affected by wrongheaded judicial rulings, and yet individual members of legislatures clearly have no standing.  In short, the Court has not been clear or coherent in this corner of standing law, any more than it has in the overall doctrine of Article III standing. (Indeed, the Court has never adequately explained what the specific objectives of standing and other justiciability doctrines should be, and instead has offered only vague invocations of separation of powers.)

Still, this softness in standing doctrine may be something that the Court can use to its advantage.  My guess is that the Court is not particularly eager to take up the merits of the DOMA case and has granted review only because a few federal appeals courts had held the DOMA invalid. By contrast, had the lower courts upheld the DOMA, I would have been surprised to see the Court grant review.  The Court’s disinclination to resolve the DOMA merits may stem in part from the fact that—unless the Court were to strike down the DOMA purely on federalism grounds, as the First Circuit seemed to do—any ruling either upholding or invalidating the DOMA would likely have significant analytic implications for the laws in all the dozens of states that ban same-sex marriages.  And the Court may not want to resolve the legality of all these state laws until more states come to rest on this question.  (That is why the Court may be similarly hesitant to resolve the merits of the Proposition 8 case.)  For these reasons, I won’t be surprised if the Court (or a large enough number of individual Justices on the Court) effectively defers these cases and avoids issuing dispositive rulings on the merits using the flexible justiciability doctrine.  Such a move may buy the Court only a few years, but on this social question in particular, the pace of change across the national landscape has been remarkably rapid.

From Justia's Verdict.

In this column, I explore what might be learned from the decision by the House of Representatives last week and the seemingly imminent (as of this writing) decision of the Senate this week to pass a bill that seems on its face to directly violate the clear text of the Constitution.

The No Budget, No Pay Bill and the Text of the Twenty-Seventh Amendment

The bill, one part of which temporarily suspended the debt ceiling, included another part referred to as the “No Budget, No Pay Act of 2013.”  (I shall refer to it here as the “NBNP bill” or “NBNP proposal”).  This latter part of the bill, which kicks in on April 16, prevents any member of Congress in a House of Congress (i.e., the House of Representatives or the Senate) from receiving her or his federal salary until the House of which s/he is a member adopts a budget, or until the last day of the 130th Congress (January 3, 2015), whichever comes first.  In essence, the bill withholds salary from all members of a House during the time the house has failed to produce a budget.

On the face of it, the idea has some appeal.  Why should federal legislators get paid until they do what most everyone would think is one of their most important parts of their jobs?  Of course, some critics will say it is unfair or unwise to punish all members of a legislative body if only some members are causing an impasse.  And withholding salary creates disparate impacts along class lines (independently wealthy legislators don’t rely on their salary for living expenses anyway) and also perhaps (because class and race are correlated) racial lines.  But no punishment/incentive-creation is perfect, and this legislative proposal is certainly in the American mainstream as concerns precision.

But here’s the problem:  The Twenty-Seventh Amendment (proposed in 1789, but not ratified until 1992) says:  “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have occurred.”  That is, no law changing the compensation of members of Congress can be put into operation until after the next Congressional election has taken place.

At first blush, the textual argument against the NBPA bill seems to be a slam dunk.  But what about the provision that gives all House and Senate members all of their withheld salary on the last day of the 130th Congress (January 2015), even if no budget has been passed by then?  This provision was included, according to the text of the bill itself, “to ensure that this [law] is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh” amendment.  Does it save the Act from 27th Amendment challenge?

I don’t see how it could.  Assuming that federal legislators are currently paid bi-weekly or monthly, the NBNP proposal could mean a delay of almost two years for receipt of the salary earned in spring of 2013 (from April 2013 until January 2015).  Given the time-value of money, such a delay would seem to change, or vary, the compensation a person receives.  We all know that when it comes to paying or receiving cash, the “when” is an important factor in determining the “how much.”  (For instance, if a person were due $150,000 in December 2013 and did not receive the money until April 2015, she would have lost, even in the current low-inflation, low-interest-rate environment, something more than $2,000.) Even if there is no constitutional entitlement of members of the House and Senate to be paid pursuant to any particular pay-period timeline, there is already a statutory prescription of a certain pay period in place, and changing that pay-period so drastically has to be understood as “varying the compensation.”

Indeed, if deferring the compensation by almost two years is not “varying” it, then why couldn’t Congress defer members’ compensation for 20 years?  There is nothing magical, within the words of the 27th Amendment, about the expiration of the 113th Congress.  Either changing the pay period and altering in a non-trivial way the date on which the money is received is varying compensation, or it is not.  And yet who among us would deny that if the NBNP proposal had deferred compensation for 20 years if a budget was not passed by a certain deadline, such an approach would run afoul of the 27th Amendment?

Perhaps a few other hypotheticals will drive the point home.  Imagine that Congress at the end of 1980 (when interest rates were well into the double-digits) amended then-current law to say that all pay for an entire session of Congress (two years’ worth) shall be received by each federal legislator on the first day of the new Congress?  Does anyone think that this effective increase in pay (accomplished by giving legislators access to the money earlier, rather than later) would not constitute a compensation increase that would trigger the 27th Amendment?

Or imagine that Congress passed a law providing that, going forward, federal judges have to wait for 20 months to be paid for judicial services rendered.  Would anyone doubt that such a law violates Article III, which says that “[c]ompensation [for federal judges] shall not be diminished during their Continuance in Office.”  Indeed, even a statutory discontinuance of yearly cost-of-living adjustments for judges might constitute a change in compensation, whether or not cost-of-living adjustments are constitutionally required in the first place.

Now the NBNP bill might be more defensible if the money in the escrow account were earning interest that was also supposed to be given to each legislator when the salary payment was ultimately made.  If so, the key questions would include whether the interest that each legislator ultimately received fully compensated him or her for the inability to use the money earlier—for example, whether the interest earned made up for any interest that the legislator might have had to incur on a loan taken out to pay living expenses during the interim.  Even then, the hassle of a legislator who was not wealthy having to procure an alternative cash flow on which to live until the escrow funds were paid may constitute a variance in compensation.  But we needn’t even consider such complexities because the bill does not provide that the funds in escrow can earn any interest to be paid to the legislators, and indeed says that the “remittance with respect to a [salary] payment deposited in [the] escrow account” shall be the “same [as] would apply . . . if the payment were not” ever placed in escrow, suggesting that only the salary itself (and no earnings on it) can be distributed to the legislator down the road.

Let me proceed on the view (whether or not I have convinced everyone that this view is correct) that the NBNP bill violates the plain terms of the 27th Amendment.  What does it mean, about the Congress or about constitutional interpretation more generally, that federal legislators would pass this bill?

A (Hypocritical) Rejection of Textualism

Last week’s House vote may tell us that many conservative members of that chamber (and conservatives voted for the bill in much higher numbers than liberals) are somewhat hypocritical in their views on constitutional interpretation.  Although each member of Congress certainly has his or her own nuanced understanding of the Constitution, the model for constitutional interpretation for many conservatives on Capitol Hill is Justice Scalia, who is well known for his commitment to textualism—to applying the text of the document as “intelligent and informed people of the time” of the document’s enactment would have. Under Scalia’s approach, the meaning that counts is “the original meaning of the text”—“how the text of the Constitution was originally understood” by interpreters of the day. What the original draftsmen (that is, the people who actually wrote the words) subjectively intended might be evidence of what the words meant at the time, but any divergence between the drafters’ subjective intentions and the most likely understandings of those words at the time of enactment would be resolved in favor of the latter.

It’s hard to imagine that the word “vary” meant anything different to intelligent readers in 1787 than it does today—to change or alter in any direction.  Indeed, the 27th Amendment is one of the most textually straightforward provisions in the Constitution, unlike provisions such as those guaranteeing “due process” or concerning the”taking” of property, which appear to use terms of art.

To be sure, someone might argue that “varying” really should be understood to mean “increasing,” because the primary concern on the minds of the framers was preventing Congress from increasing its own salary and benefitting from that increase before the voters could throw the bums out.  But the Constitution uses (a form of) the word “vary,” rather than the word “increase.”  And the framers knew how to specifically describe salary raises.  In Article I, Section 6, for example, the Constitution refers to offices “the emoluments thereof [which] shall have been increased. . .”  Thus, the choice of the word “vary” in the 27th Amendment seems quite deliberate, and quite clear.

I should note also that one could easily imagine why the 27th Amendment’s framers wanted to safeguard against certain salary decreases as well as increases.  Suppose, right after an election, a lame-duck Congress run by one party rams through a law drastically cutting Congressional salaries because the opposing party will be taking over Congress in a few weeks and the outgoing party wants to deprive the newcomers of money on which they can live while governing.  The new Congress would be put in the awkward position of having to “increase” their own salaries right after they take office, simply to restore the salaries to their previous, unmanipulated, levels.  Let us put aside the political difficulties of the new members of Congress trying to increase their salaries to the former levels (and we saw in the fiscal cliff machinations earlier this year that it matters, politically and rhetorically, whether someone is technically “raising” taxes—or salaries—even if the raise is simply a restoration).  If the 27th Amendment used the word “increasing,” rather than “varying,” the unfair actions of the lame-duck Congress would be permitted, and any attempted restorative increase by the new Congress (even if politically viable) would not be able to take effect for two years because it would technically be an increase; as a result, the newcomers in Congress would be deprived of a fair wage for at least two years.  By using the word “varying,” the 27th Amendment prevents this—and other partisan or discriminatory—salary reductions in the first place.

And in any event, such arguments about legislative purpose that are in tension with the clear text take us far away from the anchor of the words that Justice Scalia and other textualists (rightly) argue must constrain us.  (In a similar fashion, arguing that a 30-year old should be eligible for the Presidency today because Article II’s requirement that Presidents must be at least 35 was included simply to ensure that Presidents are mature, and 30-year olds are mature today, would have little traction in light of the clarity of Article II’s words.)

Another Possible Inference:  Congress Doesn’t View Its Job as Interpreting and Complying With the Constitution

Another reading of this episode may be that members of Congress do not view it as their jobs to decide constitutional interpretive questions when they pass laws; instead, that is for the courts to do.  Certainly some other folks in the political branches seem to have taken that position in recent decades.  Former President George Bush, for example, signed into law the McCain-Feingold Campaign Finance Reform Act, even though he thought the bill contained “provisions [that] present serious constitutional concerns” and “questions [that will] arise under the First Amendment,” and in spite of the fact that he had “reservations about the constitutionality of the broad ban on issue advertising.”  In defending his decision to nonetheless sign the bill into law, President Bush said:  “I expect that the courts will resolve the[] legitimate legal questions as appropriate under the law.”

Certainly not all Presidents think that constitutional interpretation is reserved only for the Courts.  Andrew Jackson didn’t, Abraham Lincoln didn’t, and Barack Obama does not, as evidenced by his decision not to have his Justice Department defend the Defense of Marriage Act (DOMA) in federal court based on his belief that the statute is unconstitutional.

For me, it is hard to think that the job of a member of Congress does not include interpreting and complying with the Constitution.  Every House member and Senator is required by the Constitution to take an oath to defend it as the Supreme Law of the Land, and many of the (compelling) arguments that Chief Justice John Marshall advanced in the famous Marbury v. Madison case justifying the power and duty of the federal courts to independently obey their understanding of the Constitution apply to the legislative branch as well.

A Protest Vote?

What if the folks in Congress know that the NBNP bill is unconstitutional, but do not care, because they want to send a political message?  Sometimes it seems Congress does pass a law that it knows or expects that courts will not enforce, simply in order to express a particular view.  For example, shortly after the Supreme Court struck down a Texas law banning flag burning as violative of the First Amendment in 1989, Congress passed a very similar federal ban on flag burning to show support for the flag.  Although some members of Congress might have (wrongly) believed that the federal law was distinguishable from Texas’, others might simply have wanted to vent their strong feelings against a Supreme Court interpretation of the First Amendment with which they disagreed.

Even if venting one’s feelings against the Court’s judgment might make sense in some settings and at some level be legitimate, in the case of the NBNP proposal, the Congress – to the extent that it is venting its feelings here – would be venting against the words of the Constitution itself, rather than some judicial interpretation of them.  Surely a more responsible form of protest would be a resolution decrying the limits of the 27th Amendment, or a well-crafted proposal to amend the 27th Amendment to permit (at least certain) immediate congressional pay decreases.

Where do things go from here?  Assuming the Senate does pass the bill in its present form and it becomes law (either because the President signs it, or because his veto is overridden), someone in Congress who needs or wants her pay will likely bring suit.  A legislator who has decided not to run for reelection in Congress in the future might be the ideal plaintiff; other plaintiffs may be deterred from suing for fear that their election opponents down the road can make use of their boldness in suing to be paid without having accomplished their job.  Because the plaintiff’s personal paycheck would be affected, she would clearly have standing to sue in federal court (under the famous Powell v. McCormack case).  It is an interesting question whether a legislator would have to wait until April 16 to sue.  On the one hand, until we know whether each House has passed a budget as of that date, the injury and case are arguably unripe.  On the other hand, a legislator might plausibly claim even before then that she does not want to feel influenced to vote for a budget bill simply to avoid losing some money to which she is constitutionally entitled.

Assuming that a federal court were to hear the case on the merits and agree with the straightforward reading of the 27th Amendment that I have advanced above, the real question would then come down to remedy.  What should a court confronting the Act do?  The bill in its present form does not seem to include a provision that provides for “severability,” that is, the idea that even if the NBNP part is invalid, the part suspending the debt ceiling still remains in force.  Perhaps a court would find the two parts to be independent of each other, and save the debt-ceiling suspension, but it is remarkable that the House would not only pass a bill parts of which seem blatantly unconstitutional, but then also make no mention of whether the other parts should survive or not.  One would hope for a more careful and serious job of drafting to have occurred when the stakes are so high.

Cross-posted from Justia's Verdict.

In my column this week, I explore an important First Amendment free speech ruling handed down at the end of December by the California Supreme Court.  The case, Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, is significant because: (1) it involves a dispute over some fundamental but complex First Amendment doctrinal principles; (2) it conflicts with a case from the United States Court of Appeals for the District of Columbia Circuit; and (3) (for reasons 1 and 2), it may very well end up in the United States Supreme Court.

At issue in Ralphs was an attempt by a supermarket owner to enlist the aid of a state court to enjoin (that is, judicially order) a labor union to stop picketing on the privately owned sidewalk in front of the consumer entrance to the store.  Among the various defenses the union raised were two (similar) California statutes that specifically prohibit state courts from enjoining peaceful labor picketing, but not other kinds of picketing activity.  (For simplicity’s sake, I will focus on just one of the two statutes, the so-called Moscone Act.)  The grocery store’s reply was that the Moscone Act, because it singles out labor picketing in particular for special protection, discriminates among speech activities on the basis of the “content” or subject-matter of the speech, and therefore is invalid under the First Amendment. Therefore, the Act cannot bar what would otherwise be a well-founded request for injunctive relief. The California Court of Appeal agreed with this argument and found the Moscone Act’s special protection for labor picketing invalid and thus inapplicable.

The Reasoning of the California Supreme Court

But last month, the California Supreme Court reversed, and, by a 6-1 vote, upheld the Moscone Act, and thus the ability of the union to picket outside the Ralphs store.  The California Justices in the majority reasoned that the two U.S. Supreme Court cases striking down content-based laws that had protected labor picketing – the two cases on which Ralphs relied – were “distinguishable,” that is, not controlling as to the outcome of the case at hand.  In Police Department of Chicago v. Mosley (1972), the U.S. Supreme Court struck down altogether an ordinance that prohibited picketing near schools while the schools were in session, but that exempted from its prohibition peaceful picketing regarding school labor disputes.  Then, eight years later, in Carey v. Brown, the Court invalidated an Illinois statute that made it illegal to engage in picketing in residential neighborhoods, but that (like the law in Mosley) contained an exception for labor picketing.  In each of these two cases, the U.S. Supreme Court said that the problem with the law was that it singled out one kind of picketing based on its content – labor picketing – and that such content-based discrimination violated the Constitution.

The California Supreme Court, in ruling for the union in the Ralphs case, argued that the situations presented in Mosley and Carey were different from those raised by the Ralphs dispute, in a few important ways.

First, the laws in Mosley and Carey were laws that prohibited speech activity (picketing) with an exception, whereas the Moscone Act doesn’t prohibit any speech activity—it merely prohibits judges from interfering with speech activity.

Second, and relatedly, invalidating the laws at issue in Mosley and Carey had the effect of generating more, rather than less, expressive activity, because invalidating the general prohibitions in picketing in those cases meant that everyone—not just labor unions—could picket. By contrast, if the Moscone Act were to be invalidated, the result would be that no one — neither labor unions nor anyone else—would be free from judicial injunctions that limited their picketing.  So striking down the Moscone Act, unlike striking down the laws in Mosley and Carey, would produce no additional speech.

Third, the California Supreme Court said, the picketing at issue in Mosley and Carey was taking place on public property, whereas the picketing at issue in Ralphs was occurring on private property. As the California Supreme Court reasoned: “Because here the walkway in front of the [Ralphs] store is not a First Amendment public forum, the holdings in Mosley and Carey do not apply.”

A Critique of the California Supreme Court’s Analysis

Each of these “distinctions” of the precedents set by Mosley and Carey is open to serious question.

The first two related notions invoked by the California Supreme Court—that the laws in Mosley and Carey were prohibitions on picketing with labor exceptions, rather than affirmative protections of labor picketing, and that, as a result, striking down those laws would lead to more, rather than less, picketing activity—are really a function not of First Amendment analysis (as the California Supreme Court wrongly suggests) but, instead, of how the laws in question were drafted.

Suppose, for example, that the Moscone Act were codified in California’s trespass law provisions:  “Courts can enjoin all trespass activities including expressive trespass activities, but may not enjoin labor picketing even when it involves trespass.”  That law, like the ones at issue in Mosley and Carey, would take the form of a “general prohibition” (of trespass), with a specific exemption.  And striking down that law would lead to more expressive (trespass) activities, but I doubt that the California Supreme Court would (or should) strike it down.

We can see the same basic point if we look at what lawyers call “severability” analysis.  (Severability analysis focuses on what a court does when it finds some aspect of a law unconstitutional—does it throw out the whole law, or just the part that is constitutionally problematic?)  In Mosley and Carey, the Court threw out the entirety of both laws (and thus freed up everyone to engage in picketing), but it did so only because each plaintiff challenged the law on its face (as opposed to challenging specific applications), and because the legislature did not make clear up front that if the labor exception were unconstitutional, then its preference would be to bar all picketing, even labor picketing.  Suppose the Illinois legislature had specifically stated the following in its statute:  “If the labor exception is problematic under the First Amendment, courts should simply ignore that exception and enforce the ban on all residential picketing.”  The U.S. Supreme Court still would have invalidated the labor exception, and the result would have been to allow less, not more, picketing activity than had existed before the statute was passed.

Indeed, that is exactly what happened in another case decided after Carey v. Brown. In Frisby v. Shultz, (1988), the town of Brookfield, Wisconsin wanted to ban residential picketing except for labor picketing.  But they realized that the exception for labor picketing would be problematic under Carey, so they revised their ordinance to ban all residential picketing, including labor picketing.  Their willingness to restrict more, rather than less, speech in order to remain content-neutral surely would not be a reason to permit the Town to stick with its first law, which had an exception for labor picketing; even though we know that Brookfield is willing to ban all picketing if need be, we would not let it exempt labor picketing from its ban any more easily than could the State of Illinois in the Carey case.

Importantly, none of what I have said thus far denies that judicial skepticism of content-based laws may very well—in the big picture—lead legislatures to pass fewer speech-restrictive laws, because legislatures can no longer provide content-based exemptions to politically powerful groups who would, absent the exemptions, block the laws from being enacted.  Without the device of content-based exemptions, legislatures will (as occurred in Mosley and Carey) often decide not to restrict anyone’s speech.  But that doesn’t mean that courts should be skeptical of content-based laws only when they suspect that such a political dynamic is afoot.  (Indeed, as noted above, in Frisby, the legislature decided that if it couldn’t exempt labor picketing from its ban on residential picketing, it would then simply ban all residential picketing without exception.)  Judicial doctrine is built around bright-line rules that courts must apply generally, because they make sense in the main.  And so courts can and should generally be dubious about nearly all content-based regulations of speech.

Perhaps an example will help drive these points home.  Suppose California passed a law that said:  “California courts, notwithstanding any other powers they enjoy, may not enjoin abortion-related picketing.”  That law, like the Moscone Act, would not take the form of a general prohibition on picketing, but rather only of a specific protection of some picketing.  And striking down that law would result in less, not more, picketing activity.  And yet could anyone doubt that that law would be considered a problematic content-based favoritism of abortion-protest speech?  Clearly, such a law would be struck down, even (I expect) by the California Supreme Court.

This hypothetical also undermines the California Supreme Court’s suggestion that Mosley and Carey were distinguishable because the picketing in those cases took place on public property.  In my hypothetical, the abortion picketing being specially protected is occurring on private property, and yet the skepticism of content-based favoritism would still doom the law.  More generally, it is not clear why the doctrine regarding content-based laws should be more lenient when the laws regulate speech on private property, and the California Supreme Court offers no explanation of why the public-fora settings in Mosley and Carey should be understood as crucial to the results in those cases.

A Better Defense of the Result in the Ralphs Case

Notwithstanding the difficulties with parts of its analysis, the California Supreme Court did, I think, reach the right result in Ralphs.  Why is the Moscone Act permissible under the First Amendment notwithstanding that it singles out labor picketing in particular?  My answer is that the regulation of labor activity in laws like the Moscone Act is not best understood as regulation of speech at all, but rather as part of a comprehensive legislative scheme regulating the economic system of labor-employment relations.  In other words, protections for labor picketing are just one small part of a complicated system of regulating the economic relationship between unions and employers—a system that is best characterized as a regulation of economic activity that has incidental effects on certain speech activities.  The text of the Moscone Act itself conveys this character, making clear that the limit on judicial injunctions is imposed “in order to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining. . . .”

The First Amendment often allows incidental regulation of speech as part of a larger regulation of what is properly deemed economic activity.  The regulation of persons who work in the professions (a subject of a recent column Alan Brownstein and I wrote) is one example.  A government law telling lawyers (if they want to remain licensed) that they can’t recommend that their clients violate the law can, from one angle, be seen as regulating their speech on the basis of its content (indeed, viewpoint).  Yet it is not a speech regulation that troubles us.  Another example of incidental effects on speech as part of a larger regulation of economic activity is the Rumsfeld v. FAIR ruling allowing the federal government to require law schools to provide access for military employers (also the subject of a column I co-wrote with Alan Brownstein).  While, in general, people are free not to be forced to allow the government to speak on their property, when the government speech at issue is part of an effort to hire employees, and where the property at issue is a space dedicated to interviewing employers, the First Amendment concerns are lessened.  And there are many other examples of regulations of commercial activity having permissible, incidental effects on expression (including cases permitting the government to require companies to pay into funds that will be used for generic advertising of the industry’s products.)

The crux of the matter is that the Moscone Act (like its counterparts in federal law) does treat labor picketing and other organizing activity specially, but only as a part of a larger system of regulation in which labor unions and employers are both heavily regulated, with an eye to producing a fair system of economic allocation; it is not a governmental effort to interfere with the “marketplace of ideas” by favoring some subjects or viewpoints and disfavoring others (the traditional reason why content- and viewpoint-based laws are problematic) so much as a regulation of the marketplace of labor.  Importantly, neither the law at issue in Mosley nor the law at issue in Carey was part of a comprehensive system of labor-relations regulation, and thus neither law could partake of this defense.  Instead, these laws were best seen as a kind of favoritism for labor unions, or as a necessary appeasement to labor unions to get the laws enacted in the first place.  Both such scenarios, however, are problematic under First Amendment principles.

To be fair, I should say that the California Supreme Court did mention (without fully developing) this larger labor-relations-regulation framework and the federal labor law counterpart.  And one Justice (Goodwin Liu, joined by Justice Werdegar) wrote a nuanced concurrence in which he made an argument very similar to the one I make in the preceding three paragraphs.  But even Justices Liu and Werdegar joined onto the majority opinion, the primary thrust of which was to distinguish Mosley and Carey in the unpersuasive and formalistic ways that I discussed above.

In any event, the California Supreme Court did acknowledge that the U.S. Court of Appeals for the D.C. Circuit, in a case decided nine years ago, Waremart Foods v. N.L.R.B. (2004), seemed to come out the other way, and to call into question the Moscone Act because it was impermissibly content-based.  Such a split between what is clearly the most important State Supreme Court and what is (arguably) the most important federal court of appeals may very well be of interest to the U.S. Supreme Court in the coming months and years.

Cross-posted from Justia's Verdict.

Amid all the drama surrounding the fiscal cliff negotiations of the last few weeks, there was an important, sad, and in some respects troubling development in the U.S. Senate.  Hawaii Democratic Senator Daniel K. Inouye passed away, and Hawaii Democratic Governor Neil Abercrombie appointed Democrat Brian Schatz to replace him.  Schatz was sworn in, and will serve in the Senate until Nov. 2014, when an election will be held to fill the remainder of Inouye’s six-year term, which expires in January 2017.

This development is important because all personnel changes in the Senate are significant, especially in this era in which voting margins in both Houses of Congress can be razor-thin.  (We will perhaps see another change in the Senate’s makeup if Senator John Kerry from Massachusetts leaves the Senate in the coming months to replace Hillary Clinton as Secretary of State.)  The development is sad simply because Senator Inouye, a war hero, was, by all accounts, a hard-working, honorable public servant.  And the development is troubling because the way he was replaced doesn’t seem to have been constitutionally proper.

Under Hawaii law, the Governor is empowered (indeed, directed) by the legislature to fill a U.S. Senate vacancy until an election of the people of the state is held.  So far, so good.  The Seventeenth Amendment of the Constitution provides, in crucial part:

“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

This language clearly tells state legislatures to prescribe the procedures for replacement elections and also authorizes (but does not require) state legislatures to empower their Governors to make temporary U.S. Senate appointments so that the vacancies are filled in the meantime.

But here’s the wrinkle:  the Hawaii statute (and those of a very small number of other states) limits the Governor’s choice to one of three names submitted by the political party with which the fallen Senator was affiliated, in this case the Democratic Party.  Hawaii law provides: “the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent.”  The Democratic Party in Hawaii submitted three names, one of which was Schatz’s, from which the Governor was instructed to choose.

From one perspective, it would seem to make sense to limit the Governor to picking someone who is from the same political party from which the fallen Senator came; death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the Senators.  Yet there is a very strong case to be made that the Seventeenth Amendment prevents the Hawaii legislature from substantively constraining the Governor’s choices in making a temporary appointment.

The Textual Argument Against the Hawaii Statute

Let us begin with some textual points.  The Seventeenth Amendment’s language differentiates between a state “legislature” and a state “executive” authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.”  This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy.  By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

If the drafters and ratifiers of the Amendment had expected the state legislature to have a significant role in the Governor’s execution of his appointment power with respect to temporary Senate appointments, the Amendment could very easily have included some phrase like “as the legislature has directed” or “subject to the legislature’s requirements” right after or before the clause referring to the Governor’s statutorily created power to make appointments.  Yet it does not.

It is true that the Amendment does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether.  But the power to decide whether the Governor should be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look at the Appointments Clause of the federal Constitution, in Article II.  That Clause gives Congress the power to “vest” appointment of inferior federal officers in the President alone, or in Cabinet members.  But Congress’ power to vest appointment authority in the President or a Cabinet Secretary does not give Congress the power to generate a list of three names from which the President or Secretary can be forced to choose.

Moreover, Congress should have more power in this regard than do state legislatures under the Seventeenth Amendment; Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.

The upshot, then, is that while state legislatures can deny Governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to authorize gubernatorial temporary appointments, they cannot unduly constrain Governors’ exercise of that power.

The Historical/Structural Case Against the Hawaii Approach

Disempowering the legislature and political parties to impose substantive constraints also makes a great deal of historical sense, given that the overall goal of the Seventeenth Amendment was to get state legislatures—and the party cronies who were thought to control state legislators—out of the business of deciding who should serve in the U.S. Senate.  Indeed, if the history of the Seventeenth Amendment reveals anything, it is the distrust and skepticism Progressives had concerning the influence of political parties in the legislative process.  Those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies.  This vision of party secrecy and backroom party deals cut by a few persons, who could not be counted on to represent the public’s interest, was often described in terms of party machines or party “bosses.”  As towering Senate historian George Haynes put it, “[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters.”

In 1911, Indiana Senator Beveridge, speaking on behalf of one of the many constitutional proposals of what became the Seventeenth Amendment, voiced this assessment of party influence and distortion:

Political parties . . . elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State . . . .  It must select a man of the party which elected the legislature . . . .  So it comes to pass that Senators actually have been . . . selected by the “party managers” . . . .  The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.

The part of Hawaii law that delegates to party chiefs the task of generating a short list seems to run quite counter to the historical anti-boss spirit of the direct election drive.

Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.

Some might also argue that governors today are essentially party bosses, whether we call them that or not.  But this misses the point that governors (unlike Party central committees) are elected—by the very people of the state in whom the Seventeenth Amendment vests ultimate power to select U.S. Senators. And governors—like U.S. Senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment’s textual preference for governors over state party officials and state legislators; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but malapportioned, legislatures in this context because governors are elected the exact same way in which the Seventeenth Amendment requires Senators to be picked. In short, my proffered reading of the Seventeenth Amendment’s text seeks to harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

The Interest in Promptly Filling Senate Vacancies (Which Is Even More Pressing Today) Argues Against Allowing a Legislature to Constrain the Governor’s Choices

The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate’s ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform.  It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why after the Seventeenth Amendment was enacted, almost every state has empowered its governor, on some terms or another, to make temporary appointments even before replacement elections can be promptly held.

But (as explained below) since governors under the terms of the Seventeenth Amendment can’t be forced, rather only empowered, to fill vacancies by temporary appointment, a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is the one most likely to result in the prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers that are given to them if they don’t like the constraints) could increase the likelihood that vacancies go unfilled during the period before the election is held.

Can Governors Be Forced to Make Senate Appointments?

There is another way in which the Hawaii statute likely impermissibly constrains the Governor, as well.  Not only does the statute purport to limit the Governor to three party-generated choices, but it also purports to require him to make an appointment, by its use of the word “shall.”

But this, too, seems problematic, under a careful reading of Section 2 of the Seventeenth Amendment. That provision says state legislatures “may empower” (emphasis added) governors to make temporary appointments, until the people fill the vacancies by election. “Empower” does not mean “require”; rather, it means “to create the power to do or not do something.”  The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment’s words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.

Thus, it is not at all clear that governors must exercise temporary appointment authority, even when that authority is validly created by the legislature.

The Senate Should Have Looked Into These Questions Regarding the Schatz Appointment

Some observers may argue that the federal courts, using the so-called “political question” doctrine, would be disinclined to interfere with the Senate’s decision whether or not to seat Mr. Schatz.  And perhaps this is true.  But that doesn’t mean that questions about the propriety of his appointment should have gone unexplored.

The Constitution makes each house, including the Senate, the “Judge of the . . . Qualifications of its own members.” So if a majority of Senators believe that the constitutional flaws in Hawaii’s statute that I have identified are unseverable from the part of the statute that authorizes the Governor to make temporary Senate appointments in the first place, then the Senate could have legitimately concluded that there was no valid “empower[ment]” of the Hawaii Governor under the current scheme, and could have rejected as unqualified (and therefore refused to seat) anybody the Governor appoints, including Mr. Schatz.

Under this—quite plausible—scenario, the vacancy from Hawaii would have remained unfilled until either a popular election had been held, or until the Hawaii legislature passed a new gubernatorial authorization that would be free of the impermissible restraints.

The Senate should have stepped up to its interpretive duties; alas, it does not appear to have done so, and that is unfortunate.  Happily, the Senate passed the fiscal cliff avoidance bill lopsidedly.  But if Senator Schatz’s vote had been crucial to the outcome, then a cloud surrounding his appointment could have ripened into major constitutional problems.