Gov. Scott Walker’s Proposed Mandamus to Compel Congress to Call an Article V Convention

David Super

     After losing his bid for re-election in 2018, Wisconsin Governor Scott Walker enlisted as a consultant for several conservative groups.  Among these groups was one of several seeking to call this country’s first con­vention since 1787 to amend the U.S. Constitution.  Upon taking that position, Gov. Walker announced that he would be visiting several states and persuading leaders there to abandon their resistance to calling a constitutional convention.  Governor Walker claimed that twenty-eight states had already re­quested a convention for the purpose of adding a balanced budget amendment to the Constitution.  He expres­sed optimism that his group would quickly secure another six states.  Article V empowers Congress to call a convention at the request of two-thirds of the states, which is thirty-four. 

     The details of Gov. Walker’s visits are not publicly known, he likely learned what has long been appar­ent to others:  many Americans of all political persuasions are unwilling to throw our Constitution open to the whims of the special interest groups that likely would dominate an Article V convention.  Since assuming his new role, the number of states requesting an Article V convention has stagnated.  Indeed, if anything the momentum is away from holding a convention as four states – Delaware, Maryland, Nevada, and New Mexico – rescinded decades-old resolutions calling for an Article V convention. 

     Perhaps frustrated by opposition in state legislatures, Gov. Walker recently proposed turning to the federal courts.  In a presentation at the American Legislative Exchange Council (ALEC), Gov. Walker suggested that one or more of the state attorneys general should file a mandamus action against Congress in federal court seeking an order compelling Congress to call an Article V convention. 

     Such an action would be wholly unsustainable under existing law and precedent.  In Spallone v. United States, 493 U.S. 265, 279 (1990), the Court overturned contempt fines against city councilmembers whom it agreed had violated both civil rights laws and a consent judgment to which they had agreed.  Writing for the Court, Chief Justice Rehnquist “emphasized that any restriction on a legislator’s freedom undermines the ‘public good’ by interfering with the rights of the people to representa­tion in the democratic process.”  He went on to note that the doctrine of legislative immunity prohibited both injunctions and damage awards against state officials acting in a legislative capacity.  If respect for voters’ right to control their elected legislators overrides even the Supremacy Clause, it certainly would not allow courts to order Congress to legislate in any particular manner. 

     Moreover, no federal statute authorizes such suits against Congress.  Under 28 U.S.C. § 1361, federal courts may issue writs of “mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”  Congress is not an agency of the United States, and the Speech and Debate Clause prohibits any court from so much as questioning Members of Congress about any of their legislative actions.  Art. I, sec. 6.  It also is doubtful that, even if Congress was required to call an Article V convention, that would be a “duty owed to” any state attorney general.  The Supreme Court has repeatedly emphasized that Article III requires plaintiffs to have particularized interests, beyond a general desire to uphold the law, to invoke federal courts’ jurisdiction.  Raines v. Byrd, 521 U.S. 811 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); see Blessing v. Freestone, 520 U.S. 329 (1997).

     The Supreme Court has warned against inferring the right to sue federal officials without clear statutory authority. E.g., Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). 

     Most simply, Coleman v. Miller, 307 U.S. 433 (1939), held that issues concerning how the Constitution is amended are “political questions” into which the courts may not intervene. 

     Even if a court did agree to hear this case on the merits, Gov. Walker and his allies would have no basis for prevailing.  After spending more than a decade and vast sums of money, they have failed to convince states that an Article V convention is safe and wise.  Indeed, their claim to have twenty-eight live state resolutions depends on counting about ten from the 1970s and early 1980s that were passed as part of a previ­ous, also failed, attempt to persuade states to call an Article V convention on a balanced budget amend­ment.  Con­gress could well interpret Article V as requiring that two-thirds of the states request a conven­tion more or less simultaneously.  Since 1917, Congress often has required proposed constitutional amendments to be ratified within a finite number of years, typically seven, in order to be effective.  See U.S. Const. amdts. XVIII, XX, XXI, XXII.  Although “the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including…receiving, judging, and recording state applications [and] establish­ing procedures to summon a convention”.  Thomas H. Neale, Cong. Research Service, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress 4 (R42589 April 11, 2014).  These are all highly discretionary, political choices. 

     Gov. Walker’s proposal that a federal court order Congress how to exercise its discretion over which state resolutions to count is strikingly inconsistent with principles conservatives ordinarily espouse, including limits on judicial overreach and respect for the separation of powers.  The notion that the judiciary may supervise the political decisions of the two other branches was rejected as early as Chief Justice John Marshall’s landmark decision in Marbury v. Madison, 5 U.S. 137, 165-66 (1803):

By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discre­tion, and is accountable only to his country in his political character and to his own conscience. … [A]nd whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.

     These principles apply with even greater force to Congress, whose responsibilities are wholly political.  By Gov. Walker’s reasoning, Judge Merrick Garland could have brought a mandamus action to compel the U.S. Senate to give its “advice and consent” as to whether he should serve on the Supreme Court.  Indeed, Judge Garland would have had a stronger case than the ­attorneys general Gov. Walker imagines suing to force an Article V convention because he had a strong, particu­larized personal interest in congressional action.   

     To get from their claimed twenty-eight states to the necessary thirty-four, Gov. Walker embraces a fringe legal theory that would count six very old resolutions from states that sought an Article V convention without specifying a particular purpose.  The oldest of these, from New York, was passed in 1789 out of concern that the original Constitution lacked a Bill of Rights.  None of the six (from Illinois, Kentucky, New Jersey, New York, Oregon, and Washington) has anything to do with the proposed balanced budget amendment.  Congress has never counted these resolutions when determining if the two-thirds threshold has been met.  Indeed, if it had counted such generic resolutions, it would have called conventions both early in the twentieth century (on the popular election of senators) and in the 1980s (on the balanced bud­get amendment).  That Article V convention proponents have been working intensely on this issue for over a decade and only first floated this idea two years ago – when their efforts in the states stalled – sug­­gests that this is more of an argument of convenience than a serious legal theory. 

     As strange as their legal arguments are, Gov. Walker and his allies must be taken seriously.  An Article V convention, particularly in the current polarized environment, could do incalculable damage.  Although proponents like to trot out crowd-pleasers like term limits, a balanced budget amendment, or (on the left) overriding Citizens United, once a convention opened it would be free to change any part of the Constitution or could rewrite it from scratch.  Nothing in Article V (or anywhere else in the Constitution) limits conventions to single purposes or empowers Congress, state legislatures, or the courts to limit the convention’s scope.  Indeed, even in Gov. Walker’s presentation to ALEC panelists mused about a variety of other constitutional amendments they would like to entertain.  How a convention might operate is completely unknown:  Gov. Walker and his allies argue that each state should have a single vote, but California would surely object on one-person-one-vote grounds to giving the same weight to its 39.5 million people as is given to the 600,000 in Wyoming.  And although Article V declares that proposed amendments require ratification by three-quarters of the states, a convention could disregard these rules just as the Philadelphia Convention of 1787 disregarded the ratification requirements in the Articles of Confederation. 

     Once the various well-funded special interests had their say, our Constitution might well be fundamentally changed in ways that would be difficult to correct.  At a time when respect for the rule of law is at a historic low, opening up the Constitution would be a reckless gamble. 

     @DavidASuper1