The "Problem" with the Spending Power [long]

[Rebecca E. Zietlow]

What is the significance of the provision in Article I, Section 4, that
the state shall determine the time, place and manner of elections -
admittedly, that section applies to elections of Senators and
Representatives, not the president, but doesn't it imply that time,
place and manner of federal elections in general is the province of the
states?  As to presidential elections specifically, Article II says "the
States shall appoint . . a number of electors."  I know that the Court
in Baker v. Carr said that the political question doctrine is a matter
of separation of powers, not federalism, but isn't there an aspect of
federalism that counsels that the political question doctrine should
have applied to Bush v. Gore?

-----Original Message-----
From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
Sent: Monday, August 27, 2001 7:55 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: The "Problem" with the Spending Power [long]


The mention of Bickel in this thread prods me to ask whether the Article
II question in Bush v. Gore should have been treated as a political
question.  In the excerpt from a draft article I'm working on for a
University of North Carolina symposium, I argue, or suggest, that the
Article II question does not present a political question if one applies
the criteria in Baker v. Carr.  A later passage in the draft also
suggests that Bickel's account of the doctrine *would* lead one to think
that the Article II question was a political one in his (though not in
today's Court's) sense.  Anyhow, I'd be interested in the views of
list-members.  (I expect to finish a rough draft this week, and would be
happy to e-mail the draft to those who would like to see it.)

Excerpt (without footnotes):  Is there a demonstrable textual commitment
of the Article II question to Congress?  The relevant clauses are in the
Twelfth Amendment.  The political question argument gets its force from
the provision on counting the ballots cast by the electors:  "The
President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates and the votes shall then
be counted."  The Constitution says that the Senate and the House shall
be present, and says nothing about judges having any role.  Further, if
no candidate has a majority of the electoral votes cast and counted (by
whatever means), the choice of who is to become president devolves upon
the House of Representatives.  So far, then, the Twelfth Amendment does
not seem to contemplate a role for the courts.

There is more to say, however.  Start with the passive voice:  "shall be
counted."  Does the constitutional text commit to anyone in particular
resolution of disputes over which votes should be counted?  Here the
problem is analogous to that in Goldwater v. Carter:  There the
Constitution said something about entering treaties but nothing about
getting out of them; here the Constitution says something about counting
electoral votes but nothing about what to do when someone says, "This
isn't a valid vote."  In Goldwater, then-Justice Rehnquist treated
constitutional silence as supporting the conclusion that the political
question doctrine made nonjusticiable the claim that the Senate had to
participate in treaty abrogation.  Perhaps, however, the foreign affairs
context made Goldwater special for Justice Rehnquist.  The domestic
context of Bush v. Gore may have allowed him and Justices Scalia and
Thomas to treat the constitutional silence over resolving disputes over
electoral votes as permitting courts to exercise their traditional role
of interpreting the Constitution, as Justice Powell said in Goldwater.

With this view of the Twelfth Amendment in hand, we can examine a
simpler defense of the proposition that the Constitution did not commit
the Article II claim to Congress.  The first words of the Twelfth
Amendment are, "The Electors shall meet in their respective states."
The dispute in Bush v. Gore can be put as one over identifying exactly
who the electors were, and nothing in the Twelfth Amendment suggests
that resolving disputes over identity is committed to Congress.  The
electors referred to in the Twelfth Amendment are the Bush electors if
the Florida Supreme Court impermissibly displaced the legislature's
scheme for identifying electors.

It is at the least not obvious that the Constitution contains a
demonstrable textual commitment of the Article II question to Congress.
The availability of judicial standards to determine whether the Florida
Supreme Court so deviated from ordinary statutory interpretation as to
displace the legislature as the body defining the manner of selecting
electors is clear, no matter how controversial the application of those
standards might be.  It involves no "initial policy determination," and
of course there was no "political decision already made" that counseled
in favor of "unquestioning adherence."

The only component of the Baker v. Carr standards that might support the
conclusion that the Article II claim presented a political question,
other than the "textual commitment" standard, is that "undertaking
independent resolution" might "express[] lack of the respect due
coordinate branches of government."  After all, nothing in the
Constitution says that Congress cannot resolve disputes over who the
electors are or over which votes should be counted.   Further, the most
cogent retrospective defenses of Bush v. Gore are that the Court acted
properly to avert a constitutional crisis.   Yet, that crisis would have
consisted of actions by one of the political branches, and perhaps
both.  Suggesting that the courts must act because the political
branches would, if left alone, provoke a constitutional crisis seems
rather close to expressing a lack of the respect due those branches.