Author: Gerard Magliocca

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Hibernation Time

Today I got the tap on the shoulder from my publisher saying that the clock has started to run for the next round of edits on my Bill of Rights book.  So I’ll be posting less frequently for the next month or so.

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The Ninth Census and the Fourteenth Amendment

In prior posts I’ve outlined part of my argument that the laws regulating the apportionment of representatives among the states violate Section Two of the Fourteenth Amendment.  Before getting back to explaining that analysis and some of my research, I thought I’d discuss this fun find.

The first census conducted after the Fourteenth Amendment was ratified was run in 1870 by the Department of the Interior. In the instructions given to the census takers, they were asked to count the number of men who were citizens and over the age of 21 who were unable to vote pursuant to the language of Section Two. Here was the explanation given in those instructions:

Many persons never try to vote, and therefore do not know whether their right to vote is not abridged. It is not only those whose votes have actually been challenged, and refused at the polls for some disability or want of qualification, who must be reported . . . but all who come within the scope of any State law denying or abridging suffrage to any class or individual on any other ground than participation in rebellion, or legal conviction of crime. Assistant Marshals, therefore, will be required carefully to study the laws or their own States in these respects, and to satisfy themselves, in the case of each male citizen of the United States above the age of twenty-one years, whether he does or does not come within one of these classes.

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Section Two and the Political Question Doctrine

Let’s assume I can convince you (which I haven’t yet) that the federal apportionment statutes are unconstitutional because they ignore Section Two of the Fourteenth Amendment. Still, is that a political question that is not justiciable? If so, then my next paper won’t be of much practical value.  I think, though, that Section Two does not present a political question even though there are three or four lower federal court opinions (all more than fifty years old) saying that it does.

First, the only Supreme Court case where a Section Two claim was presented rejected that claim on the merits.  In McPherson v. Blacker, the Court held that state legislatures have broad authority to determine the method used to choose presidential electors. One of the issues that was addressed was whether Section Two of the Fourteenth Amendment limited that power directly, and the Court said no.  (So did the Michigan Supreme Court in the decision below.) There was no suggestion that Section Two raised a political question.  As a result, the subsequent lower court decisions that went the other way (none of which cite Blacker) are, in my view, just wrong on this point.

Second, these lower court decisions all predate Baker v. Carr (which reformulated the political question doctrine) and all involved Section Two in a collateral way that is distinguishable from the kind of challenge that I am contemplating.  In one Second Circuit decision, a man convicted for refusing to answer census questions argued that the census was unconstitutional because it did not ask questions about voting eligibility pursuant to Section Two.  The Court affirmed the conviction saying that Section Two presented a political question, but another way of looking at the case was that the entire census is not invalid (and the duty to respond is not erased) no matter what you think of Section Two.  In a D.C. Circuit case, a man convicted of failing to respond to a subpoena from the House of Representatives argued that the subpoena was invalid because that Congress was not elected consistent with Section Two. The Court rejected that with a political question argument, but on the merits that claim was very weak (what about every statute enacted by that Congress–was that also invalid?) And in a Fourth Circuit case, a man who was not allowed to run for Congress in Virginia argued that the state was not entitled to the number of representatives because of its poll tax.  Once again, this was called a political question, but on the merits no court was going to take this seriously at a time when the poll tax was adjudged constitutional (in 1945).

Third, there is a big difference between saying that something is not justiciable and that there should just be significant deference given by courts on the merits.  My view is that Congress cannot bar consideration of Section Two of the Fourteenth Amendment as it currently does. Once some consideration is permitted, though, then exactly how that is done or what standards are used rest within Congress’s discretion with few exceptions.  The Court has ruled on other cases involving the apportionment process for the House of Representatives and deferred to what Congress did–the same would probably be true here.

Tomorrow I’ll go back to the statutes are try to tie this together.

UPDATE:  Now I’m not so sure that the McPherson part of this post is correct.  The better reading may be that no Section Two claim was presented in that case.  I need to obtain the briefs, which will take some time.

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Section Two of the Fourteenth Amendment and the Census

My research into the reapportionment process is still ongoing, and I’ve been working through the following problem:  Is the Commerce Department’s failure to undertake a Section Two review as part of its reapportionment duty unlawful or is it the result of an unconstitutional statute?

One way of thinking about the issue is that Congress delegated its Section Two authority to the Commerce Department in the relevant statutes, but the Department has refused to exercise that power and perform its designated function. Here is the most straightforward argument on that score–2 U.S.C. Section 6 provides:

Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State

This statute was enacted by Congress in 1872 and closely follows the language of Section Two. Since the Commerce Department has never tried to apply this provision or examined whether it should be applied, perhaps the answer is that the Department is just not following the statute.

But this analysis is not so straightforward. There is a strong case that 2 U.S.C. Section 6 is unconstitutional because of its use of the word “male.” Though this is what Section Two says, a statute that says makes an explicit distinction based on sex must satisfy heightened scrutiny under the Equal Protection Clause. 2 U.S.C. Section 6 cannot meet the standard, especially given that the choice of the word male in the Fourteenth Amendment rested in large part on the fact that no state allowed women to vote. Thus, the Commerce Department is probably right in declining to enforce this law or collect “male-only data” out of concern that they would be acting unconstitutionally.

What about the other statutes that govern reapportionment? More on that next week.

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Some Thoughts on Judge Gorsuch’s Nomination

A colleague of mine once said that in the first half of your career you are trying to figure out what is right. In the second half, you are trying to convince everyone that you are right. I guess I’m still in the first stage, and in that spirit I want to make some observations about Judge Gorsuch. (For the record, I think that he should be confirmed by the Senate.)

First, I think that his nomination shows that originalism is alive and well.  After Justice Scalia died, some people (like Eric Posner) declared that philosophy dead on the assumption that nobody else who cared about interpreting the Constitution in that way would be confirmed. He was wrong. The elevation of Judge Gorsuch does not make the Court an originalist institution, of course, but there could be more Trump appointments in the coming years–you never know.

Second, administrative law is poised for some major changes.  Over on Balkinization they just held an online Symposium in Adrian Vermeule’s new book Law’s Abnegation, which states as its central thesis:

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.

In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.

As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.

So this confident argument does not look so convincing now.  Judge Gorsuch has openly called for Chevron to be cut back or overruled, and he’s not the only one on the Court who feels that way.  Are there five votes to gut Chevron once he is confirmed?  I doubt it, but who knows.

One way of thinking about these two points is that a little intellectual humility goes a long way. The other is that when everybody says buy, it’s probably time to sell.

 

 

 

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The Twenty-Fifth Amendment and Mental Illness

There is a fantasy making the rounds that the Twenty-Fifth Amendment will be invoked to remove the President from office because he is “unable” to discharge his duties.  This is just one of the many silly attempts to find a constitutional silver bullet to avoid the reality that there will be four years of this Administration (rogue electors, Emoluments Clause, impeachment, etc.).

Still, I came across an interesting article by Robert Gilbert that was published in 2010 by Fordham Law Review.  He pointed out, which I didn’t know, that at least two Presidents suffered from severe depression in office due to personal tragedies.  One was Franklin Pierce, whose son was killed in a train accident shortly before the Inauguration. The other was Calvin Coolidge, whose son died from a freakish staph infection after playing tennis at the White House.  Indeed, Coolidge’s passivity in office may have had less to do with ideology and more to do with grief and disinterest in work after his son’s death. In neither case, of course, was there a constitutional mechanism available for the President to step aside temporarily or be permanently relieved of his duties (short of impeachment). Even now, one can see that a comparable situation would present some really challenging problems that are different from the standard thought that a president could be physically disabled.

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In Light of Recent Developments . . .

I thought I would repost my favorite quote from John Bingham:

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.

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Interstate Representation and the Electoral College

Yesterday I posted about the advantages and drawbacks of expanding the membership of the House of Representatives. Let’s now focus on some structural aspects of this issue and think about whether partisan politics stand in the way.

One problem that others have pointed out is that the relatively small size of the House violates the spirit of the “one-person, one-vote” principle. The reason is that the average population of a House district now exceeds the population of our smallest states. Each state must get at least one member (under Article One of the Constitution) even though some of them would get less than one if you only looked at the population figures.  Take a simple example.  California has 53 House members and Wyoming 1.  But California (as of the 2010 census) has 66 times more people than Wyoming. This means that Wyoming is overrepresented or California is underrepresented. This does not rise to the level of a constitutional violation (at least not so far) but expanding the size of the House is a way of eliminating this disparity.

Another consequence of the small size of the House is that the unequal representation of the states in the Electoral College is getting worse.  Wyoming, for example, is overrepresented in the Electoral College because it gets two votes because of its two senators.  But it’s even more overrepresented (or the large states are more underrepresented) because Wyoming is, in effect, getting three electoral votes instead of something like 2.75.  Is this distortion large?  No, but it might have changed the outcome of the 2000 election. (I need to crunch numbers on that.)

If you enlarge the House and reduce the average population of each district, these problems would diminish or go away.  Would one party benefit from this disproportionately?  I don’t think so.  The state that would see the biggest increase in House members would be California.  But Texas would also benefit. Moreover, the partisan effect would depend in part on how the new districts would be drawn, which would in turn depend on who controlled each state’s government at the time.

In short, I don’t think that this sort of change would far a partisan roadblock the way, say, getting rid of the Electoral College will.

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Should the Membership of the House of Representatives Be Enlarged?

Another question I’m looking at in my reapportionment research (along with the Section Two issue discussed in my prior posts) is whether the current size of the House of Representatives is too small.  Since the 1910s, the House has had 435 members (except for a brief time after Alaska and Hawaii became states).  Over the past century, the population of the United States has trebled.  You can do the math–each representative now represents three times as many people as was the case in 1917. It is also fair to say that a Representative represents far more people than an equivalent legislator in other major democracies, such as Canada, Britain, Germany, etc.

What would be some benefits of adding, say, 200 more members to the House?

  1. Better constituent service.  You might think that if each member (on average) represented fewer people, members would be more responsive to the needs of his or her constituency.
  2. A reduced workload.  More members would mean less committee service for each member (if you assume that the number of committees stays constant).  That would also allow more time for helping constituents or just working on other matters.
  3. More viewpoints.  More members would bring more ideas to the table. If constituencies were smaller, you might also think that certain local perspectives that are not being represented now would get represented.
  4. Reduced cost of campaigning.  If each district was smaller on average, then the cost of running for the House would be reduced without any campaign finance reform.
  5. More competition.  In the initial election or elections after an expansion, you would be creating many new seats without an incumbent.  This would allow lots of new people into politics and give us something other than the usual “reelect most members” result that we get every two years.
  6. Better oversight.  Maybe you’d think that more members of the House would lead to more eyes looking at the executive agencies to hold them accountable.

What are some downsides of this proposal? Well, it would cost money.  (New offices, more staff, etc.) The transaction costs of legislative action would also go up, in that there would more people to negotiate with to get a majority for a bill, more time required for debate on the floor, etc. These do not strike more as especially strong objections, but I want to give that more thought.

Is there a partisan valence to increasing the number of House members that dooms the idea?  (In the way that there almost always is for enlarging the membership of the Supreme Court.) I’ll take that up in a separate post.

UPDATE:  I didn’t realize until now that the New Hampshire House of Representatives has 400 members.  This is an outlier among the states, but this does suggest that 435 could be too small for the entire nation.