U.S. S.C. Intervention into Florida Dispute

[Scarberry, Mark]

The states do not have power, absent a grant from the US Constitution, to
have any particular role in the choice of the President of the United
States. Art II sec 1 gives the state legislatures power to determine the
manner of selecting electors for purposes of choosing the President.

Similarly the states do not have power to choose the secretary general of
the UN, the recipient of the Nobel Peace Prize or numerous other persons.
Being an unlimited sovereign within an area of sovereignty is not the same
as being a totally unlimited sovereign over all.

I think that answers Prof. Wolff's ingenious argument, but I could be wrong
and would be happy to hear more from him or others on this matter.

Mark S. Scarberry
Pepperdine University School of Law
 <mailto:mark.scarberry at pepperdine.edu> mark.scarberry at pepperdine.edu



PS I would refer to Prof. Wolff as Tobias except that he signs some messages
"T". I did not intend to be formal or to deny him the benefit others have
had of being called by their first names on this list. Of course, with a
name like "Mark" I do not expect to be called by my first name alone very
often on a list that includes more distinguished "Mark's," like Mark
Tushnet. But I don't mind it, if the context makes clear I'm the "Mark" in
question.


 -----Original Message-----
From: Tobias Barrington Wolff [mailto:tbwolff at UCDAVIS.EDU]
Sent: Tuesday, December 05, 2000 4:17 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: U.S. S.C. Intervention into Florida Dispute



Pursuant to Bob Ackerman's observation, a further point on "authority" and
state legislatures.

Professor Katkin, summarizing Professor Scarberry's position, wrote: "The
Florida legislature's authority to direct the manner of appointment of
Florida's Presidential Electors derives entirely from U.S. Const Art. II
Sec. 1 cl. 2."  Apparently addressing a similar point, the Court in Bush v.
Palm Beach wrote: "But in the case of a law enacted by a state legislature
applicable not only to elections to state offices, but also to the selection
of Presidential electors, the legislature is not acting solely under the
authority given it by the people of the State, but by virtue of a direct
grant of authority made under Art. II sec. 1 cl. 2 . . . ."  I believe that
these statements reveal a misguided approach to the question.

The federal government is one of enumerated powers; it can do only what the
Constitution expressly empowers it to do.  State governments, in contrast,
are sovereigns of plenary authority, as Tenth Amendment enthusiasts often
remind us.  Let us set aside for the moment any limitations that a State's
own institutions or charters might impose.  Absent such limitations, States
are authorized to act on any matters whatsoever.  They are subject to
certain limitations under federal law and the Constitution, but that is a
different matter.  Thus, the statement: "Florida cannot do X because there
is no affirmative grant of authority empowering it to do X" is not a
well-formed statement.  A State is forbidden to violate the First Amendment,
or to tax a federal entity without permission, or even to impeach a federal
judge, not because it has no authority to act in such spheres, but because
the Federal Constitution -- either expressly or by implication -- prohibits
it from doing so.  State legislatures cannot impeach federal judges because
the Federal Constitution expressly reserves to the House and Senate the sole
power of impeachment and trial.  State legislatures cannot tax federal
entities without permission because the Supremacy Clause, by necessary
implication, grants the federal government functional as well as legal
supremacy over the States, and "the power to tax is the power to destroy."
(A similar argument-by-implication would undoubtedly also apply to judicial
impeachment, even if that function were not expressly reserved to the
Congress.)

Thus, as an initial matter, the Florida legislature does not need any
"direct grant of authority" to regulate the manner of choosing presidential
electors, if we are using "authority" in the sense of power to act.  The
plenary authority that Florida enjoys is sufficient.  How, then, should Art.
II sec. 1 cl. 2 be interpreted?  It clearly imposes a limitation on federal
power.  No one disputes that.  It may also impose a limitation on state
power, creating a (defeasible) separation of powers within state government
for this one function.  Good enough.  So far, none of this suggests any
"grant of authority" to the state legislature.  Once again, under a
traditional understanding of the plenary authority of States, no authority
need be granted.  The States enjoy all authority not forbidden to them by
the Constitution or federal law.

Now let us reintroduce the question of State Constitutions.  These
documents, like the Federal Constitution, place limitations on the
otherwise-plenary authority of state legislatures.  (Indeed, they also
define which body constitutes the legitimate state legislature, as Prof.
Ackerman points out.)  Now, one might ask, "Does Art. II sec. 1 cl. 2
authorize state legislatures to regulate presidential elections without
being constrained by any of the limitations that their State Constitutions
would otherwise impose?"

With the question posed thus, what is the argument for the proposition that
Art. II sec. 1 cl. 2 does any such thing?  It clearly does not do so
expressly.  Thus, we must have some sort of functional argument that it does
so implicitly -- that, as in McCulloch v. Maryland, to rule otherwise would
be to derogate from a principle that the Constitution articulates and
protects.  There may well be specific instances where such an argument would
be strong -- for example, if a State Constitution said, "The State
Legislature shall not have power to designate the manner of choosing the
electors."  That is very different from suggesting that it is implicitly,
functionally necessary for state legislatures to enjoy a general mandate to
act without regard to any provisions in their own Constitutions if Art. II
sec. 1 cl. 2 is to have any meaning.  The federal separation of powers
doctrine coexists quite comfortably with the other express limitations that
the Federal Constitution imposes, and only rarely must be invoked to
challenge federal statutory regulations.

Thus, I suggest, the proper analysis requires asking whether a particular
state constitutional limitation actually (and perhaps, "substantially")
interferes with whatever division of authority Art. II sec. 1 cl. 2 imposes.
Nothing more.  It is misleading to speak of that clause as a "grant of
authority".  There is no good reason to read Art. II sec. 1 cl. 2 as
superseding state constitutional limitations unless there is some actual,
functional reason why it must do so in a particular case.

-- TBW

At 05:44 PM 12/05/2000 -0500, you wrote:


Mark:

Thank you for your thoughtful replies to my questions.  Please allow me to
push my last point a bit further:

Suppose 150 people gathered on the street in Talahassee declared themselves
to be the Florida Legislature.  Suppose that these people were elected at
large by the people of Florida.  I trust that these folks would not be
considered the Florida Legislature; only that body duly constituted and
elected pursuant to the Florida Constitution can exercise the power of the
Florida Legislature.

Now suppose instead that the duly elected Florida Legislature enacted a
presidential election statute by voting in a single body.  Bicameralism is
not necessary to a republican form of government (ask the folks in
Nebraska), so the only constitution violated by a statute enacted in this
manner would be the Florida Constitution (which requires that each house
separately enact a statute or, I assume, a joint resolution, in order for
it to become law).  Would a presidential election statute enacted in this
manner (i.e., in violation of the Florida Constitution) be recognized as
law?  If not, why should any presidential election statute that violates
the state constitution be so recognized?

Bob Ackerman

At 01:35 PM 12/5/00 -0800, you wrote:
>My responses to Bob Ackerman's good questions are interspersed below in all
>caps. I know all caps is like shouting and I don't mean to be rude, but it
>may help to set off my answers from his questions. Some of the answers
>repeat things I've previously posted.
>
>Mark S. Scarberry
>Pepperdine University School of Law
>mark.scarberry at pepperdine.edu
>
>
>-----Original Message-----
>From: Robert Ackerman [ mailto:bxa9 at PSU.EDU <mailto:bxa9 at PSU.EDU> ]
>Sent: Tuesday, December 05, 2000 1:04 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: U.S. S.C. Intervention into Florida Dispute
>
>
>Mark:
>
>Is the state legislative power under Art. II sec 1 so plenary as to:
>
>(a) allow legislation regarding selection of electors to go into effect
>notwithstanding the governor's veto (assuming that ordinarily under the
>state constitution the governor would have the power to veto legislation)?
>
>YES. IF THE STATE LEGISLATURE ACTS BY JOINT RESOLUTION THAT SHOULD BE
>SUFFICIENT. IF, INSTEAD, THE LEGISLATURE SENDS A BILL TO THE GOVERNOR FOR
>SIGNATURE OR VETO, I WOULD TAKE THAT AS (1) A DELEGATION OF POWER TO THE
>GOVERNOR OR (2) AN ACQUIESCENCE IN THE GOVERNOR PLAYING A ROLE WITH REGARD
>TO THAT BILL OR (3) A COURTESY TO THE GOVERNOR. IN ANY SUCH CASE IF THE
>LEGISLATURE WISHES IT MAY ACT DESPITE A GOVERNOR'S VETO BY SUBSEQUENTLY
>PASSING A JOINT RESOLUTION IMPLEMENTING ITS SCHEME.
>
>(b) trump a federal statute requiring the counting of overseas military
>ballots after expiration of the seven days provided in a statute such as
>Florida's?  After all, if the Florida legislature's authority is derived
>directly from the U.S. Constitution, and is plenary regarding the subject
>matter, doesn't it trump a mere federal statute notwithstanding the
>supremacy clause (the specific controlling the general)?
>
>YES. THE ART II SEC 1 POWER TRUMPS ORDINARY FEDERAL STATUTES IN MY VIEW.
BUT
>CONGRESS HAS THE POWER UNDER THE CONSTITUTION TO DETERMINE THE DATE ON
WHICH
>THE ELECTORS ARE CHOSEN. IT SEEMS TO ME THAT SUCH A POWER INCLUDES THE
POWER
>TO ALLOW SERVICEMEN AND WOMEN OVERSEAS (AND OTHER CITIZENS OVERSEAS) TO
CAST
>VALID BALLOTS ON THE FIRST TUESDAY AFTER THE FIRST MONDAY IN NOVEMBER, EVEN
>IF THOSE BALLOTS THEN ARE NOT RECEIVED BY ELECTION DAY IN THE COUNTY
>ELECTIONS OFFICE. I HAVEN'T SEEN THE FEDERAL STATUTE THAT IS AT ISSUE HERE.
>COULD SOMEONE PROVIDE THE CITE?
>
>(c) trump a state constitutional provision against discrimination?  E.g.,
>if the Florida Constitution says "no discrimination against gays," can the
>legislature enact a statute saying that gays cannot vote in a presidential
>election?
>
>YES. BUT SUCH DISCRIMINATION WOULD, IN MY VIEW, EITHER (1) LACK A RATIONAL
>BASIS AND THUS BE PROHIBITED BY THE 14TH AMENDMENT OR (2) BE SUBJECT TO
>STRICT SCRUTINY (AND THEREFORE BE INVALIDATED) BECAUSE IT INVOLVES THE
RIGHT
>TO VOTE. THIS DOESN'T MEAN A STATE LEGISLATURE HAS TO ALLOW POPULAR VOTING
>FOR PRESIDENTIAL ELECTORS, BUT, ONCE IT DOES PERMIT SUCH VOTING,
>CLASSIFICATIONS THAT SERIOUSLY IMPINGE ON THE RIGHT TO VOTE MAY BE
>INVALIDATED UNLESS THEY PASS STRICT SCRUTINY.
>
>Because the Florida legislature exists only because of the Florida
>constitution (i.e., the legislature was established by the Fla. Const., and
>not the U.S. Const.), can it lawfully exercise any power outside that
>constitution?  For the federal analogy, see Ex parte Young.
>
>THE FLORIDA LEGISLATURE DOES NOT EXIST ONLY BECAUSE OF THE FLORIDA
>CONSTITUTION. THE REPUBLICAN FORM OF GOVT CLAUSE, IN MY VIEW, REQUIRES THAT
>THERE BE A STATE LEGISLATURE. THAT REQUIREMENT IS PROBABLY NONJUSTICIABLE,
>BUT IT DOES, IN MY VIEW, PROVIDE A BASIS FOR THE FLORIDA LEGISLATURE TO ACT
>EVEN IF THE FLORIDA CONSTITUTION PURPORTS TO PROHIBIT THE ACTION.
>
>Bob Ackerman
>
>At 10:05 AM 12/5/00 -0800, you wrote:
>>My thanks to Bryan for his gracious post suggesting that my reading of
>>McPherson v. Blacker may be the most persuasive reading. I continue to
>>think, for reasons given in my other posts, that the Art I sec 2 power is
>>given peculiarly to the state legislature. To the extent the state
>>legislature exercises that power in tandem with its ordinary legislative
>>power, there is the possibility that a single statutory scheme may result
>in
>>two different approaches being used, depending on whether the issues
>involve
>>presidential elections or other elections. It seems to me the US S. Ct.
>>unanimously recognized that we could not just assume the state legislature
>>intended to be bound by the state constitution with regard to presidential
>>elections when enacting such unitary legislation. Ann's perceptive post
>>gives a good reason for not so assuming. There may well be other reasons,
>as
>>well.
>>
>>Further, the Court came very close to stating that the Art II sec 1 power
>is
>>the legislature's alone:
>>
>>"As a general rule, this Court defers to a state court's interpretation of
>a
>>state statute. But in the case of a law enacted by a state legislature
>>applicable not only to election to state offices, but also to the election
>>of presidential electors, the legislature is not acting solely under the
>>authority given it by the people of the state, but by virtue of a direct
>>grant of authority made under Art. II, {sec.} 1, cl. 2, of the United
>States
>>Constitution." Slip Opinion at 4.
>>
>>The legislature acts pursuant to direct grant of authority from the US
>>Constitution. No member of the Court dissented from that proposition,
which
>>was, I think, a key part of the reasoning that led to the vacating of the
>>Fla. S. Ct. opinion, and which cannot therefore be considered dictum.
>>
>>Unfortunately I don't have any additional light to shed on the historical
>>understanding of Art. II, sec. 1, for purposes of an "originalist"
>>interpretation. If I get a chance to do so, I will do more research on
that
>>point and see if I can put something together for publication.
>>
>>Again, my thanks to Bryan. He and I have disagreed often, but his
>>graciousness, candor and willingness to reconsider his views is a good
>>example for all of us.
>>
>>Mark S. Scarberry
>>Pepperdine University School of Law
>>mark.scarberry at pepperdine.edu
>>
>>
>>-----Original Message-----
>>From: Bryan Wildenthal [ mailto:bryanw at TJSL.EDU <mailto:bryanw at TJSL.EDU> ]
>>Sent: Monday, December 04, 2000 3:57 PM
>>To: CONLAWPROF at listserv.ucla.edu
>>Subject: Re: U.S. S.C. Intervention into Florida Dispute
>>
>>
>>Further reflection and examination of the language of the US Supreme
>Court's
>>McPherson v Blacker opinion, especially the passage highlighted in the
>>Court's per curiam just handed down in Bush v Palm Beach, now persuades me
>>that there is at least some language in that case pointing to what I would
>>call the Scarberry/Scalia, or legislative-supremacist, reading of Article
>>II:1:2.  Mark Scarberry's reading of McPherson, not mine, may indeed be
the
>>most persuasive.  However, for reasons sketched out in prior postings and
>>which I may convert into something publishable, I am still (indeed
>>increasingly) persuaded that that is the wrong reading of Article II:1:2
>>itself.  [snip]
>>
>>Since I have no doubt the Florida Supreme Court will now take its cue from
>>the US Supreme Court's oral argument and per curiam, and will
>"appeal-proof"
>>its decision as an ordinary act of statutory interpretation (disclaiming
>the
>>assertedly verboten state constitutional reliance), we may not get a
>>definitive resolution of this issue any time soon.  Even Larry Tribe
seemed
>>disinclined to strongly push any reading of Article II:1:2 such as I am
>>suggesting, and indeed, unless I misread his argument, he expressly
>conceded
>>at one point that a state could not, by its constitution, purport to
>control
>>the legislature's Article II:1:2 power (a concession I would not have
>made).
>>But I think the facts of Bush v Palm Beach illustrate how counterintuitive
>>and even silly are the consequences of the legislative-supremacist reading
>>of Article II:1:2. [snip]
>>
>>[snip] I am, however, not yet up to speed on whatever specific evidence
>>of original understanding may be available (whatever weight that should
>>have).  My thanks in advance to Mark for any enlightenment he can offer us
>>on that score.
>>
>>Bryan Wildenthal, Thomas Jefferson School of Law
>>
>>> -----Original Message-----
>>> From: Scarberry, Mark [ mailto:Mark.Scarberry at PEPPERDINE.EDU
<mailto:Mark.Scarberry at PEPPERDINE.EDU> ]
>>> Sent: Thursday, November 30, 2000 2:53 PM
>>> To: CONLAWPROF at listserv.ucla.edu
>>> Subject: Re: U.S. S.C. Intervention into Florida Dispute
>>>
>>>
>>> At some point I will reply in detail to Bryan's description
>>> of McPherson v.
>>> Blacker, but don't have time to do so now. For now I will
>>> just note that I
>>> think he is misreading the US Supreme Court's opinion. It includes an
>>> apparently favorable quotation of federal legis. history to
>>> the effect that
>>> a state constitution cannot override the legislature's power
>>> under Art II,
>>> sec. 1. The reference to the US Supreme Court not being able to review
>>> matters of state law does not mean that a state const.
>>> restriction on the
>>> legislature's power would be a matter of state law. It simply
>>> means, as I
>>> see it, that the US S. Ct. can't review the state s. ct.'s
>>> interpretation of
>>> the state constitution. That is why the US S. Ct. had to
>>> reach the federal
>>> question whether the election of electors by district
>>> violated Art II, sec.
>>> 1. Of course had it violated Art II, sec. 1 then it would not
>>> matter what
>>> the state constitution provided. Since it did not violate Art
>>> II, sec. 1 the
>>> US S. Ct. affirmed. But that does not mean that the US S. Ct.
>>> thought the
>>> state constitution could bind the state legislature's
>>> exercise of its power
>>> under Art. II, sec. 1.
>>>
>>> The Court's recitation of the history of selection of
>>> electors by state
>>> legislators (without any concurrence of any governor) is
>>> interesting, and I
>>> think it is compelling evidence that the legislature holds
>>> the Art II, sec.
>>> 1 power by itself.
>>>
>>> We'll see what the present US S. Ct. makes of McPherson soon.
>>>
>>> Mark S. Scarberry
>>> Pepperdine University School of Law
>>> mark.scarberry at pepperdine.edu
>>
>Professor Robert M. Ackerman
>Penn State - Dickinson School of Law
>150 South College Street
>Carlisle, PA 17013
>
>Phone:     717-241-3535
>Fax:          717-240-5126
>e-mail:      bxa9 at psu.edu
>
Professor Robert M. Ackerman
Penn State - Dickinson School of Law
150 South College Street
Carlisle, PA 17013

Phone:     717-241-3535
Fax:          717-240-5126
e-mail:      bxa9 at psu.edu

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