Thursday, July 02, 2015

What is a Legislature?


The constitutional question in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC) is whether the State of Arizona can transfer the power to redistrict to an independent commission, which was created by a constitutional amendment passed through the initiative process.  The Arizona Legislature objected to having this power taken away from it. It argued that this violated the Elections Clause of Art. I, § 4, cl. 1, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”  The Court ruled 5-4, in an opinion by Justice Ginsburg, that the Elections Clause allowed Arizona to use an independent commission for creating and revising Congressional districts. (No one on the Court denied that Arizona could use an independent commission to create state legislative districts).

 AIRC raises a recurrent problem in constitutional interpretation. How do we interpret words in the text for situations that the framers and ratifiers didn't expect or didn’t even imagine would occur?  The most obvious examples involve new technologies. Thus, in Kyllo v. United States, 533 U.S. 27 (2001), the Court held that using a thermal imaging device constituted a "search," even though government agents never breached the wall of the defendant's house. In Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1877), the court held that Congress could regulate telegraph communication as part of its powers to regulate foreign and interstate "commerce."  In each case the Court looked to what it regarded as the purposes behind the  clause to apply it to unforeseen situations.

AIRC concerns a political innovation rather than a technological innovation—the development of the initiative and referendum in the late 19th and early 20th centuries to wrest some law-making power away from legislatures or to check legislative misbehavior. These innovations responded to the perceived corruption of representative democracy during the Gilded Age. Because legislatures were corrupt or easily bought off by powerful interests, reformers sought to return important questions to the public.

The framers did not expect that states would implement direct democracy. Many of them knew about similar institutions in ancient democracies, and they distrusted direct rule by the public. They were, however, worried about the problem of representatives entrenching themselves so that they could not be dislodged, even when they no longer commanded majority support.  This is reflected not only in the Elections Clause, but also in Article IV's general guarantee of republican government in the states.

The majority argues that “the Legislature” includes the people of Arizona, who have the power to pass laws, and who have delegated their legislative power to redistrict to the AIRC. It argues that “the Legislature” should be understood functionally, as we understand words like “search” in the Fourth Amendment. The dissent argues that the people of Arizona are not part of “the Legislature.” A legislature must be a representative body, and by definition the people of Arizona are not representatives. (That conclusion is not completely obvious: the voters of Arizona actually do virtually represent everyone in the population who cannot vote, like children, or who do not vote--in some years, a very substantial proportion of the population.)

But there also is a third possibility: that Arizona has more than one legislative body.

Despite the way the members of the Court discuss the case, AIRC does not have to be a case about whether the people can be part of “the Legislature” under the Elections Clause. Direct democracy matters to the case because the initiative was used to amend the Arizona state constitution to create a new governmental body to handle redistricting plans. Neither the majority nor the dissent denies that Arizona can use direct democracy to amend its state constitution. Rather, the question in the case is whether to consider this new body, the AIRC, to be part of “the Legislature” of the State of Arizona under the Elections Clause.  That could be because the people of Arizona are part of “the Legislature” of the state and they have delegated some of their legislative power to the AIRC. But it could also be because the AIRC is itself a legislative body.

The paradigm case of a "legislature" is a lawmaking body which either directly or indirectly represents the public, and which is usually much smaller in number than the voting public itself, just as the voting public is smaller in number than the group of people who live under and are bound by the state's laws.  (Before the 17th Amendment, the Senate was indirectly representative, because Senators were elected by state legislatures. It's also possible to have a legislative body that is not even indirectly representative, like the House of Lords in Great Britain).

The framers and adopters of the U.S. Constitution may not have expected the referendum or initiative, but they certainly did understand that different state constitutions might design the legislature in different ways. Some states might have one house or two. The members of the upper house might be elected or appointed by the members of the lower house. (That is, there could be indirect representation as well as direct representation.) There might be special purpose legislatures that deal with some topics but not others. There might be a power of veto by the governor or no veto, special supermajority rules for some subjects but not others and so on.  Accordingly, the Supreme Court held in Smiley v. Holm, 255 U.S. 355 (1932), that if the Governor's veto was part of the regular procedures for making binding laws in the state, it was also part of "the Legislature" for purposes of the Elections Clause.

The question in AIRC is how far this principle of allowing the state to design its own legislative institutions can be carried. Suppose, for example, that the state amends its Constitution so that bills on certain subjects-- for example, redistricting and voting--do not become law unless ratified by the public in a referendum? The Court allowed a similar arrangement in Davis v. Hildebrant, 241 U.S. 565 (1916). In this case, the people hold a veto on certain kinds of bills, just as a Governor would.

Now suppose the state amends its constitution to create a second legislative body-- which it calls "Legislature 2". Its members are appointed for fixed terms by the leaders of the older legislature (Legislature 1). Its members, in turn, can also appoint one additional member to break ties. The constitution gives Legislature 2 the power to pass all laws involving redistricting without the possibility of veto by either the Governor or by Legislature 1.  Legislature 1 still handles all other issues of election law.

Is Legislature 2 part of the legislative power of the state under the Elections Clause? It is not identical with the people of the state, and its membership is much smaller than the state’s voting population. It is indirectly representative because its members are appointed by members of Legislature 1, and it passes laws. It is not too much of a stretch to say that Legislature 2 is part of “the Legislature” of the state, along with Legislature 1.

In his dissent, Chief Justice Roberts emphasizes that the uses of the word “Legislature” in the rest of the Constitution generally refers to representative bodies, or indirectly representative bodies like the Senate before the 17th Amendment. Legislature 2 meets his objections. He also argues that the 17th Amendment distinguishes between the Legislature of the state and the people of the state. That is not a problem either: as just noted, Legislature 2 is not the same as the people of the state.

Now suppose the state passes a new constitutional amendment. This amendment renames Legislature 2 and calls it the Arizona Independent Redistricting Commission.  Should the name matter at all from the standpoint of the Elections Clause?

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