an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today the Supreme Court granted certiorari in the latest challenge to the constitutionality of Section Five of the Voting Rights Act. The Question Presented is:
”Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act nder the pre-existing coverage formual of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.” I don't understand the last part of the question. How could the Voting Rights Act violate Article Four? Posted
by Gerard N. Magliocca [link]
As a pure guess, I'd say the privileges and immunities clause. But I don't see how the 10th A is involved either, so what do I know?
It's a Guarantee Clause issue. There is a potential argument--suggested in other voting cases and, I believe, invoked in the legislative history of the VRA--that the Guarantee Clause is a basis for federal law prohibiting discriminatory voting practices.
I'd buy the Guarantee Clause (and almost suggested it), but the wording of the Question suggests that the source of Congressional authority was not that. The way it reads, the 14th and 15th A were, but the law nevertheless violates the Guarantee Clause. I couldn't figure that out.
"Article IV and the Tenth Amendment reserve to the States the power to regulate elections. Notwithstanding, the Fifteenth Amendment authorizes Congress to enforce against the States that amendment’s guarantee of the right to vote free from discrimination on account of race, color or previous condition of servitude. It is this Court’s duty to ensure that Congress appropriately remedies Fifteenth Amendment violations without usurping the States’ sovereign powers. Shelby County asks the Court to protect this important federalism interest."
The petition makes it clear it is resting on the 'docrtine of equality of the states' later in the petition:
"For covered jurisdictions, Section 5 arrests that sovereign authority as to “all changes to state election law—however innocuous— until they have been precleared by federal authorities in Washington, D.C.” Nw. Austin, 557 U.S. at 202. Placing a jurisdiction in federal receivership raises fundamental questions of state sovereignty; and doing so selectively, absent compelling justifi cation, unconstitutionally departs from the “historic tradition that all the States enjoy ‘equal sovereignty.’” Id. at 202-03."
"Since the law interferes with state lawmaking, it raises 10A concerns, unless there is a legitimate reason for the infringement."
That makes no sense in light of the text. Either there's power to enact the law or there's not. If there is, the 10th A, by its own terms, doesn't apply. If there isn't, then the inquiry is at an end without reaching the 10th A.
But given the non-textual doctrine which apparently is at stake -- I'm convinced by Mr. Whiskas and by your comment at Volokh -- it's clear that the actual text isn't going to hinder the Court from imposing its own theory.
"That makes no sense in light of the text. Either there's power to enact the law or there's not. If there is, the 10th A, by its own terms, doesn't apply. If there isn't, then the inquiry is at an end without reaching the 10th A."
I agree with your reasoning, but point out that if the Court had actually been following that reasoning for the last 80 years or so, we'd be living in a very different country indeed. Enumerated powers doctrine may be clearly founded in the text of the Constitution, with the 10th amendment only functioning to underscore what was already there, but enumerated powers doctrine is also, for all practical purposes, a dead letter.
It's been a long time since the Court took the mere fact that Congress wasn't granted a power as sufficient reason why Congress couldn't exercise it.
Well, Mark, as you well know, the 10A in effect is used symbolically these days. Rules against "commandeering," e.g., even if in advancement of Art. I. powers.
I looked at the briefs over at Scotusblog. Art. IV is briefly cited, but the main focus is the proper reach of the 15A (the Court added the 14A part).
So, I guess you can say that if the feds goes beyond the "appropriate" legislation there needed to enforce the 15A, it might not have the power to do this sort of thing. That would be a neater 10A claim.
But, NAMUNDO v. Holder etc. also makes broad statements of federalism, state interests etc., so my looser summary also probably is a factor in their analysis.
"I looked at the briefs over at Scotusblog. Art. IV is briefly cited, but the main focus is the proper reach of the 15A (the Court added the 14A part)."
Yes, but the idea is that when Congress exceeds it's power under the 15th what part of the Constitution is being 'violated?' The 'right' of States to make their own election laws guarantee by the 10th and the right to be treated equally granted by Art. IV.
But I agree with you it is an odd way to frame it: if the legislation is not 'appropriate' under the 15th, and you concede that if it is the 10th and Art. IV are not violated, then why bring the IV and 10th into it at all?
I don't think it is an odd way to frame it. Congress cites those amendments as the grounds for exercising its powers. The Court will determine if it actually correctly exercises such power.
First half of question. IF they did exceed it, the 10A is violated in this case since Congress is wrongly infringing powers left to the states. Also, the equal footing doctrine, since the only way to not treat them equally is if there is a valid reason to do so. That is, to enforce the amendments.
"IF they did exceed it, the 10A is violated in this case since Congress is wrongly infringing powers left to the states. Also, the equal footing doctrine, since the only way to not treat them equally is if there is a valid reason to do so. That is, to enforce the amendments."
But IF they exceeded their power under the 15th then they are exercising an unemurated power, and it therefore is illegitimate on those grounds alone since, as you said earlier, "Enumerated power doctrine is not a dead letter."
I guess my view is that any Guarantee Clause claim is (a) nonjusticiable, and (b) without merit. The structural principle that all states should be treated equally is, I think, a more substantial objection to Section Five.
The "all states must be treated equal" canard is a wonderful little Catch-22, isn't it? If Congress had applied preclearance requirements across the board, then wouldn't Kennedy and his fellow conservatives be claiming that there was no reasonable fit between the provision and the evil sought to be remedied?
But, whatever. Let's not pretend doctrine or logic matters one whit on this one. The conservative 5 fully recognize that it is in their party's interest to strike down Section 5, so they will do so without hesitation. The rest is just window dressing.
In this past week's national elections, one issue which passed the vote in California was citizen retrospective approval of the newly configured redistricting performed by a citizens panel.
I am hoping that this sort of re-ratification, plus the documentation which might be available from deliberations of the citizens panel to form some of these new districts, will inform briefs to Scotus on the VRA-5-NAMUDNO-style preclearance pyrotechnics which are about to take place.
The state of CA, itself, has a very few VRA-5 preclearance jurisdictions. I wonder how the citizens redistricting panel approached documenting the histories of those few regions in CA.
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