The "constituting" of the legislature; was RE: A hesitant quest ion about BLACKER

[Scarberry, Mark]

I think Michael McConnell's suggestion is a very good one.

Let me tentatively sketch out a justification for his suggestion and amplify
on it a little.

The state constitution "constitutes" or creates the state legislature, just
as it creates the other branches of the state government and just as it
provides for checks and balances among the branches. Provisions of the state
constitution that define or "constitute" the legislature and provide for its
mode of action as a legislature are part of what the term "Legislature" in
the US Const. means.

We know, for example, that the US Const. contemplates that state
legislatures may have more than one house; the US Const. provides that
voters for the US House of Representatives shall be those persons qualified
under state law to vote for members of the "most numerous Branch of the
State Legislature." Art. I, sec. 2. See also Amendment XVII. Thus if a state
constitution provides for a bicameral legislature (as all states but one
have done, right?), then state "Legislature" as used in the US Constitution
refers to the bicameral legislature set up by the state constitution.

If the state constitution provides that the Legislature may act as a whole
only by approval of a measure by both chambers, then the state constitution
has "constituted" the legislature as a body which acts in that way, and I
think Michael is right that this manner of approval is part of the nature of
the legislature in that state. Thus the state Senate could not claim that it
alone can select presidential electors (or ratify a US Const. amendment
under Article V). Neither could the state house of representatives (or
"assembly" as we call it in Calif.) claim that actions are taken when a
majority of all legislators have approved. (E.g., 60% of the more numerous
branch plus 40% of the less numerous branch would equal more than half of
the total number of legislators, but it would not be an act of the
"Legislature.") On the other hand, if the Lt. Governor of the state is given
the role of breaking ties in the state senate, then this is part of how the
legislature acts as a body, and the Lt. Gov. would in effect be considered
part of the legislature for purposes of casting that tie breaking vote.

But a gubernatorial veto of a state legislature's action is not part of the
action of the legislature. Nor is the invalidation of a state legislature's
action by the state judiciary. Those are not actions of the legislature but
rather checks on the legislature's power. Of course that means that the
"legislative" power is not exclusively the state legislature's, as we have
discussed before on this list. But the Founders were obviously aware that
checks and balances operated among the branches of a government, and thus a
check by one branch (e.g., the executive, by gubernatorial veto) on another
branch (e.g., the legislature in passing a bill)would be considered an act
of the former branch (the executive) rather than an act of the latter branch
(the legislature).

This would suggest that when the US Const. grants power to a state
"Legislature" to act, any provision of the state constitution that provides
a check on the state legislature's power by way of gubernatorial veto or
judicial review (or popular vote by way of initiative) is irrelevant. The
"Legislature's" act does not include any of these matters.

Because the US Const. grants to the state "Legislature" the power to act on
ratification of US Const. amendments, the state constitution cannot give
power over that choice to any other branch or even to the people as a whole.
I believe that is very nearly the holding of Hawke v. Smith, (US S. Ct.,
1920). I have suggested in my original post on this subject and in numerous
responses to others' posts that the same is true of Art. II, sec. 1, as
McPherson v. Blacker strongly suggests. The Smiley case (US S. Ct. 1932?)
applies a different analysis to Art. I, sec. 4, but that is a much more
limited power granted to the state legislatures than is the Art II, sec. 1
power. One reason for my saying that is that, at least as originally
considered, the Art II sec 1 power includes the power to select the
presidential electors--that is a much broader power than the Art I sec 4
power to determine how elections are to be held in which another body--the
voters--choose US House members. Thus I think Hawke is more analogous than
Smiley to our case.

To the extent a state constitution attempts to control specifically how a
state legislature exercises its power under Art II, sec. 1, some body other
than the legislature is impermissibly attempting to exercise the power
granted to the legislature to determine the manner of selecting presidential
electors. To the extent that a state constitutional provision defines or
constitutes the legislature or defines in general what it means for the
legislature to have acted (e.g., by majority vote of both houses), then the
provision is not an impermissible exercise of the Art II, sec. 1 power by
another body.

If the legislature decides that the manner of selecting electors shall
include some action by another branch of the state government, then that is
a permissible delegation of power. But McPherson v. Blacker (and the above
analysis) suggests that a legislature may act alone to reclaim any delegated
power. Reclaiming of that power is an exercise of the Art II, sec 1 power
and thus, on the above analysis, is not subject to gubernatorial veto, state
const. law judicial review, or any specific provision of state law that
would limit the ability of the state legislature to act with regard to
presidential electors.

Whether the Florida legislature can act to reclaim the power now depends, I
think, only on whether such an action is prohibited by the US Const
provision granting Congress the power to set the date on which presidential
electors shall be chosen. In turn, that makes it crucial to determine
whether the state (in the midst of this confusion and continuing contests)
failed to select electors on Nov. 7 per 3 USC sec. 5 (or is it 15?). And
that raises the question whether the determination of "failure" is
justiciable, or whether it is a question in the first instance for the state
legislature and ultimately for the US Congress.

Mark S. Scarberry
Pepperdine Univ. School of Law



-----Original Message-----
From: Michael McConnell
To: CONLAWPROF at listserv.ucla.edu
Sent: 12/7/00 9:39 AM
Subject: Re: A hesitant question about BLACKER

I share Garrett Epps's uncertainty about the reach of the principle that
the
state constitution is irrelevant to the legislature's exercise of its
Article II authority with regard to the choice of electors. Here is a
stab
at an intermediate position, that may or may not be coherent: The
legislature is subject to all background rules of the state
constitution,
but not to any rules specifically directed at the question of how to
choose
electors. Thus, when the legislature imposes a deadline for vote
counting,
the deadline is the deadline. But if the constitution provides that a
quorum
of the legislature consists of a 2/3 majority, or that all proceedings
of
the legislature must be open to the public, these provisions control
even
such matters as the legislative determination of how electors should be
selected. Does that distinction help?

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: Garrett Epps [mailto:gepps at LAW.UOREGON.EDU]
> Sent: Thursday, December 07, 2000 8:49 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: A hesitant question about BLACKER
>
>
> I have now read the first four pages of Mike's letter (only
> because that
> was all I could  download), and of course I know what was said in the
> letter I signed. I have a question about the analysis of the issue in
> BLACKER and in the Supreme Court's opinion in BUSH.  I raise
> it on this
> list somewhat hesitantly because it seems to me that the atmosphere is
> somewhat overheated and by even admitting uncertainty I may be laying
> myself over to this very remarkable attack on my right to
> have signed a
> letter to the Legislature at all--and of course I may also be open to
> attack because when I was a member of the Bat Patrol of Troop
> 718 of the
> Boy Scouts of America I took an oath in 1963 to "do my duty to God and
> my country and to obey the Scout Law at all time," and this may lay me
> open to the attack of being a member of a conspiracy to
> ignore the law.
> But in hopes that the issue can be separated from the
> legitimacy of the
> questioner, here is my question:  Can the interpretation of Article II
> and BLACKER as suggested by the per curiam in BUSH be perspicuously
> correct?  As I read the analysis, it suggests that the Florida
> Constitution is irrelevant to litigation over legislative
> procedures for
> choosing presidential electors, because that authority is given by the
> US Constitution in terms that oust the state constitution
> from governing
> the decisional procedures.  Why doesn't this argument prove too much?
> At its most basic level, is it not a fact that the Florida State
> Legislature is a creature of the Florida Constitution?  The US
> Constitution does not create or recognize any state
> legislature.  Let us
> suppose that the executive committee of Opa-Locka Odd Fellows
> Lodge #17
> holds an emergency meeting and proclaims itself "the true Florida
> Legislature," and then votes to throw out the results in toto
> and award
> the state's 25 electoral votes to Ralph Nader.  How can any
> decisionmaker--be it Congress, a state court, or the US Supreme
> Court--decide whether the commitee is the real Florida Legislature
> without looking at the state constitution?  There is nothing in the US
> Constitution that decides the issue (with the possibie
> exception of the
> oracular Guaranty Clause).  Let us suppose instead that the
> legislative
> majority and the governor decide that the choice of electors will be
> made by only that subset of the Legislature who are members
> of the Green
> Party?  Or that all members of the minority are herby
> dismissed from the
> legislature and replaced by the candidates whom they defeated in the
> last election?  (These examples seem far-fetched, but they aren't that
> different from issues that arose during the Hayes-Tilden
> imbroglio.) How
> can we ascertain that this is not THE Florida Legislature without
> reading the state constitution, with its proclamation that popular
> sovereignty and the right of universal suffrage are the constitutive
> basis of government in Florida?  In other words, isn't what HLA Hart
> might call the rule of recognition supplied by the Florida
> Constitution--and wasn't at least this much relevance of the state
> constitution clearly contemplated by Article II?  And if that is the
> case, then isn't it relevant in other contexts whether the Legislature
> has exercised its authority as granted by the people under their
> constitution?  Could the Legislature simply proclaim the state
> constitution irrelevant to interpretation of its decisions about
> presidential electors, whether those are made beforehand in statute or
> after the fact in an actual designation of the electors?  In the first
> case, does the Legislature simply by remaining silent about judicial
> interpretation exclude judical interpretation of the statute when and
> only when it pertains to selection of presidential electors?  If
> judicial INTERPRETATION is not ousted, then how can the state court
> interpret the statute without reference to the constitution
> that granted
> the legislature its authoritative priority over Opa-Locka Odd Fellows
> #17?  If the Legislature's statute violates the rule of
> recognition that
> grants its authority, can the US Constitution grant it that authority?
> And is it not a somewhat reductive reading of Article II to
> suggest that
> any touch of state constitutional adjudication in some
> way--like the old
> law of hypodescentt in the South I grew up--fatally taints an
> interpretation of statute and exercise of equitable power by a state
> tribunal?  The language in BLACKER is far from
> conclusive--and isn't it
> dictum in any case?  By posing the question as it has, hasn't the US
> Supreme Court turned its back on the usual canons of constitutional
> interpretation--it is a CONSTITUTION we are expounding--and
> instead read
> both Article II and a rather obscure past decision in a kind of
> mechanical statutory manner?
>
> I am not trying to bait anybody with these questions.  They seem
> genuinely interesting to me.
> --
> Garrett Epps
> Associate Professor
> University of Oregon Law School
> 1221 University of Oregon
> Eugene OR 97403
> (541) 346-1587
>
> Trouble sleeping?  Try my latest works:
> http://www.law.uoregon.edu/faculty/epps/default.html
>