Author: Gerard Magliocca


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.


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.


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.


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.




The Supreme Court Decision on Brexit

Today the British Supreme Court held (by an 8-3 vote) that Parliament must approve the invocation of Article 50 for the country to leave the European Union. I think this conclusion is correct, but the decision does open up at least one can of worms.

The House of Commons will almost certainly approve such a bill, but what about the House of Lords?  The Lords still have the power to delay the enactment of any legislation passed by the Commons for up to one year. If they do that (and they well might, given that the Lords are far more pro-EU than everyone else), then that would delay the start of the exit process until 2018. I wonder what elected representatives and voters will think about that if it happens.


The Duty Imposed by Section Two on the Commerce Department

In two posts, I observed that the current statutes regulating the reapportionment of the House of Representatives say nothing about how Section Two of the Fourteenth Amendment–which is still in force–should be taken into account when representatives are allotted to the states after each census. These statutes cannot lawfully prohibit Section Two from being taken into account, but they need not be read as doing so. They can instead be read as delegating authority to the Commerce Department to exercise that constitutional duty. Was that duty fulfilled following the last census?  No, because the Commerce Department ignored Section Two entirely.  Is there any remedy for that now? No. But there should be after the next census if the same thing happens.

A fine Note by Michael Hurta that appeared in the Texas Law Review about two years ago made a similar argument about the Commerce Department’s authority and duty to conduct Section Two review. What do I mean by review?  I mean that the Commerce Department must collect data on people who are eligible to vote under the Constitution but are not permitted to vote by a state. If they decide that no adjustment to representation is warranted by that data, then that conclusion should be reviewed deferentially under ordinary administrative law principles.  But such a review must, in my view, be done.  If not, I would think that almost every state would have standing to say that its allotment of representatives after the next census is invalid (maybe they are entitled to one more, for instance, if somebody else should be getting one fewer).

Here’s one problem though: The Commerce Department is not the right agency to conduct this analysis.  Suppose questions are included on the census about past voting history and someone claims that they were turned away at the polling place.  How could this be verified?  Census data is confidential, in large part to encourage people (even those here illegally) to respond. Moreover, the DOJ is the place where you find experts on voting rights–not the Commerce Department.  Thus, I think all Commerce could do is say “X number of people in a state told us that they were denied the right to vote for what appears to be an invalid reason.”  Now maybe that number would be so small as to be irrelevant, but suppose it were large and Section Two was invoked.  Congress would be free to reject the Department’s conclusion that a state’s representatives should be reduced based on a disputed question of fact, but partisan deadlock might prevent Congress from acting at all.

Consequently, I’m wondering if the reapportionment statute should be amended to require the DOJ to conduct a Section Two review following the census. Section Two does not require an enumeration of the disenfranchised in the way that the Census requirement in the Constitution does.  But I want to think about that some more.


The Legality of a Border Tax Under the WTO

I have a question for those of you who write about or practice international trade law.  (As an aside, congratulations!  Your area is about to become very exciting.)

Suppose that Congress follows through on the President’s idea of imposing a tax on goods manufactured abroad by an American firm that closed a factory here and built the foreign factory.  Would that pass muster under the WTO?  I have no idea, which is why I’m curious.


Unintended Consequences and the Bill of Rights

As you know, I’m working on a book about the Bill of Rights.  The book is currently in publisher’s limbo, by which I mean that I’ve turned in the first draft and am waiting for the manuscript to be returned to me for the next round of changes.  Until then, what will I be mulling over?

First, I want to see what (if anything) President Trump has to say about the Bill of Rights.  My book ends with Bush 41’s speech in 1991 marking the bicentennial of the Bill of Rights.  (I’ve posted about that speech before.)  Since then, there really haven’t been any significant presidential statements on the Bill of Rights, and no real celebration was held to mark the 225th anniversary of ratification this past December. But maybe the new President will say something that I will need to include.

Second, I’m wondering about a question posed by one reader of the draft.  To what extent was the expansion of civil liberties in the 1940s an unintended consequence of the way in which FDR talked about the Bill of Rights?  One argument in the book is that Roosevelt often used and emphasize the Bill of Rights to justify the New Deal and the growth of federal power to fight World War II.  If that’s true, then couldn’t you say that the wider embrace of the term and of the first set of amendments for a different purpose was in part an accident. I think my answer is “kind of,” but I need to give that more thought.


The Validity of Section Two of the Fourteenth Amendment

The other day I posted a hypothesis that the current apportionment of the House of Representatives does not comply with Section Two of the Fourteenth Amendment. Before explaining that further, I must address the threshold question of whether Section 2 is still part of the Constitution. This is a live issue partly because Professor Gabriel Chin (now at Davis) wrote an excellent article in 2004 arguing that the Fifteenth Amendment implicitly repealed Section Two of the Fourteenth. I do not find this claim persuasive though.

Here is why you might think that the Fifteenth Amendment repealed Section Two of the Fourteenth Amendment. Section Two allows states to deny African-American men the right to vote–the result is just that the state loses representatives.  But The Fifteenth Amendment says that the states may not discriminate on the basis of race for voting. Since these are inconsistent ideas, perhaps the best reading is that the Fifteenth Amendment superseded Section Two. Professor Chin’s article explains that some people also made this argument shortly after the Fifteenth Amendment was ratified.

Nevertheless, there are significant problems with this interpretation. One is that the Fifteenth Amendment talks only about race whereas Section Two is not so limited. Granted, the object of Section Two was primarily to encourage voting access by African-American men, but the omission of the word race makes the two texts somewhat different. A second, and more powerful objection to my mind, is that one year after the Fifteenth Amendment was ratified Congress and the Census Bureau spent a considerable amount of time thinking about whether and how Section Two should be applied. Not a word was uttered then that the Fifteenth Amendment had repealed Section Two (nor was anything said about that when the Fifteenth Amendment was debated).  This seems like pretty strong evidence that no repeal occurred.

This is not a complete response to Professor Chin’s arguments, which I guess I would have to save for an article, but the upshot is that I think Section Two is still the law. But what does this mean for how we conduct the census and apportionment?  That’s my next post.