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Nevada, and New Mexico – rescinded decades-old resolutions calling for an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