Cross-posted from Justia's Verdict.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year's blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called "ministerial exception" enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court's Recognition of a "Ministerial Exception" to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of "minister" for these purposes.  The Court began with a brief history of the Constitution's religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church's hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these "quintessentially religious controversies," the Court reminded, is "strictly a matter of ecclesiastical government" that is committed to "the highest ecclesiastical tribunals" and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a "ministerial exception" to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, "is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church's participation in God's mission for the world."  All of the Seminary's degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  "Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty."

In 2009, after the nation's financial crisis hit LTS's endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant's employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant's request for review) rejected Kant's lawsuit on two separate but related grounds.  First, the court held that the case "involved an ecclesiastical matter" that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion "becomes the majority with my concurrence" and also commented in his opinion that LTS's restructuring "is an ecclesiastical matter over which no civil court has subject matter jurisdiction."  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court's ruling goes significantly beyond the Supreme Court's ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The "Ecclesiastical Matters" Rule Barring Judicial Resolution

Let us first consider the Kentucky court's decision that it could not weigh in on Kant's contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says "Kant's claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS's decision making as to who will teach its students-all of whom attend there with a desire to become pastors or ministers-would be an inquiry into an ecclesiastical matter by this Court."

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant's breach of contract claims require interpreting the promises-and the limits on those promises-made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary's gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  "In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y."  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid-the desire to spend the money on other religious-instruction-related programs-is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into "the rationale for LTS' decisionmaking" as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court's invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The "Ministerial Exception"

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing-Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary-as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education-leans in LTS's favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly "express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract" [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise."  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless-and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims-simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so-and how far the exception should reach-is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS-"teaching students who desired to become involved in Christian ministry."   As the court noted, "[b]ecause Kant's primary duties involved teaching religious-themed courses at a seminary," he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court's approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the "formal title" of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain "functions . . .  performed for the Church."  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing "to see any relevance in the fact that Perich was a commissioned minister."   As the Court observed, "the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee's position."  And yet the Kant court all but ignored the fact that Mr. Kant is not-and could not be, since he is openly Jewish-considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function-and not just titles or status-should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don't use commissions or ordinations or titles of ministers; thus, their opinion needn't be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.

Cross-posted from Justia's Verdict.

In my last column (Part One of this series), I began to lay out what I think might (and should) happen if the U.S. Supreme Court decides that the Proposition 8 sponsors lack standing in federal court.  I explained my view that such a ruling is the best option for the Supreme Court because the voters of California, in enacting Proposition 8, cannot be said to have designated the sponsors as the People's agents-and agency is a key concept here-in that the voters did not do or say anything that manifested their assent to create a relationship of agency.  (It is on this crucial question of assent to agency where, as I explain in longer academic writings, I part company with thoughtful commentators, like Ed Whelan, who have argued that as long as the California Supreme Court today thinks that under the California constitution the sponsors are the People's representatives, it does not matter whether voters, when they enacted Proposition 8 in 2008, could have anticipated this principle of California law, which was not made clear until 2011.)

I also explained in Part One in this series of columns why I believe that if the Proposition 8 sponsors are found by the Supreme Court to lack standing, both the Ninth Circuit's and the District Court's rulings below should be vacated (that is, erased), and the plaintiffs (the two same-sex couples who sued in federal court in San Francisco) should get relief in the form of a "default" judgment that allows them, and them only (for the time being), to get their marriage licenses.  This result follows, I think, from the overall logic of the law in this area, as well as from what the U.S. Supreme Court said in Karcher v. May, in which a unanimous Court intimated that if the only defendant who is defending on the merits is found on appeal to have lacked standing all the while, the district court's adjudication of the merits of the plaintiff's claim should be vacated.

In the space below, I delve further into what might happen after it is determined whether the District Court's rulings should be left intact or undone.

Scenario 1: Judge Walker's Injunction Stands, and Is Read Broadly

Let us first imagine that the federal courts do not follow my suggested approach concerning Judge Walker's order.  I start with that possibility because I acknowledge that many (maybe a majority of) analysts assert (albeit, to my mind, without adequate explanation or justification) that District Judge Walker's injunction prohibiting the enforcement of Proposition 8 should  not be disturbed and should go into effect as is.  Suppose  that the injunction is left intact, and suppose that the injunction is read (as it certainly can be read) to apply not just to the named same-sex couple plaintiffs, but also to other same-sex couples.  What could happen then?

Well, to begin with, we could expect that neither the California Attorney General nor the Governor would contest this broad reading of the injunction.  And we know that the sponsors of Proposition 8 would not have any legal standing to object either (at least not in federal court).  The two county clerks who were named as defendants in the action, the clerks of Los Angeles and Alameda counties, would also probably be content to issue marriage licenses to other same-sex couples in those counties.

But what about the county clerks in other counties, counties that weren't named in the Proposition 8 lawsuit in Judge Walker's court?  If they feel bound by Judge Walker's order, and none complains, then perhaps Proposition 8 will not be enforced at all, and marriage will be available to all qualified same-sex couples in the state.

Yet, there are a few wrinkles here.  First, some individual who supports Proposition 8 might sue one of these county clerks and ask a court to clarify that Judge Walker's injunction does not apply to that clerk.  The plaintiff here might argue that the clerk in question is not bound by Judge Walker's injunction because he, the clerk, was not a party to that lawsuit and is not under the "control or supervision" (the term Judge Walker used) of any of the parties (such as the Governor.)  Any such suit would probably be brought in state court, because it's not obvious who would have standing in federal court to object to a clerk's issuing of same-sex marriage licenses.

Second, it bears noting that some county clerks represent, and have been elected in, counties that strongly support Proposition 8.  What if one of these clerks resists issuing same-sex marriage licenses, arguing that she remains bound by Proposition 8 until and unless a court tells her, specifically, otherwise?  If so, that clerk might then be sued by a same-sex marriage license applicant to get a determination of whether Judge Walker's order binds her.  Or she herself may even act proactively, going into court to ask for a clear ruling that she, the clerk, is not bound by Judge Walker's injunction or, if she is, to ask that the injunction be reopened because she didn't have a chance to participate in the proceedings Judge Walker's court.

This may then raise the question whether local clerks have federal standing to defend Proposition 8 (and remember that they, unlike the sponsors, they are elected officials).  And even if they do, a similar question arises of whether they have the authority to take a position in court that differs from the position urged by the Governor and Attorney General (that Proposition 8 is unconstitutional.)  These two related questions are tricky, and would likely require additional input from the California Supreme Court, which would take time.

My provisional sense is that it should be rare for any lower executive official in California to be able to take a legal position in court contrary to that which is being asserted by the Governor on the question of the meaning or validity of a statewide law; in a seminal ruling in 1981 (when Jerry Brown was Governor the first time!), the California Supreme Court ruled that even the state Attorney General (elected to be the chief legal officer of the state) could not take a position adverse to the Governor's in court because under the State Constitution, the Governor retains the "Supreme Executive power" to determine the public interests, and under state statutes he is to "supervise the official conduct of all executive and ministerial officers."  It may well be that county clerks are deemed executive and/or ministerial officers for these purposes, and thus are subject to gubernatorial control with respect to the positions taken in court.  It wouldn't make much sense, to me, to give locally elected county clerks more authority than the state's chief legal officer, the Attorney General, to defy the Governor in court, unless we conclude that county clerks are autonomous like charter cities, which have some independence from state control.

But as I suggested above, all this would take time to sort out (especially if any of the proceedings take place in federal court, and the federal judges feel the need to seek input from the California Supreme Court by way of certification, the device the Ninth Circuit used to get state court input on the question of sponsor standing.)

Or maybe all of these problems could be avoided if all same-sex couples seeking to be married are willing to go to Alameda or Los Angeles counties where licenses might be freely issued. Perhaps that would effectively nullify Proposition 8.  But it would also impose its own set of inconveniences on some couples.

Scenario 2:  Judge Walker's Broad Injunction Is Either Read Narrowly to Apply to the Named Plaintiffs Only, or Replaced by a Narrower One That by Its Terms Applies to the Named Plaintiffs Only

Now let us imagine that the course that I argue is the correct legal one is followed, and that whatever injunction is in force is issued (or construed) to award marriage licenses to the named plaintiffs only.  Then what?  One possibility is that county clerks, at least in counties that strongly oppose Proposition 8, would simply decide to start issuing same-sex marriage licenses generally even though no court order is directing them to do so.  While that is imaginable politically, I think it runs into legal barriers.  Indeed, that is precisely the action that was taken by the county clerk in San Francisco in 2004 (at SF Mayor Gavin Newsom's urging) but that was repudiated unanimously by the California Supreme Court in Lockyer v. San Francisco.  There, a majority of California Justices emphatically rejected the idea that a "local executive official, charged with the ministerial duty of enforcing [state law,] has the authority to disregard the terms of the [state law] in the absence of a judicial [directive], based solely upon the official's opinion that the [law] is unconstitutional."  So I don't think that county clerks could, or should, simply start disregarding Proposition 8 on their own.

But what if the Governor were to try to direct county clerks not to implement Proposition 8?  Again that might be politically plausible, but would it fly legally?  For starters, what about the Lockyer ruling?  Strictly speaking, the issue presented in Lockyer involved the power of local executive officials, not that of the Governor, but Justice Werdegar's separate writing in that case understood the majority opinion to sweep broadly and apply not just to local executive officials but to the entire executive branch:  "Make no mistake, the majority does . . . hold[] that [all] executive officers must follow statutory rather than constitutional law until a court gives them permission to do otherwise in advance."

Even if the Governor is not covered by the Lockyer opinion, there is still a question under California law about whether locally elected county clerks enjoy some autonomy from gubernatorial control in their performance of their duties.  I suggested above that perhaps a county clerk may not take a position in court that is adverse to the Governor's on the validity of a state law, but there may be a distinction between having control over the legal positions asserted in court, and having control over enforcement of the law itself.

Indeed, such a distinction (between declining to enforce and declining to defend in court) is hinted at in another potentially important piece of law that may constrain the Governor here, Article III, Section 3.5 of the California Constitution.  It provides that no "administrative agency [even one created by the State Constitution] has . . .power . . . to refuse to enforce a statute, on the basis of its being unconstitutional, unless an appellate court has made a determination that such a statute is unconstitutional."  Does this provision prevent the Governor from directing officials (even if they are otherwise under his control) not to enforce Proposition 8 until an appellate court determines Proposition 8 is unconstitutional?

It might, and it might not.  Is the Governor an "agency" within the meaning of Article III, section 3.5?  The Attorney General has issued advisory opinions that offer one possible definition of "agency" here that is broad enough to include, essentially, all state-level executive operations, and there is no doubt that the Governor is quintessentially executive and operates at the state, rather than the local, level.  At least one California court case seems to apply section 3.5 to another statewide elected official, the State Controller.

What about section 3.5's reference to refusal to enforce a statute?  Could one argue that section 3.5 does not apply to the Proposition 8 setting because Proposition 8 is a state constitutional provision, rather than a statute?  I don't think this argument would work.  First, and most important, it would be odd as a policy matter to favor the enforcement of state statutes over state constitutional provisions.  So the word "statute" here would probably be read to also include state constitutional provisions that are alleged to violate the federal Constitution.

Second, there may be an argument that Governor Brown would be refusing to enforce a regular statute-Proposition 22-were he to order the issuance of same-sex marriage licenses. Proposition 22 is the statute (a statutory initiative known as the Knight initiative) banning same-sex marriage that the California Supreme Court held unenforceable when it ruled in May of 2008 that the state constitution protects same-sex marriage.  But since Proposition 8 amended that part of the California constitution that rendered Proposition 22 unenforceable, perhaps one could contend that Proposition 22 is now a valid statute that would be protected by section 3.5.  A rejoinder to that argument could be that since, under the California Supreme Court's May 2008 decision, the Knight initiative was invalid when it was enacted eight years earlier (and we just didn't know that until 2008), it never was-and is not now-entitled to be considered a valid statutory enactment.  This is convoluted stuff.  And, as is true with the first scenario, all of this would have to be fought out in state court, and that would take time.

Finally, let us return to the distinction between the refusal to enforce a law, and the refusal to defend the law in court.  Whether such a distinction is a sensible one to draw, notice again that section 3.5 speaks only to the former, and does not seem to impose a duty on the Governor (even if he is an agency), or the Attorney General, to defend any measure challenged in court.  So, under Scenario Number 2, imagine that a new lawsuit, a statewide class action consisting of all same-sex couples in the state who desire to get married, is brought to challenge Proposition 8 on federal constitutional grounds (just as the two couples did in Judge Walker's court).  If such a class action were to be brought in federal court, and if the Attorney General and Governor were to decline to defend in that case (and assuming no county clerk could successfully intervene and take a position adverse to the Governor's), a default judgment protecting all same-sex couples would then issue, and Proposition 8 would be a dead letter even if were not repealed at the ballot box.  (It is also possible that such a class action could be brought in state court, alleging that Proposition 8 violates the federal constitution, but since state courts would permit the sponsors to defend the measure on the merits there, any ruling in favor of the plaintiffs would be less certain, and more time-consuming, than a default judgment.)

Thus, if the U.S. Supreme Court finds no sponsor standing in federal court, how broadly available same-sex marriage will be in California might still take some time to sort out.

Cross-posted from Justia's Verdict.

No one knows for sure what the Supreme Court is going to do with Hollingsworth v. Perry, the case (argued late last month) in which two same-sex couples sued in federal court to invalidate California’s Proposition 8, a voter-adopted state constitutional ban on gay marriage.  But many—myself included—think that, among the various scenarios, the most probable outcome (and one that is perhaps more likely than not) is that a majority of Justices will dispose of the case by finding that the Proposition 8 sponsors (also known as the official “proponents” of the measure), the only ones who defended against the challenge, do not enjoy standing in federal court to speak on behalf of the State.  If the sponsors lack standing, there is no valid “case” or “controversy” (terms used in Article III of the U.S. Constitution) in which the Supreme Court could resolve the merits of the plaintiffs’ equal protection and due process challenges.

As I have explained more fully in a number of writings going back a few years (including this one), my reason for doubting the sponsors’ standing—and it differs somewhat from the reasons argued in the amicus brief filed by Professor and former Acting Solicitor General Walter Dellinger, in which he also concludes that the Proposition 8 sponsors lack standing—is that when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

The Consequences of a Denial of Standing to the Proposition 8 Sponsors:  Common Ground and Divergent Opinions

But if the Court finds no sponsor standing, what happens next?  There seem to be a number of answers that have been offered by various talking heads.  In the space below, the first of a two-part series of columns, I explain, albeit in necessarily abbreviated terms, what I think should and might happen.

For starters, if sponsor standing is found to be lacking, everyone agrees (or certainly ought to agree) that the Ninth Circuit opinion invalidating Proposition 8 on the merits and creating law of the Ninth Circuit that could conceivably affect other states and also other issues in the Circuit would be vacated, that is, figuratively erased.  Beyond that, there is also broad agreement that the two named same-sex couples in the Hollingsworth case who sought marriage licenses from the county clerks in Alameda and Los Angeles counties, respectively, should get their licenses.  But exactly why and how these two named couples would get the relief they seek is where commentators seem to diverge.

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated.  The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.”  A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask:  If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place?  There are a few reasons.  First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court.  (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail.  But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.)  So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held.  Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

As Professor Marty Lederman and I and others have pointed out, under the law of the Ninth Circuit (and perhaps also that of the Supreme Court), a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants’ interactions with other persons.  In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to the named plaintiffs requires allowing all same-sex couples in the state to marry, because absent such broad access to same-sex marriage, the named plaintiffs’ marriages would continue to be subject to stigma.  But I don’t think that this stigma argument works, because if it did, then same-sex couples who were already married in California in the summer of 2008 (during the window before Proposition 8 was passed) would have standing in federal court to challenge Proposition 8 on the theory that their marriages, which were not invalidated by Proposition 8, are nonetheless stigmatized unless other same-sex couples can marry too.  And I don’t think that argument would fly.

As Professor Lederman has suggested, Judge Walker’s injunction was seemingly overly broad even assuming that the trial was properly held, and Professor Lederman argues that the way to cure this mistake is to construe the injunction narrowly to apply only to the named plaintiffs, since any injunction broader than that would be impermissible.  Technically, because the words used in Judge Walker’s injunction (and his subsequent denial of a “stay,” or a hold, on his injunction) do not explicitly refer to other same-sex couples beyond the named plaintiffs, we might be able to do what Professor Lederman suggests. But such a reading of the injunction’s plain words seems strained and surely not reflective of Judge Walker’s intent.  Under my approach, no artificial construction of Judge Walker’s order is required, since I think the trial never should have taken place, and plaintiffs need to go back and make a request for a default judgment, after which the judge (Walker’s replacement, since he has retired) can enter a properly limited injunction.  And the appropriateness of a narrow injunction is easier to see after a default judgment than after a trial on the merits.  (As an aside, I do note that after a request for a default is made, a judge can hold a hearing if needed, but I’m not sure that one would be needed here, and I’m certainly not sure that such a hearing would look anything like Walker’s trial.)

Is the Scope of the Trial Court Injunction Appropriate for the Supreme Court to Discuss?

Professor Dellinger, for his part, says the scope of the injunction isn’t validly before the Supreme Court unless and until some valid litigant (i.e., not the sponsors, but rather a valid representative of the State of California) appeals it.  I disagree with this position based on the analysis I’ve just discussed: The impropriety of the trial itself and the judgment to which it led is certainly something that the district court can and should consider on remand if the Supreme Court finds that the sponsors lack Article III standing, and the Supreme Court is well within its authority to give such guidance to the lower courts about what should happen on remand.  But Professor Dellinger and I may have an even deeper divergence of opinion.  Professor Dellinger argues that there is a standing problem in the Hollinger case because the sponsors lack standing, and they are the ones who have tried to invoke the federal court at the Ninth Circuit and Supreme Court levels (having lost in each of the lower courts.)  By contrast, the plaintiffs, who invoked the power of the district court, clearly do have standing, so the district court had a case or controversy before it.

This reasoning is to my mind only partially correct.  The district court did have a case or controversy before it for the limited purpose of granting a default judgment, but not for purposes of holding a trial to adjudicate the merits of the plaintiffs’ claims.  There is always a case or controversy (assuming plaintiffs have standing, and are suing under a federal claim) for purposes of issuing a default judgment; the government or any other proper defendant cannot defeat potentially valid claims by simply not defending against them.  But once the only proper defendants decline to defend, the district court does not have Article III power to do any more.  And it doesn’t matter who was invoking the power of the federal court.

To see this, imagine that the plaintiffs had lost the trial, and had then appealed to the Ninth Circuit, lost on the merits there, and then sought review in the Supreme Court.  In that hypothetical, the party invoking the jurisdiction of each level of the federal judiciary—the same-sex couple plaintiffs—would clearly have standing.  But if the only persons defending were sponsors who lack Article III standing, neither the Ninth Circuit nor the Supreme Court could, in my view, rule on the merits.  (Indeed, when the Supreme Court began its discussion of whether initiative sponsors lack Article III standing in in the 1997 case of Arizonans for Official English v. Arizona, the Court observed that “[s]tanding to sue or defend is an aspect of the case or controversy requirement,” not that standing to invoke the federal courts is an aspect of the case or controversy requirement.)

It seems to me that, notwithstanding some sloppiness here and there by the Court over the years (and no one can draw a straight line through everything the Court has said or done in this realm), if standing doctrine is to have any integrity, what matters for purposes of adjudication on the merits is that there be, at the time the merits adjudication is performed, valid, adverse, Article III-qualified parties on both sides of the “v.,” not just on the side of the “v.” that has invoked the federal judiciary.

In Part Two of this series (currently scheduled to run on this site on April 26, 2013), I will examine what will happen if Judge Walker’s ruling is left intact and is read broadly, rather than narrowly, to apply to couples other than the named plaintiffs. I will also consider what things might look like if, in response to a Supreme Court ruling that the sponsors lack standing, either county clerks themselves or the Governor and Attorney General decide on their own to stop implementing Proposition 8, whether or not any court order tells them they must do that.

In the space below, I offer some quick analysis of the U.S. Supreme Court's oral argument on Tuesday in Perry v. Hollingsworth, the case in which same-sex couples challenge California's ban on same-sex marriage, the voter-adopted Proposition 8.

The Court Was Presented With a False Dilemma Concerning Sponsor Standing

Over the last couple of years, I have written in a number of essays (including this one) that I think that the Proposition 8 sponsors should not enjoy standing in federal court to defend the measure, even though the California Attorney General and Governor have failed to defend.  As I have explained, the Proposition 8 sponsors were never elected nor appointed by the voters, and are not accountable to them.  For these and various other related reasons, the sponsors are not appropriate representatives for the State of California.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time when litigation is conducted.

At Tuesday's oral argument, many of the Justices (up to five or more, and especially the "liberal" Justices Ginsburg and Kagan) seemed to understand these problems, and so there may be a majority of the Court for the proposition that Article III's "case or controversy" requirement is not satisfied in the present situation.  Even if fewer than five Justices find sponsor standing to be a problem, the sponsor standing issue could drive the result of the case.  Imagine a split in which three Justices want to reverse the Ninth Circuit on the merits, three want to affirm on the merits, and three want to vacate the lower court ruling for lack of standing.  Under such a scenario, the three Justices who would prefer to reverse on the merits might nonetheless join the three who want to vacate for lack of standing, simply to erase a problematic Ninth Circuit ruling that they all feel should not remain as the law of the Ninth Circuit.

The best counterargument (and it came up at oral argument), in favor of sponsor standing, is that if sponsors lack standing to defend initiatives, then elected officials can wrongly "kill" initiatives by simply not defending the measures when the initiatives are challenged.  This is especially problematic because the initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people's interests and desires, such that direct democracy is needed.  And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General's self-serving decision not to defend such a measure would rightly be viewed with great public outrage.)

So, a few Justices (perhaps especially Justice Sotomayor) worried aloud, if sponsors are not allowed to defend initiatives in federal court, then the initiative device could be gutted.  But this framing of the issue ignores a key middle ground position:  that state law can authorize sponsors to defend initiatives (in a way that federal courts will respect and accept), but the authorization has to be done carefully and in a way the voters can see.

In fashioning a workable balance between the competing concerns presented by initiative-sponsor standing, the federal courts should recognize the possibility of sponsor standing, but only when the conferral of the power to sponsors to defend an initiative is clearly provided for in state law, and addresses some of the theoretical and logistical problems raised by sponsor standing. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, sponsor standing seem inadequate to confer notice on the voters since, as the U.S. Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative (creating authorities and fiduciary duties that the proponent must honor) as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to  address, among other things:  (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4)   what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative sponsors.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision by the California Supreme Court in 2011, perhaps going forward voters in California should know, and take account of, the fact that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court.  (In this regard, I note that the California Supreme Court ruling might not suffice even going forward, because it did not answer some of the key logistical questions about the length of time a sponsor has power to defend the initiative, etc.)   In any event, because such state law clarity was certainly not in place when Proposition 8 itself was passed in 2008 (and I note here that it was passed by a slim margin), the U.S. Supreme Court could easily conclude that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.  The voters of California in 2008 cannot be said to have appointed persons whom the voters did not even know were being appointed at that time.

The Consequences of a Finding That the Proposition 8 Sponsors Lack Federal Standing

If the Court does dispense with Perry on standing grounds, the Ninth Circuit ruling would be vacated (erased), and the case would go back to the trial court.  The named plaintiffs would (and should) get their marriage licenses (because certainly the government must give a plaintiff the relief she seeks when it defaults, that is, refuses to defend against her challenge).  But the extent to which other Californians would be free from Proposition 8-and when that might happen-depends upon many complexities, including the Governor's reaction to a ruling based on lack of standing, a potential state-wide class action lawsuit, and also the wild-card possibility that certain elected county clerks (these might be the "other people" to whom Chief Justice Roberts referred during oral argument) may be granted standing to defend Proposition 8 if it continues to be enforced in the State yet not defended by the Attorney General and Governor.  The procedural entailments of a Supreme Court ruling on standing grounds are themselves very complicated, and the only reason that they weren't explored much more at oral argument this week was, I expect, the constraint of the limited argument time.

What About the Option of Dismissing the Case Altogether At the Supreme Court?

If the Court doesn't want to reach the merits of the Proposition 8 challenge, it has another option as well-to dismiss the writ of certiorari as "improvidently granted."  Under this approach, the high Court would simply decide, upon closer inspection, that it was a mistake to grant review in the case in the first place, and undo that grant.

A dismissal is possible, but this course of action would need to overcome a few hurdles.  First, ordinarily speaking, for the Court to dismiss a case as improvidently granted (or, to "DIG" it, in Supreme Court parlance), at least six Justices would have to agree.  If four Justices want to keep the case, they typically can, since those same four Justices were all who were needed to grant review in the first place (pursuant to something known as the "Rule of Four.")  To preserve the integrity of the Rule of Four, the Court has traditionally taken the view that at least one of the Justices who voted to grant review (and more than one, if there were more than four votes to grant) would have to be among the majority who want to DIG the case.  And at oral argument, Justice Scalia seemed to believe he spoke for at least four of the Justices who voted to grant review when he suggested that the grant was water under the bridge (his actual words were that "we have crossed that river.")  So unless Justice Kennedy and Chief Justice Roberts both want to DIG the case (assuming one or both initially voted to grant review), mustering a DIG would seem to be hard.

Another reason a DIG may be difficult is that, unlike a ruling that the initiative sponsors lack standing, a DIG would leave the Ninth's Circuit's ruling intact.  The Ninth Circuit ruled that Proposition 8 was constitutionally irrational because: (1) it repealed an existing state-law right to same-sex marriage (rather than simply declined to recognize one); and (2) California had done so much to equalize the treatment of gay and straight couples that it no longer had any good reason for not extending the marriage label to gay couples.  None of the Justices seemed to think that this reasoning made sense.  (Justice Kennedy called it "very odd," and Justice Alito asked if the plaintiff's lawyer was "serious" about this argument.  Even Justice Breyer voiced concern over the perverse incentives it creates.)  Because the Ninth Circuit's ruling could have non-trivial spillover effects in other Western states outside of California and/or externality effects on rights other than the right to marry, many Justices may not want to leave it on the books.

My focus on the procedural issues in Perry in no way suggests the merits discussion at oral argument was unimportant or uninteresting.  But space constraints require that I defer them-and a discussion of the oral argument in the Defense of Marriage Act (DOMA) case, Windsor v. U.S.-until future writings.

Cross-posted from Justia's Verdict.

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.

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.

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.