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

[Bryan Wildenthal]

I agree with much of Tobias Wolff's very thoughtful posting, especially that
"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."  I would go farther and say that I
don't see why there would ever be any textually compelled or structurally
logical reason to read Art II:1:2 as superseding state constitutional
limitations.

Oddly enough, however, I disagree with part of what my friend Tobias has
written.  I think Art II:1:2 is clearly a "grant" of power to state
legislatures.  While I agree states generally enjoy "plenary" powers except
as limited by the US Constitution by rights guarantees or delegations of
federal power, I do *not* agree that such state plenary powers extend to
matters involving federally  created offices, officers, or functions.  This
was the main point, as I recall, of Justice Stevens's majority opinion in
Term Limits (with which I happen to strongly agree), which held that there
is no residual, plenary state authority over qualifications of congressional
representatives.  Likewise, there is no residual, "plenary" state authority
over presidential electors or elections, offices and functions which did not
exist until created by the US Constitution.  Only by the affirmative grant
of power in Art II:1:2 were states empowered to do anything in regard to
presidential elections.  Tobias's argument seems reminiscent of Justice
Thomas's dissent in Term Limits (not that that's necessarily a bad thing!).

The separate debate between Mark Scarberry and me, of course, is over what
is the scope and extent of that power, and whether it is constrained by the
state's own constitutional limitations.

I strongly agree with Tobias that Art II:1:2, (aside from, as I think,
granting certain power to the state legislatures), is also, more
importantly, a *limitation* on *federal* power.  By removing a certain
subject from federal purview and vesting it in the states, Art II:1:2 BOTH
limits federal power AND grants state power.  It seems to me that reading
Art II:1:2 as embodying a federal constitutional rule of state separation of
powers, overriding a state's own internal allocations, definitions, and
limitations of its legislative power, is quite at war with that broader,
federal-limiting design of Art II:1:2.

Bryan Wildenthal, Thomas Jefferson School of Law


-----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


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