The "Problem" with the Spending Power [long]

[John C. Eastman]

You have overlooked the next clause in Art. I, sec. 4, which says: "but the
Congress may at any time by Law make or alter such [Time, Place & Manner]
Regulations ...."
Congress designated the first Tuesday in November for its elections.

But the relevant clause is in Art. II, sec. 1:  "The Congress may determine
the Time of chusing the Electors, and the Day on which they shall give their
Votes; which Day shall be the same throughout the United States."  And the
State legislature, exercising its Art. II power to determine the "manner" in
which electors are appointed, provided that the Secretary of State "shall"
certify the results of that election within 7 days.  We got into this mess
by a Florida court ruling that did not honor the decisions of the political
branches to which this job had been assigned.  Its overly-broad
interpretation of Florida law voided the Florida legislature's certification
deadline and threatened to void Congress's vote casting deadline, which
would have resulted in Florida casting its electoral ballots non in
uniformity with the rest of the country.

Nonjusticiability is one thing, but when a lower court has already rendered
a decision in an arguably nonjusticiable controversy, what is a higher court
to do?

John Eastman
Chapman University School of Law

"Rebecca E. Zietlow" wrote:

> 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.
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