Author: Gerard Magliocca


Strange State Constitutional Provisions

I’m reading through state bills of rights as part of my book research, so this may become a regular series.  Let’s start with Article One, Section 2b of the New Jersey Constitution, which states:

“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.”

So with respect to members of Congress, this clause is clearly invalid.  A state cannot recall a member of Congress before their term is up.  A state legislature could petition the relevant House of Congress and ask it to expel the member (that would trigger a special election), but the decision would rest there.

Now I suppose a state could hold a symbolic recall of a Representative or Senator (sort of like a vote of no confidence), but that seems odd.


The Anti-Novelty Doctrine

I’ve been catching up on what’s new in the law reviews, and I want to recommend Neal Katyal and Thomas Schmidt’s paper in Harvard on “Active Avoidance.”  Much of the article provides a well-deserved critique of the Court’s recent practice of reading statutes in absurd ways to avoid constitutional difficulties.  The paper also points out that in these cases the Court introduces new constitutional arguments in dicta to explain those alleged difficulties, which do not get adequate attention then but then get cited later as authoritative.

Another part of this article that deserves more scrutiny is its attack on the Court’s recent cases suggesting that a law which is novel should be presumed unconstitutional.  I’ve blogged in the past about this idea, which showed up in the Affordable Care Act case (on the individual mandate), the challenge to DOMA, and some other decisions.  I’m not sure how I come down on the “anti-novelty” doctrine, but it is true that this idea clashes with the general presumption of constitutionality.


The Certiorari Grant in Fisher

I’d been meaning to say something about the not-so-new affirmative action case, but writing a book review knocked me offline for a while.

The new grant of cert in Fisher is peculiar.  Media reports suggest that the last time around the Court was going to issue a stronger opinion curtailing the use of race-conscious admissions policies.  Faced with a sharp dissent from Justice Sotomayor, though, the majority backed down and (after extended wrangling) produced a brief opinion remanding the case to the Fifth Circuit.  Now we get another grant (after the Fifth Circuit reaffirmed its prior holding).

It’s worth noting that this second grant is problematic in a couple of respects.  First, there’s a certain waste of resources in going through a second round of briefing and argument in the same case.  Sure, the briefs will be freshened up a bit, and you have a new circuit opinion as well, but the Justices are largely spinning their wheels.  Second, there is the awkward fact that Justice Kagan is recused because she worked on the case as Solicitor General.  (Indeed, you would think that this is the last case that will prompt her recusal for that reason.)  Any other challenge to university admissions accepted by the Court would have been decided by all nine Justices–perhaps that would have better.  Finally, Fisher has always struck me as a poor vehicle for thinking about race-conscious admissions given the structure of Texas public schools and the way the UT plan was designed.

So what’s going on?  Could it be that the current majority (that is, the one that did go forward the first time) is aware that there may not be another opportunity to take a stand before there is a different majority?  Or is this a situation where (as with campaign regulation and the Voting Rights Act) the Court will use Fisher I as authority for a broader ruling in Fisher II, but was not comfortable doing that without a Fisher I?


Equal Constitutional Status

I want to pick up on a line of thought in the comment thread to one of my prior posts on separation of powers.  What do we mean when we say that the three branches are equal?  Probably we are saying that they have the same status.  For example, as Orin Kerr points out, each nation-state is equal to another as a sovereign.  We don’t mean by that, of course, they they have equal power.  We mean that they have equal rights in some respects and equal (dare I say it) dignity.

Let’s set aside the question of whether the Framers thought that the three branches were equal in this sense.  What I’m wondering is at what point interpretation based on status becomes fictional?  Here’s an example.  Are the two Houses of Parliament coequal?  You could say yes.  A bill must pass each house to become law.  Each House has its own chamber and its own rules.  But you could also say no.  The House of Commons can legally abolish the House of Lords.  The Lords cannot do that to the Commons.  That doesn’t look like coequality. So which is the better answer?

Federalism also complicates matters.  Nobody thinks that Congress and Delaware are of equal rank.  Nevertheless, Delaware has certain rights that Congress may not invade.  So the fact that an entity has autonomy does not make it equal in that formal sense.  Why couldn’t the same be true among the three branches?  Congress could be the superior branch, but it cannot do certain things to the others.

One answer to that is that the Supremacy Clause makes the hierarchy clear with respect to the federal government and states.  There is no equivalent text that says that Congress is the #1 branch.  At best, you’d have to say that congressional superiority (or the lack of coequality) is implied.  But coequality is also just a construction.  So why did people adopt that view?  Did the Framers have that view?  We’ll see.




What do the Constitutional Articles mean?

Before doing additional research on this subject, I want to say one more thing on the question of whether the Constitution established three equal branches. Perhaps the best way of asking the question is:  Why do we think that we have three equal branches?  The text does not say that, and it’s hard to find anybody who said that until long after the Founding.  Moreover, when you look at the powers distributed by the text, I don’t think that coequality is the best conclusion.

One answer is that each branch gets its own article.  If this is an important structural point, then that could lead to the inference that the three branches are equal.  Why, though, is that important?  You could just as easily say that Article I is longer than Articles II and III, which proves that the branches are not equal.

Another thought is that we think the three branches should be equal even though they were not originally understood that way.  Is this, though, within the range of acceptable interpretation?  I don’t know.


Hunting for “Three Coequal Branches”

This is a longer-than-average post about why we think that the Constitution establishes three equal branches.  As I’ve explained in some earlier posts, the text does not support that proposition, and at the Founding it’s hard to find anyone who said that the three branches were equal.  The Fourteenth Amendment also refutes that claim by reinforcing Congress’s position as the superior branch (more on that in a separate post).

What’s really surprising about my research thus far is the paucity of authorities that say that we have three equal branches.  Here’s what I’ve found so far (though, of course, the work goes on, the cause still lives, and the dream shall never die).

1.  Andrew Jackson appears to have invented the idea that we have three coequal branches.  (Take that–those who want him off the $20 bill.)  He made this argument in his Protest against the Senate Censure Resolution that attacked his withdrawal of deposits from the National Bank as unconstitutional.  Nobody, though, appears to have relied on his assertion afterwards, and no President made a similar claim until the 1950s.

2.  In 1864, the Supreme Court stated in dicta:  “It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government.”  Nobody cited this statement afterwards either (as far as I can tell).

Maybe that was because there were some major problems with the Court’s claim (in an opinion by Chief Justice Taney).  First, the Court was at the low ebb of its authority at that point (during the Civil War), and so its statement about coequality seems self-serving.  Second, the Fourteenth Amendment undercut the assertion that the Court was equal in title to Congress, as I’ll explain tomorrow.


3.  In Marshall Field & Co. v. Clark (1892), Justice Harlan wrote for the Court in a case where the issue was whether an Act of Congress was, in fact, an Act of Congress.  (In other words, did the same bill pass both houses of Congress?)  Harlan said:  “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”

This line was cited in two other opinions by Harlan, and my tentative conclusion is that he just cared about a lot about this idea, as he also wrote in 1911 that:  “The illustrious men who laid the foundations of our institutions deemed no part of the national Constitution of more consequence or more essential to the permanency of our form of government than the provisions under which were distributed the powers of government among three separate, equal, and co-ordinate departments,—legislative, executive, and judicial.”

Anyway, more work to be done.





The Guarantee Clause

Some attention is being given (or should be) to Footnote 3 of the Court’s opinion in the Arizona redistricting case, which states:

The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting challenge to referendum mounted under Article IV, §4’s undertaking by the United States to “guarantee to every State in th[e] Union a Repub­ lican Form of Government”). But see New York v. United States, 505 U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”).

Why add the “But See” cite?  Because the Court wants to invite litigants to try out a Guarantee Clause claim somewhere?  Maybe in a voting rights case?


Undue Burden and Federalism

Before saying more on the cases just decided, I want to throw out an observation about the Texas abortion regulations that were stayed by the Court yesterday.

Suppose that Rhode Island put strict limitations on abortions.  If that statute were challenged under the “undue burden” standard set forth in Casey, one response could go something like this.  “Hey, all of our neighboring state have broad access to abortion.  We’re tiny, and so getting from Providence to another state takes hardly any time or cost.  Therefore, no undue burden is being imposed.

Does this argument work?  The reason I ask is that in Texas the opposite is true.  It’s a huge state, many of the neighboring states do not have broad abortion access, and thus it would be costly and time-consuming to go elsewhere for an abortion.  Thus, you could say that an undue burden is being imposed.  If this is so, though, then wouldn’t you have to say that small states with a pro-choice neighbor would have greater leeway to restrict abortion than large states?