Friday, January 10, 2020
The OLC's Mistaken Analysis of the ERA
Gerard N. Magliocca
Soon the impeachment trial will inhale all of the constitutional oxygen. Before that happens, though, I would like to explain why I believe the OLC was wrong in concluding that Congress cannot waive the expired ratification deadline for the proposed Equal Rights Amendment to the Constitution. To be clear, I think that a member of Congress can in good faith reject waiving the deadline or conclude that the states that rescinded their ratifications during the 1970s should not be counted as yes votes, which would leave the ERA well short of the three-quarters required for ratification.
There is a Congressional Research Report (updated last month) on contemporary ratification issues of the ERA: https://fas.org/sgp/crs/misc/R42979.pdf
There has been some happenings, including a couple proposals to start from scratch and a House hearing to discuss restarting the clock. I guess it is redundant to belabor stuff I already said.* As the discussion notes, practice involving a variety of amendments for at least over 150 years clashes with the OLC memorandum.
I'm not one to say long historical practice settles but it is a rather important means to determine constitutional meaning, especially given the current court membership. And, text is not violated either, including as noted by GM's separate article the Necessary and Proper Clause, which gives Congress specifically authority to fill in details.
Perhaps, we will hear more about this later on.
* For instance, discussion how Congress legitimately has set up a process to officially announce when an amendment is ratified, resulting in specific requirements to be followed. This is a role after the amendment is sent to the states, contra a comment Congress has no role after that point. And so forth.
Important. But the author of the post, doesn't provide the reasoning simply, for what he calls " elegant solution ". And the solution itself, is not at all elegant. Nothing in Article V, suggests, that the action is solely prospective, or, can be actually retrospective or not. Here I quote the OLC :
" Article V goes on to confirm that Congress lacks any continuing authority over ratification by providing that the States’ ratification of what Congress proposed is self-executing. "
So, even if the mode is such of " self executing " indeed, that doesn't explain, why it is only prospective. It can be also in retrospect, and yet, self - executing mode, as initiated from the start of ratification of amendment.
Nothing is elegant in that. The real issue, is whether can be revived after deadline had expired actually, setting up new deadline by Congress. That's it!
I guess another question might well be, Why does anyone care what OLC thinks? It's part of the Executive. Few things are clear about Art. V, but one of them is that the Executive has no role whatsoever. Congress has a role. The states have a role. But not the Executive. I doubt anyone would argue that OLC can "bind" anyone else, but it's unclear to me why it even gets to have an opinion worth more than that of a random blog commenter.
He's not wrong about "Reconstruction irregularities"; Some of the southern states literally ratified at gun point. We certainly wouldn't want to take THAT as binding precedent!
I don't think anything about the way the Reconstruction amendments were adopted should be considered precedent; They were cutting corners all over the place at that time, and knew it.
The OLC matters, because it isn't just Congress that has to, (Ought to, anyway!) follow the Constitution. It's the Executive and the Judiciary, too. And the Executive is just as entitled to an opinion about whether an amendment has been legitimately ratified as Congress.
Article V is prospective in that it grants states the power to ratify proposed amendments. States do not enjoy an express or implied power to rescind.
Article V grants Congress the power to propose amendments, but no power to set a deadline on the state ratification power. The only possible way to justify Congress setting such a deadline is if the deadline is part of the proposed amendment. Under this reasoning, Congress may not revise the deadline in mid-ratification any more than it can change any other part of the proposed amendment.
He's not wrong about "Reconstruction irregularities"; Some of the southern states literally ratified at gun point. We certainly wouldn't want to take THAT as binding precedent!
First off, it is not the only precedent. If something was done there AS WELL AS OTHER TIMES, there is not really a good reason to not count it.
Second, what sort of pressure is too much here? The original Bill of Rights was proposed by pressure of multiple states saying it was only agreeing to the Constitution because they assumed a BOR would be added & was a factor in bringing in North Carolina and Rhode Island as well. Multiple states ratified the Constitution because of pressures on them such as the felt need of a strong federal government to protect themselves from Native Americans and so on. What level of "undue influence" taints something here? After all, Congress itself was not acting under the force of "gunpoint." The majority there was acting per their felt belief of what was correct.
The "gun point" referenced included having guards at legislatures when there were ongoing violence against members in legislatures and voters, including people dying. What does that add? Plus, the whole thing adds a special asterisk to the amending power simply not there. The amendment power is there to deal with a range of possibilities. We are left with yet another special rule here where certain procedures, including involving how Congress acted (how the "gunpoint" factored in there is unclear), are supposed to be waived for "it seems right reasons."
Amendments will in a range of cases be ratified because the felt necessities of the time, necessities that in multiple cases will put pressure on the people. The South recognized slavery was done. The "gunpoint" there was losing the war for revolution.* It does not influence the issue of recissions or time limits much at all here. The 14A and 15A was more opposed by the South but again it is unclear how the choices made there factored into the precedents to time limits etc.
(We can also use this to advance GM's argument that discretion here -- not unlimited but broad in certain ways -- should take into consideration the specific factors involved in each case. Thus, the value of broad political discretion. On some level, we can factor in the times as is done when judging state immunity questions involving debts -- see, e.g., the Seminole Tribe case, especially Justice Souter's dissent. My argument then would be "okay, but what does that get you in the end?")
A neutral look here would make things complicated. There was a felt need for speed in the 26A to avoid problems with two rules for federal/state elections. The poll tax amendment was proposed by a Southern senator as a way to avoid broader federal "coercion" over local race relations. Was there "pressure" there so that we shouldn't count the procedures used there? Anyway, it helps a lot that the precedents are not amendments proposed at one particular moment.
* "Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled."
And the Executive is just as entitled to an opinion about whether an amendment has been legitimately ratified as Congress.
Well, you and I are also entitled to an opinion about that. But since the Executive has no more role in certifying the ratification than we do, it is hard to see why OLC ought to be issuing official statements.
Not relying as precedent such and such given the tainted nature of the process really can bite some. After all, some point out how tainted the ratification of the Constitution is, including the far from representative sample involved, the secrecy of formation and so forth.
Why should that be "binding precedent"? Or rather, perhaps, why should we try to rely so much on what a limited dubious sample thought as compared to looking at the text from today's vantage point? If one is consistent there, it is a complicated thing, and the best approach might be to take history as a whole while today interpreting the meaning of the Constitution. Perhaps, that is what was expected -- the document gives people the power and they have to decide in their own time.
Anyway, it is fine for the OLC to make an official statement from the executive department, especially given there is an ongoing lawsuit affecting federal officials. Given the special role of Congress here especially, it is going to be of limited effect as compared to other situations, plus as noted by GM, can be challenged on the merits.
The memorandum (linked in the last entry) is entitled "MEMORANDUM FOR THE GENERAL COUNSEL NATIONAL ARCHIVES AND RECORDS ADMINISTRATION" and is a reply to a request for the views of the OLC. As noted in the memo, "Congress has charged the Archivist of the United States with the responsibility to publish a new constitutional amendment upon receiving the formal instruments of ratification from the necessary number of States."
"But since the Executive has no more role in certifying the ratification than we do"
That's kind of the point here: Article V doesn't assign Congress any role in certifying the ratification, either. It doesn't say the ratification has to be certified! The amendment becomes effective when the last needed state ratifies. No further action necessary.
But the Executive certainly has as much need as Congress of an opinion about whether an amendment has been ratified, because the Executive has to *comply* with the Constitution, while having no obligation to comply with unratified amendments even if Congress for its own reasons decides to claim they're ratified.
In the end it's the courts' opinion that will matter, and I expect the Executive will have as much opportunity to argue before the Supreme court as Congress would.
"Congress has charged the Archivist of the United States with the responsibility to publish a new constitutional amendment upon receiving the formal instruments of ratification from the necessary number of States."
I think Congress can legitimately designate the Archivist to state whether sufficient states have ratified (N&P clause). But I'm not sure why the Archivist would consult OLC in the case of doubts, rather than Congress. Clearly the individual state can't decide -- that's judging its own case and also the whole problem is inconsistency in what the "state" did. That leaves Congress as the only plausible deciding body.
The basic function of the OLC is to provide legal assistance to the executive branch.
As I understand it, the National Archives is an independent federal agency. Perhaps, Marty Lederman [former OLC guy] can clarify if there is something off with the request (the Archivist in office is an Obama appointee) of an OLC opinion. I found one reference to OLC doing so if the agency agrees to be bound by it. https://www.yalejreg.com/nc/making-soup-from-a-single-oyster-crew-v-doj-and-the-obligation-to-publish-office-of-legal-counsel-opinions-part-i/
As to settling a ratification dispute, in theory, the courts can decide. But, generally it has been deemed a political question (see, e.g., Leser v. Garnett, 19A).
I can see the Archivist's reasoning: I need advice here; OLC/DOJ give legal advice to the Executive Branch; I'm part of the Executive; etc. The problem is that this reasoning ignores the issue of jurisdiction, namely why does OLC/DOJ have any?. Since the state in question can't decide, the natural first impression should be for the Archivist to report the facts and let Congress/the Courts decide. The Court may very well ask the DOJ for a brief in that case, but there's no obvious reason why it should be involved otherwise.
"and let Congress/the Courts decide."
Again, Article V doesn't actually give Congress any role here. Congress' role is finished when the amendment is originated.
You're just saying that because you want it to be so. The Constitution leaves lots of gaps, its meaning unsettled. Where does it say a state can rescind a ratification? Where does it give the states, jointly or severally, the power to decide contested issues of ratification?
*Somebody* has to decide when and if an amendment is ratified. It can't be "the states" collectively (they have no mechanism to do that, and in any case that's what Congress is). It can't be the individual state when its ratification is the issue in question (as I said above). That leaves Congress or the Court, and we have Coleman v Miller as Joe keeps reminding us.
Three states sued so there is an active lawsuit.
So, it would seem logical for the archivist to seek legal advice; but I'm open for more information there.
Coleman v. Miller, history overall & the fact the text doesn't say that.
The suits are interesting. They have to allege jurisdiction, but it's not clear the Courts have it (they might; I think there are plausible arguments). They also have to assume the state has suffered an injury, which seems less clear and also to assume their conclusion.
"You're just saying that because you want it to be so."
I'm saying it because I've read the freaking Constitution. And it just doesn't give Congress any role in ratification.
The fact that the Constitution doesn't give Congress a power you think it should have doesn't constitute a "gap".
Yes, Congress needs a way of deciding when an amendment has been ratified. So does the Executive, so do the Judiciary, so do every Tom, Dick, and Harry nation-wide. A need to decide when an amendment has been ratified doesn't create a role in deciding when an amendment has been ratified.
Article V has been mostly ignored by the left since they gave up on formally amending the Constitution back in the 80's. I can see that the opportunity to impose the ERA on a nation that has rejected it has got the left-wing constitutional sophism machine fully engaged with Article V.
As for injury, being deprived of the power to reject an amendment seems a considerable injury.
"The fact that the Constitution doesn't give Congress a power you think it should have doesn't constitute a "gap"."
The gap is that *nobody* is given the power.
"As for injury, being deprived of the power to reject an amendment seems a considerable injury."
First, this assumes your conclusion. Second, the purported injury is the passage of the ERA. The state would have to show how this harms it. Not easy to do.
"I'm saying it because I've read the freaking Constitution."
We've all read the Constitution. It's silent on the topic. You're making an inference from silence without making any real argument or addressing the issues.
"The gap is that *nobody* is given the power."
BS. The states are given the power to ratify. Everybody who's graduated from elementary school can count to 38, and the states publicly announce when they ratify, you don't need somebody adding the votes officially, and you sure as hell don't need that somebody invested with discretion about counting them.
"First, this assumes your conclusion."
Well, duh: To file suit, you must assert an injury. The court then determines whether the injury occurred. Being deprived of the chance to make a decision you're lawfully invested with the right to make is a pretty standard sort of injury, doesn't require that the person who usurped from you the choice have made a decision that further injures you.
"You're making an inference from silence without making any real argument or addressing the issues."
No less than you. My inference from the Constitution not saying Congress has a role in ratification is that it doesn't have a role. Your inference is that it does have a role. I think my inference better supported by normal, unmotivated reasoning.
"Everybody who's graduated from elementary school can count to 38, and the states publicly announce when they ratify, you don't need somebody adding the votes officially, and you sure as hell don't need that somebody invested with discretion about counting them."
The states were given the power to ratify, not to rescind. They created a problem by purporting to rescind their ratifications. That means somebody has to decide which of the two actions taken by the state should control.
"Being deprived of the chance to make a decision you're lawfully invested with the right to make is a pretty standard sort of injury, doesn't require that the person who usurped from you the choice have made a decision that further injures you."
It's not that simple. I'll use a law school hypothetical. If I go in for a vasectomy and the doctor fails to do it properly, I can't force the doctor to pay for the costs of the child. Having a child is not a legally cognizable injury. Lots of seeming "injuries" are not legally cognizable, so you can't just assume one.
"My inference from the Constitution not saying Congress has a role in ratification is that it doesn't have a role. Your inference is that it does have a role."
No, I've offered actual arguments, for example that individual states can't be judges in their own case; that the states collectively have no mechanism for deciding what another state did; that the N&P clause gives power to Congress to carry into effect all other powers granted; that the Court can decide all "cases and controversies arising under the Constitution"; Coleman v Miller; etc.
"that the N&P clause gives power to Congress to carry into effect all other powers granted;"
Which means squat when no relevant power was granted.
Look, the idea that a man (or state) can't be the judge in his own case is of limited application. If I'm charged with a crime, I can't be the judge in my own case. That's because there's an objective question at stake, apart from my own intent, which I have a motive to get wrong.
But in many cases, where a person or institution is making a decision it's entitled to make, you not only get to be the judge in your own case, you're entitled to be. If the question arises whether I like vanilla or chocolate, I damned well am going to be the judge in my own case.
If a state has the right to ratify or reject an amendment, it SHOULD be the judge in its own case, because it is the state's right that is to be effectuated. The state has its own courts to resolve internal disputes. The question of whether a state has ratified an amendment is properly left up to that state to resolve, and nobody else, because letting anybody else resolve it is letting them usurp a power reserved to that state.
There are strong reasons for accepting that a state has rescinded its ratification, at least prior to the magic number being reached. The goal isn't just some formal going through the motions, the goal is that amendments be adopted when enough states support them. Counting rescinded ratifications defeats that goal.
Deliberately, in this case. The goal of the ERA proponents is to win, even knowing not enough states support the ERA, or ever have. They're trying to game the system to force through a rejected and expired amendment. I have nothing but contempt for what they're doing, and for anybody who supports them in this effort.
"Which means squat when no relevant power was granted."
The power granted is the power to amend the Constitution. Congress has the power to carry into execution the power to amend.
"If a state has the right to ratify or reject an amendment, it SHOULD be the judge in its own case, because it is the state's right that is to be effectuated."
By definition in this situation, the state made two inconsistent decisions. It doesn't get a third bite. While you keep saying this is a "power reserved to the state", that's not what Art. V says. Art. V gives the state power to ratify an amendment proposed by Congress. It grants no power whatsoever to (a) make that decision twice; or (b) rescind a decision already made.
"The goal isn't just some formal going through the motions, the goal is that amendments be adopted when enough states support them. Counting rescinded ratifications defeats that goal."
This is nonsense on stilts. By ratifying an amendment, the state showed its support. Other states relied on that support in making their own decisions. Allowing rescission defeats the goal of adopting amendments when enough states support them.
"The power granted is the power to amend the Constitution."
No. It. Isn't.
The power to amend the Constitution is purposefully split into two components: The power to originate amendments, which can be exercised by either Congress or the states, and the power to ratify amendments, which is given only to the states.
Let me repeat that: The power to ratify is a STATE power. So the N&P clause can not apply to it.
This is exactly what is going on here: Sophistry in the service of transferring that power from the states to Congress.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress
Congress is given the power to propose with a never used convention proposal approach. The gaps are already here. What sort of application? How clearly should the states be on the same page of what they want the convention to do?
Then, Congress has the power to set a "mode of ratification." Again, this would entail details such as process for each state to provide proof they ratified, said statement sent to a federal official as I previously noted cited in a case arising out of the 19A. But, the process was in place before then. The final certification by the archivist and official inclusion in the archives is well accepted here & was set forth by Congress. It has a role that arises after the amendment left for ratification.
Congress -- over and above "everybody else" or a state or the states in some non-Congress form -- has a role here:
The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This includes here both the "mode" and the "execution" of the amendment itself, which would entail a formal process to show it exists. What role does the text provide for the states? The text simply says an amendment becomes part of the Constitution when a certain number of state legislatures or conventions ratify.
This is said to be obvious. It is not. First, there is the issue of time limits. Dillon v. Gloss, a unanimous opinion written by a conservative justice that was reaffirmed in Coleman v. Miller on this point, cites that there is a reasonable implication that proposal and ratification should be suitably contemporaneous. It provides analysis of that point & as I noted it cites a general principle that is sound for legal acts generally. Consider an idea that someone agrees to a contract if the other party agrees. Forty years later the person says "hey! I agree!" This would appear to violate assumed legal policy.
Congress in the case of the ERA, as GM noted unlike another amendment proposed even as the ERA was pending, provided a time limit OUTSIDE THE TEXT OF THE AMENDMENT. If there is a contemporary principle, one that by now is a long term precedent, an amendment at some point might not be contemporaneous any more. The Supreme Court noted there are so many nuances there that it is a political question. But, in theory, the courts can decide such a question. A single state? Not so much.
Then, there is the issue of recissions as Mark noted. Again, the bare text doesn't suggest that they can occur. Are there any rules in place there? Maybe, after a certain period of time, there is grounds to do that. Who decides such questions? Who specifically is given the power to fill in the blanks here? Congress. But, again, maybe the courts can have some role. Then, it is a matter of structural concerns on political question doctrine -- that is, is this something a court can handle etc.
Those are the two major questions any elementary school child might not be about to settle, but there might be more. Perhaps, there is evidence the legislature acted in some fraudulent fashion, such as bribery or denying certain people the right to vote. In part given the republican form of government principle, should such alleged ratification count? Again, there might be a dispute and Congress has specific power here, especially under principle back to the 1840s regarding republican form of government.
The text is simply not clear on these questions and history and precedent, not just involving the 13-15A, gives Congress broad power as well. We are reading the Constitution. I'm reading a lot more. There is room for debate. Or, we can just assume things, which takes less time.