Balkinization: So who will attend the summit?

Comments:

For what it's worth this report says the president-elect would be included.

# posted by

Laura : 2:26 PM

That's nice, but what happens when the President and president-elect disagree. And which one will Brown and Sarkozy want to have a tete-a-tete with when crunch time comes?

# posted by

Sandy Levinson : 4:04 PM

Well, that's up to Brown and Sarkozy, now, isn't it?

I'm not the slightest bit averse to the President elect being brought along to watch, and even chime in on, these affairs. I'd only object to somebody pretending he had any authority prior to the 20th.

# posted by

Brett : 5:56 PM

Obama (or McCain) need not "pretend" if Bush were a patriot who would resign and give way. What Brett makes no attempt to explain is exactly why he wants George W. Bush to represent the US at a post-election "summit."

# posted by

Sandy Levinson : 8:12 PM

For exactly the same reason I would have wanted Clinton to represent the US precisely 8 years earlier, despite despising him with every fiber of my being:

Because he happens to be the President, and the other guy isn't, yet.

It's a matter of wanting the procedures in place to be followed, even when I don't like the proximate result, because I want others to follow them when THEY don't like the result.

It's the difference between having RULES for how a government operates, and suggestions that get chucked out the window when whoever is in a position to do the chucking happens to not like 'em.

Because, Sandy, I don't want to have something we call a "constitution", I want to actually HAVE a constitution. Which means following it even when I don't like it. And advocating that it be changed when I think it needs to be changed, instead of cooking up some hokey work around.

We have accumulated so many work arounds for parts of the Constitution somebody happened to not like, that our claim to have a constitutional form of government is a not particularly funny joke at this point.

No. More. Work-arounds. No. More. Fixes. No. More. Interpretations, adjustments, what have you.

Follow the freaking rules, or change them, or stop claiming to be a nation of laws, not men.

# posted by

Brett : 9:21 PM

I regret to say that Brett's position really doesn't make any sense. That is, I'm NOT TRYING TO WORK AROUND THE CONSTITUTION. The Constitution clearly does not prevent vice presidents or presidents from resigning. Nor have I ever, for a single instant, supported Bush's impeachment on grounds of his manifest incompetence. I think the Constitution is defective in not allowing a vote of no confidence, but I have never, for a single instant, suggested that Congress can just go ahead and declare no confidence and that the presidency thereby becomes vacant.

Both Agnew and Nixon resigned, and no one suggested they had a duty to remain in office until impeached. Ditto on Bush and Cheney: They have absolutely no constitutional duty to stay in office until January 20, though they do have a constitutional entitlement to do so if they wish. I deeply regret that, but I don't deny it, not for a single instant. But if they cared about the country, they would resign and enable the people's choice, as demonstrated in the November 4 election, to take office well before January 20.

And the 25th Amendment provides a way to fill vacancies if a VP resigns or dies. What I'm trying to demonstrate is that the Constitution itself, without any amendment or even any interpretive cleverness of the kind seen, say, in the Commerce Clause cases that Brett so dislikes, provides a perfectly fine solution. I'm perfectly happy to follow the rules established by the Constitution: a) vice presidents and presidents are free to resign; b) there are constitutionally set out procedures for replacing vice presidents and presidents in case of vacancies.

So what part of rule following does Brett not understand?

# posted by

Sandy Levinson : 10:58 PM

It's a "work-around", just like that interstate compact intended to make the electoral college go away, or the proposal to put boilerplate in all bills requiring agencies to spend according to legislative earmarks which didn't get included in the legislation, and so weren't voted on. It doesn't nominally violate the rules, but it is unambiguously an an attempt to circumvent them. Keep them from having effect.

And a particularly boneheaded attempt, relying as it does on Bush himself agreeing with YOUR assessment of him. Makes about as much since as McCain having a campaign strategy based on asking Obama at a debate if McCain wasn't, after all, the better man, and expecting him to say "yes".

Nobody who wasn't suffering from an advanced case of BDS would give your scheme a second thought, it's that ludicrous.

# posted by

Brett : 6:50 AM

I agree with Brett that the terminally deluded Mr. Bush is unlikely to put the country first by engaging in a completely constitutional act of resigning. He apparently applauds that; I do not.

# posted by

Sandy Levinson : 7:41 AM

What exactly is the problem with a work-around Brett?

Do you prefer having things broken and dysfunctional?

# posted by

Charles Gittings : 10:02 AM

Charles, work-arounds, being ad hoc creations rather than well thought out formal changes to the rules, typically have freaking enormous flaws.

Sandy's notion, for instance, founders on the real world fact that no actual politician who could make it to the Presidency would ever voluntarily relinquish power early. It's unrealistic in the same way as planning on winning the lotto is an unrealistic solution to paying your bills: Sure, it can theoretically happen, but no sane person would rely on it.

There are other problems with work-arounds, but that one problem is enough of a killer in this present instance.

Now, get back to me about Bush's existential incompetence when Carter's "misery index" reaches the twenties, ok? And when we're not talking about a scheme to replace Bush with somebody equally complicit in our problems.

# posted by

Brett : 12:48 PM

Brett:

It's a "work-around", just like that interstate compact intended to make the electoral college go away,...

But both follow the rules to the letter. And seeing as the Constitution allows states to chuse electors by whatever criteria they desire, including performance on "American Idol", it's hard to fault them for the relatively benign expedient of selecting them based on popular vote. Are you saying there's stuff in the Constitution that isn't actually in the text itself?!?!?

Cheers,

# posted by

Arne Langsetmo : 1:20 PM

Actually, I think both Brett and Arne are mistaken. The Constitution does, in fact, expressly prohibit interstate compacts without the consent of Congress. Article I, Section 10.

I suppose individual states can choose to select their electors according to the national popular vote, but a binding compact with other states where one state agrees to do so as long as the other states do as well violates the plain language of the Constitution.

# posted by

Steve M : 2:05 PM

Steve:

Actually, no binding agreement would even be possible because each state has exclusive control of it own laws. Such a consortium would be entirely voluntary. In order for it to be binding, you'd have to literally merge the member states into a single state.

Brett:

A bug is a bug, a fix is a fix, and a work-around is something you do when an actual fix isn't practical for some reason.

Like when you have a couple of utterly undemocratic flaws in your constitution but can't fix them because certain folks get an unfair advantage thereby which they're unwilling to give up. Before the Civil War that was slave owners, now it's Republicans.

# posted by

Charles Gittings : 2:35 PM

Steve M.:

Actually, I think both Brett and Arne are mistaken. The Constitution does, in fact, expressly prohibit interstate compacts without the consent of Congress. Article I, Section 10.

Not quite so clear. There is no specific agreement with other states (much less any particular state); it is rather a "condition antecedent".

Not to mention, the idea of "treaties" and "alliances" and such generally means something different from them passing such a law. And the part about "compacts" and "agreements" seems by the context to refer to military or mutual defence type arrangements, which is not the case here.

I'm sure that there are those that would argue that such a law, in effect, would be an implicit 'bargain' with others ("we'll do this if you do too"), but no one prevents any other state from joining in, nor prevents any states from refusing to join.

# posted by

Arne Langsetmo : 2:38 PM

"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States." Virginia v. Tennessee, 148 U.S. 503 (1893).

I agree that it is not crystal-clear, or this national popular vote initiative never would have gotten off the ground. But let's think about it for a moment, and put aside our shared distaste for the Electoral College. We know that the EC system was, in the first instance, a carefully negotiated compromise designed to give the small states an additional say in the process in order to encourage them to join and remain in the Union.

If we allow a handful of larger states to band together to do away with the Electoral College compromise, we endanger the stability which the original compromise was supposed to engender. You're essentially allowing a minority of states to amend the Constitution and alter the Presidential election process without the necessity of a formal amendment. This strikes me as exactly the sort of threat to federal supremacy that the Contracts Clause was intended to avert.

In this day and age, it's not clear what would happen if enough states were to ratify this compact. Would the non-participating states, particularly those small states that enjoy having a disproportionate degree of influence as a result of the Electoral College compromise, simply shrug and accept the new order of things? I'm not sure. It seems to me that it could be rather disruptive, and while I'm no fan of the Electoral College, I really think it's contrary to the spirit of the Constitution if a small number of states can do an end run around the amendment process like this.

# posted by

Steve M : 3:07 PM

This strikes me as exactly the sort of threat to federal supremacy that the Contracts Clause was intended to avert.

Nitpick: the phrase "contracts clause" is usually used to refer to Art. I, Sec. 10, cl. 1. The relevant clause here is in Art. I, Sec. 10, cl. 3.

As Arne has pointed out, this technically isn't a contract between states. Instead, it's a series of independent statutes with a clause containing a condition precedent. That's not to say the SCOTUS would approve it, just that it doesn't violate the literal text of the Constitution even if it does, perhaps, violate its spirit.

Ultimately, though, the real question is whether this threatens federal supremacy. It's hard for me to see how this could be true. Perhaps you could elaborate; what, for example, would the feds be unable to do that they can do now?

# posted by

Mark Field : 3:23 PM

Sorry, Mark, I meant to write Compacts but my fingers wrote Contracts. You know how it goes.

Here, the federal interest is in upholding the negotiated compromise that led to the founding of the Union in the first place. Let's assume, for the sake of argument, that if enough states were to ratify this agreement then the remaining states would revolt or something equally dire, because they love the Electoral College system that much. Surely the federal government has a strong interest in keeping the Union together.

I agree that it's not a compact in the sense of a written treaty, but an agreement can take many forms. If you pass a law that says "this law shall take effect if other states do X," that arguably constitutes an offer which other states are empowered to accept by passing the same law.

Let's postulate a more pernicious version of this scenario. If you add up the 11 biggest states (CA, TX, NY, FL, IL, PA, OH, MI, GA, NC, NJ) you get 271 electoral votes. So let's assume CA passes a law which says "our electors will go to the candidate who wins the popular vote in the 11 biggest states, provided the other 10 pass this same law." And then let's say the other 10 do pass the same law. In my view, these 11 states have now entered into a compact which effectively writes the other 39 states out of the presidential election process altogether. Maybe you disagree that this is a compact within the definition of Article I, Section 10, but would you really contend that the federal government is powerless to do anything about this?

Of course, the proposed NPV compact is not as awful as this, and maybe it would be no big deal to anyone. In that case, Congress can give its blessing to the agreement and there's no problem. But in the event Congress believes that rewriting the presidential election process in this manner poses a real threat to the Union, I believe they have the right to say no.

# posted by

Steve M : 3:40 PM

Steve M.:

If we allow a handful of larger states to band together to do away with the Electoral College compromise, we endanger the stability which the original compromise was supposed to engender.

There's nothing requiring the large states only to do this. In fact, the small states might "band together" in such a compact to defuse the "winner-take-all" powers of the larger states.

Cheers,

# posted by

Arne Langsetmo : 3:59 PM

Steve M.:

If we allow a handful of larger states to band together to do away with the Electoral College compromise, we endanger the stability which the original compromise was supposed to engender. You're essentially allowing a minority of states to amend the Constitution and alter the Presidential election process without the necessity of a formal amendment. This strikes me as exactly the sort of threat to federal supremacy that the Contracts Clause was intended to avert.

Not to mention, this assumes that states vote en bloc. But they don't have to do this (and don't; see NE and ME). If this "compact" is impermissible because it frustrates the intent of the Great Compromise, then states may not by themselves change their allocations from "winner-take-all" either. But they can (and in fact can allocate on the basis of a poker game (see, e.g., NV), or the mercantile market futures prices, should they choose to do so.

Cheers,

# posted by

Arne Langsetmo : 4:05 PM

Steve M.:

So let's assume CA passes a law which says "our electors will go to the candidate who wins the popular vote in the 11 biggest states, provided the other 10 pass this same law." And then let's say the other 10 do pass the same law.

As I pointed out, this proposed law specifies no specific states. All are free to participate ... or not, as they please. How does that change you analysis?

Cheers,

# posted by

Arne Langsetmo : 4:11 PM

It doesn't change my analysis at all, of course. I don't understand why you think it would.

If states are constitutionally free to enter into these sorts of arrangements, then my proposed 11-state scenario is just as constitutionally permissible as this National Popular Vote concept. The former is a more dramatic illustration, but it is offered in order to make clear that there is a federal interest in disallowing this sort of thing.

I don't really think it is defensible to argue that this is not an agreement or compact, notwithstanding that there is no written treaty involved. One state is making an offer to engage in certain conduct and specifying that other states can accept that offer by agreeing to engage in the same conduct. Imagine that Exxon announces "we will raise our gas price to $4 a gallon, provided enough oil companies with sufficient market power make the same promise." Clearly there's an agreement in restraint of trade being formed here, even though there's no formal contract between the oil companies. As Virginia v. Tennessee confirms, the Compacts Clause was intended to address the reality of the agreement, not to be restrained by the formalities of how the agreement was reached.

My experience has been that most people simply aren't interested in engaging this constitutional argument simply because they dislike the Electoral College and desperately want to find a way around it.

# posted by

Steve M : 4:31 PM

Steve M.:

It doesn't change my analysis at all, of course. I don't understand why you think it would.

If states are constitutionally free to enter into these sorts of arrangements, then my proposed 11-state scenario is just as constitutionally permissible as this National Popular Vote concept.

I'd note that if these same 11 states all went for the same candidate (and did en bloc allocation, which I guess you think they're free to do), they don't need the "compact" to achieve the same (or similar) results. Why is that permissible, yet it is impermissible to select an allocation that actually does count votes from the other states?

Stated another way, the very problem you see here is already inherent in the system....

Cheers,

# posted by

Arne Langsetmo : 4:44 PM

It's unclear to me if you're arguing just for the sake of it, or if you honestly believe it would be non-problematic if the 11 largest states agreed to a system that would shut out the other 39. But I'll note that I'm not Bart.

# posted by

Steve M : 4:56 PM

Here, the federal interest is in upholding the negotiated compromise that led to the founding of the Union in the first place. Let's assume, for the sake of argument, that if enough states were to ratify this agreement then the remaining states would revolt or something equally dire, because they love the Electoral College system that much. Surely the federal government has a strong interest in keeping the Union together.

Agreeing for the moment that the federal government does have such an interest, this is a different argument from the one you previously made. What you said, and what I asked you to explain, was how such an agreement might impact the supremacy of federal law over state law. I don't see any such effect.

Now, I suppose you could say that dissolution of the Union would have that effect, but that seems pretty far down the road to me. Secession isn't allowed; the proposed statutes don't violate any plain Constitutional text; and even if they did, secession wouldn't be the proper remedy. If the SCOTUS were to approve the laws, then federal supremacy would be upheld; same if SCOTUS struck them down.

I don't really think it is defensible to argue that this is not an agreement or compact, notwithstanding that there is no written treaty involved. One state is making an offer to engage in certain conduct and specifying that other states can accept that offer by agreeing to engage in the same conduct.

I'm going off hazy memory here, but I believe some of the Uniform Codes already do this and have been approved by the courts.

# posted by

Mark Field : 4:58 PM

Steve M.:

It's unclear to me if you're arguing just for the sake of it, or if you honestly believe it would be non-problematic if the 11 largest states agreed to a system that would shut out the other 39. But I'll note that I'm not Bart.

I'm arguing separately against two of your arguments (though you seem to intermingle the two). Your first is that such compacts are prohibited. This I says is not clear (which you admit), and I point out some reasons to think that such is not impermissible under the rules of the Constitution.

Your second argument seems to be that even if such quasi-compacts are not per se banned, that this one in particular ought to be, because it "may encroach upon or interfere with the just supremacy of the United States", quoting from one case. This argument of yours is very shaky, as the "supremacy of the United States" is in no way impinged by such. But you seem to elide this into an argument that such quasi-compacts are illegal because they frustrate the intent of the Founders expressed through the Great Compromise (and the subordinate allocation of electors). But I point out that such quasi-compacts are not necessarily to the benefit of either the large or small states, and that the same problems exist whether or not such quasi-compacts exist. As such, it's hard to argue that even such a quasi-compact that you throw up as a hypothetical would be violative of this 'hidden' Constitutional rule.

As for why I "argu[e]", isn't that the purpose of such a discussion board?

Cheers,

# posted by

Arne Langsetmo : 5:12 PM

On the subject of "compacts", I'd note that some states have formed regional alliances on matters of common concern, and many states have "reciprocity agreements" for such things as licensing, in-state tuition, etc.....

(h/t to Mark Field for jogging my memory in that direction)

Cheers,

# posted by

Arne Langsetmo : 5:17 PM

My one and only argument is that the constitutionality of this national popular vote arrangement is not at all clear.

If Congress consents, of course, it's a moot point.

# posted by

Steve M : 7:27 PM

Steve M.:

My one and only argument is that the constitutionality of this national popular vote arrangement is not at all clear.

That's not an argument. It's simply a statement.

Cheers,

# posted by

Arne Langsetmo : 8:03 PM