The Supreme Court has agreed to take up a case that addresses something called the “independent state legislature doctrine.” I discussed this with a few people on Twitter several days ago, after I declared that the doctrine looks to me to be a straightforward reading of relatively clear constitutional language. No! many people assured me. This doctrine is crazy. It is radical. It is insane. And Trump is going to use it to steal the next election!
Well, that sounds like something worth discussing!
I have probably worked harder on this piece than any newsletter I have done yet, and at 6,000+ words I’m still only about halfway done. Like my other pieces where I break my back writing thousands of words of analysis, I make a very substantial part of it available to all. And for many people, that’s going to be enough. But some people want a deeper dive into the controversies, and that is available to the paying subscribers.
Here is an excerpt from the free portion:
So what does this wacky independent state legislature doctrine say? Well, it says that when the Constitution uses the phrase “the Legislature thereof” in the above passages, it refers to the state legislature and not the state’s entire tripartite political structure, including the judiciary and the executive.
That’s it. That’s the whole crazy theory: that the word “legislature” means “legislature.” Damn those Federalist Society types!!!1!!!
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Now, of course, it’s not entirely that simple. There is a whole cottage industry of commentary out there designed to convince you that the word “legislature” doesn’t really mean “legislature,” and you may or may not be surprised to learn that these arguments are not always completely insane. I find some of them supremely unpersuasive and others slightly more plausible. If you’re going to discuss this issue intelligently, you should know what these arguments are. Some of these arguments are addressed today, and some will be addressed in a future newsletter.
And here is an excerpt from the paid portion:
The most common argument I see against the independent state legislature doctrine is that it is incompatible with the structure of our government. I recently discussed the topic with several smart people on Twitter, and I’m going to try to restate their contention in the strongest possible terms before I refute it.
I see two possible arguments for their position:
1. Normal state government processes — such as a governor’s veto and judicial review by state courts — must necessarily play a role in constraining the state legislatures, because state legislatures are a creation of state constitutions, and a state cannot surrender powers in a way that conflicts with its own constitution.
2. When the framers used the phrase “the Legislature” in the Electors Clause, as a matter of the original historical understanding of that phrase, “the Legislature” was understood to mean “the state legislature subject to the normal constraints of state government, including the veto power of the governor and judicial review by state courts.”
Today I will address only Argument #1.
. . . .
I debated both arguments on Twitter with smart people. Our own aphrael stated Argument #1 in this way: “the federal government cannot authorize a state to act outside of the state’s constitution, because the federal government only has the powers expressly granted to it by the states, and no state can grant itself the power to act outside of its own constitution.”
. . . .
I find these arguments wholly unconvincing, largely because of a provision in the federal Constitution called the Supremacy Clause, which is found in Article VI, Clause 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
. . . .
aphrael’s argument from above basically means the Supremacy Clause is null and void. Remember his argument: “the federal government only has the powers expressly granted to it by the states, and no state can grant itself the power to act outside of its own constitution.” Therefore, he appears to argue, no state can grant the federal government the power to do anything inconsistent with its own state constitution. That assertion stands in complete contradiction to the Supremacy Clause, which says that states have granted the federal government the power to do certain things, and to the extent that these grants of power contradict state constitutions, the state constitutional provisions have no effect.
I still have much more to come on this, including a deep dive into the Supreme Court precedents on the issue.