Guest post at the Election Law Blog on Ted Cruz eligibility challenges

Over at the Election Law Blog, I have a guest post on the recent controversy over Ted Cruz's eligibility. It begins:

Earlier this week, Donald Trump suggested that Ted Cruz’s Canadian birthplace could be a problem in the event he became the Republican presidential nominee. He followed that up with a call for Mr. Cruz to seek a declaratory judgment in court that he is a “natural born Citizen” and eligible to serve as president.

Amicus briefs in support of appellants in Evenwel v. Abbott

Last week, amicus briefs in support of appellants in Evenwel v. Abbott were due. The following parties submitted briefs. I'll add the PDFs of each as I can find them (from counsel).

American Civil Rights Union

Eagle Forum Education & Legal Defense Fund, Inc.

Project 21

Tennessee State Legislators and The Judicial Education Project

Cato Institute and Reason Foundation

Mountain States Legal Foundation

Demographers Peter A. Morrison, et al.

Center for Constitutional Jurisprudence

Immigration Reform Law Institute

Judicial Watch, Inc., et al.

City of Yakima, Washington

Scalia, Roberts discuss the Elections Clause in dueling King v. Burwell opinions

King v. Burwell (PDF) is a statutory interpretation case about health care exchanges, but the Elections Clause makes an appearance.

From Justice Scalia's dissent:

To see the error in this reasoning, one need only consider a parallel provision from our Constitution: “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.” Art. I, §4, cl. 1 (emphasis added). Just as the Affordable Care Act directs States to establish Exchanges while allowing the Secretary to establish “such Exchange” as a fallback, the Elections Clause directs state legislatures to prescribe election regulations while allowing Congress to make “such Regulations” as a fallback. Would anybody refer to an election regulation made by Congress as a “regulation prescribed by the state legislature”? Would anybody say that a federal election law and a state election law are in all respects equivalent? Of course not. The word “such” does not help the Court one whit.

And Chief Justice Roberts's response in footnote 2:

The dissent argues that the phrase “such Exchange” does not suggest that State and Federal Exchanges “are in all respects equivalent.” Post, at 8. In support, it quotes the Constitution’s Elections Clause, which makes the state legislature primarily responsible for prescribing election regulations, but allows Congress to “make or alter such Regulations.” Art. I, §4, cl. 1. No one would say that state and federal election regulations are in all respects equivalent, the dissent contends, so we should not say that State and Federal Exchanges are. But the Elections Clause does not precisely define what an election regulation must look like, so Congress can prescribe regulations that differ from what the State would prescribe. The Affordable Care Act does precisely define what an Exchange must look like, however, so a Federal Exchange cannot differ from a State Exchange.

Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.

You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.

And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

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, except as to the places of choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

Thoughts before today's oral argument in the Arizona redistricting case

Over a year ago, I flagged an underdiscussed case in which Arizona's legislature case challenged the power of a ballot initiative-created redistricting commission to draw congressional districts. The Arizona legislature lost below, hired Paul Clement to help brief the case, and finds itself before the United States Supreme Court today.

There's much to say about this case before oral argument (for a taste of some interesting things already said, see George Will, Michael Ramsey, and Will Baude), but I'm going to highlight a few things to look for.

First, the Court added a question asking whether the legislature had standing to bring this lawsuit. I think the answer is probably yes, with little dissent, but how the Court goes about explaining standing in this case, and its implications in certiorari-pending cases like Hickenlooper v. Kerr, is of some interest.

Second, there's a possible statutory dodge. 2 U.S.C. § 2a(c) may include language broad enough to suggest that Congress authorized redistricting by any means permitted by law, including by ballot initiative. Or it might be deemed unconstitutional as a statute, as other portions of it have been. Or it might not be broad enough to be read that way. Or it might be unconstitutional to divest the legislature completely of its redistricting power. Or it might be that this Court, as it has done in other election cases, will adopt a saving statutory construction and generous dicta on the merits. How much traction any permutation of the statutory argument gets at oral argument will be of interest.

Third, how much will textual-oriented originalism square off against a bevy of alternative constitutional theories--including emphasis on functionalism, limiting principles, and consequentialism? Reading the briefs, I was struck at the stark contrast in arguments. "Legislature" should not be an overly complicated word to understand, particularly as used here and elsewhere in the Constitution. But the respondents briefs often quickly turned to one of these three notions.

My own views? They aren't very strong.

The first argument is a functionalist view of the word “Legislature.” It argues that the word is like a chameleon, adapting with each clause: in one part of the Constitution meaning an electoral body, in another place a ratifying body, and in this place a lawmaking body, which can include the people. But this argument relies more on language from a few previous, and somewhat sloppy, judicial opinions, and less on the text of the Constitution. (It's not hard, after all, to see places where a justice on the Court has used "State" when it should have used the word "Legislature.")

The second argument s a worry about a limiting principle. If “Legislature” means legislature, can the governor veto an election bill? Can an administrative agency regulate an election? Can a court interpret an election law? Those harder questions are best left to another day—here, the Arizona legislature has been frozen out of the redistricting process with no effective role, which, I think, is sufficient to succeed on a claim here.

The third, and most discussed in the briefs, is a consequentialist concern. The people, after all, have been amending election laws by ballot initiatives in many states for decades. If Arizona’s independent redistricting commission falls, other redistricting commissions might fall, too. And not just redistricting commissions—Oregon’s vote-by-mail system, Mississippi’s voter identification law, and California’s top-two primary system, were all enacted as popular ballot measures. And all would be threatened.

These laws would remain in effect for state legislative redistricting and state elections—they simply would not apply in federal elections. And these could be saved, of course. Congress could explicitly pass a law authorizing initiatives as a valid means of enacting federal election laws (assuming that there's not greater constitutional issue with such a law), or the state legislatures themselves could ratify the laws enacted via initiative.

But the consequentialist concern may worry members of the Court—indeed, it often appears to drive judicial decisionmaking in high-stakes litigation. These, to me, are some of the worst kinds of constitutional arguments. Judges aren't supposed to sit in the position of worrying that if they follow the text of the Constitution, something undesirable may follow, and so they should ignore it to prevent the undesirable thing. But I imagine that this may be one of the things most emphasized at oral argument--more so than line drawing, a question of what happens next if the Arizona legislature wins?

I'm attending a conference much of the day and won't have prompt access to the oral argument transcript, but I'll offer my thoughts on it late today.

Everything you need to know about Hickenlooper v. Kerr, the Guarantee Clause case before the Supreme Court

Tomorrow, the Supreme Court will consider a petition for a writ of certiorari in Hickenlooper v. Kerr. Colorado legislators challenged an enacted ballot initiative that prohibited legislative tax increases from taking effect without a popular vote, arguing that it violated the Guarantee Clause. A federal district court, and the Tenth Circuit, agreed that the legislators had standing and that the Guarantee Clause claim was justiciable.

I started tracking this matter over a year ago. I provide the background in these links; below that, I'll discuss the briefs in the case that the Court will consider.

• Tenth Circuit considers justiciability of Guarantee Clause today (Sept. 23, 2013)
• More thoughts on the Guarantee Clause from Michael Ramsey (Oct. 10, 2013)
• BREAKING: Tenth Circuit finds Guarantee Clause claim justiciable (Mar. 7, 2014)
• Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning, JURIST (Mar. 31, 2014)
• Colorado files petition for rehearing en banc in Guarantee Clause case (Apr. 4, 2014)
• BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case (July 22, 2014)

Several amici were filed in the case, available at SCOTUSBlog. Of note (and these are very brief summaries of the major arguments):

• The Colorado Union of Taxpayers Foundation, the Mountain States Legal Foundation, and 22 Colorado state legislators filed a brief in support of the petitioner. They focused primarily on the fact that respondents' injury was abstract, because legislators never enacted a tax increase for the people to vote upon--instead, they simply alleged a dilution of legislative power. That cannot comport with existing standing doctrine. Only if the Colorado legislature enacted a tax increase, then saw the people reject it, would standing exist.
• The National Federation of Independent Business, along with several policy institutes, filed a brief in support of the petitioner. They emphasized the breadth of the impact of a finding that such a case is justiciable, because the decision invites judicial invalidation of direct democracy in a number of states on matters ranging from marijuana legalization to charter schools. They also noted that in the partisan gerrymandering context (Vieth v. Jublier), the Supreme Court has essentially required an articulation of judicially-manageable standards before the case could proceed. Here, the district court insisted (in a rather bizarre fashion) on holding a trial to determine what the Guarantee Clause demands.
• The Center for Constitutional Jurisprudence (with John Eastman) filed a brief in support of the petitioner. It focused upon the inability of the Tenth Circuit to distinguish existing precedent finding the Guarantee Clause usually non-justiciable. Regardless, the case presents a good vehicle for clarifying the language in cases like New York v. United States (1992) suggesting that the Guarantee Clause may be justiciable, and articulating that the standards for justiciability are not met in this case.
• Texas joined by five other states filed a brief joined in support of the petitioner. They argue that the text of the Guarantee Clause protects not the state legislature, but the people, and the States. They also cite other provisions like line-item vetos and supermajority voting requirements that may be called into question if this case is found justiciable.
• The Cato Institute (with Ilya Shapiro) and several other policy institutes filed a brief in support of the petitioner. It asked the Court to avoid addressing the issue of whether the Guarantee Clause is per se non-justiciable and instead emphasized that Colorado's Taxpayer Bill of Rights met the standard of a "Republican Form of Government," drawing heavily from source material at the founding.

The Supreme Court will consider the case tomorrow--and we'll eagerly await their decision as to whether to hear this case.

Does Common Core violate the Compact Clause?

I fancy myself among one of the privileged few who know anything about the Compact Clause of the United States Constitution, as I've written two articles about the need for congressional consent of the National Popular Vote Interstate Compact.

But I recently ran across a lawsuit alleging that Common Core, an education standards program that several states have agreed upon, violates the Compact Clause absent congressional consent. The PDF of the memorandum in support of the motion for a preliminary injunction in Sauer v. Nixon, filed in Missouri state court, is here.

Formally, an interstate compact requires congressional consent. But the Supreme Court has interpreted the types of compacts that need consent quite narrowly--only if the compact infringes on the power of the federal government or on the power of non-compacting states does the compact require congressional consent.

First, the memo argues that the adoption of Common Core infringes on the power of the federal government. That's because Congress has expressly prohibited the Department of Education from establishing uniform national education standards. But DOE has aided states in adopting Common Core, inviting participating states to earn grant money and fund an interstate educational consortia. In a sense, it's a problem that the DOE is ceding federal power to the states by encouraging them to implement standards that it cannot do itself. Instead, it's ceding power that Congress currently holds--and because it's undermining Congress's clear directive, only congressional consent could cure a state's adoption of Common Core. It’s a wrinkle I haven’t considered before--the nature of the "federal power" at stake in a case like this.

Second, the memo notes that it affects the balance of power among non-compacting sister states. Educational curriculum providers and national standardized testing companies have altered their behavior in light of the compacting states' adoption of Common Core, making it difficult for non-compacting states to proceed with their own education policies without being impacted by these changes. I think this argument is a slightly more difficult case under existing precedent--it’s such a challenge now that the Court has basically said that indirect types of pressure (e.g., the pressure to conform to multistate tax regimes, etc.) are not the kinds of things that infringe on state sovereignty. In my Article (and especially the follow-up piece), I was at least able to cite to the fact that the power given to presidential electors as authorized by the Constitution had changed, at least in terms of the power those electors have. That said, precedent aside, there’s a very real impact on non-compacting sister states, and one that, I think, an original interpretation of the Compact Clause demands congressional consent.

The memo goes on to note that Common Core includes an independent governance structure with mandatory assessment of common core; that it delegates sovereign power to the structure by abiding by decisions and timelines of the consortium; that exiting the consortium requires review and approval of the consortium rather than unilateral withdrawal; and results in an exercise in power that the states could not perform in their absence, given that it dictates educational assessment outcomes of other states. These, the memo argues, are the classic hallmarks of the type of "compact" that requires congressional consent before taking effect. Finally, the memo argues that similar compacts required congressional consent, something lacking here.

Will this challenge succeed? It depends on how robust the courts read the Compact Clause--given Supreme Court precedent, courts have been reluctant to demand congressional consent. But perhaps the far-reaching nature of Common Core would be enough to persuade a court to hold the standards invalid absent congressional consent.

The contraceptive mandate and the risk of hyperbole in Supreme Court dissents

From Wheaton College v. Burwell, No. 13A1284, July 3, 2014 (Sotomayor, J., dissenting) (PDF):

If the Government cannot require organizations to attest to their views by way of a simple self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work? The self-certification form is the least intrusive way for the Government to administer the accommodation.

From the Centers for Medicare and Medicaid Services, "Women’s Preventive Services Coverage and Non-Profit Religious Organizations," August 22, 2014:

In August 2014, in light of the Supreme Court’s recent interim order in a case involving Wheaton College, interim final regulations were published to establish another option for an eligible organization to avail itself of the accommodation. Under the interim final regulations, an eligible organization may notify the Department of Health and Human Services (HHS) in writing of its religious objection to contraception coverage. HHS will then notify the insurer for an insured health plan, or the Department of Labor will notify the TPA for a self-insured plan, that the organization objects to providing contraception coverage and that the insurer or TPA is responsible for providing enrollees in the health plan separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same, as discussed in this Fact Sheet. The interim final rule solicits comments but is effective on date of publication in the Federal Register.

BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case

This post has been updated.

The Tenth Circuit has denied the petition for rehearing en banc in Kerr v. Hickenlooper, the case that found the Guarantee Clause justiciable. The PDF is here. Four judges dissented in three opinions. Rick Hasen calls it "potentially a huge case."

I wrote about this case in JURIST last March, and I've blogged about the case, the Tenth Circuit's decision, and the en banc petition. It inspired Elizabeth Price Foley and David Rivkin to write that it may invigorate legal challenges to the scope of President Obama's executive power, carried out at the moment by Speaker of the House John Boehner. Michael Ramsay had two posts earlier about the issue, too.

Briefly, Colorado voters in 1992 passed a Taxpayer Bill of Rights that requires all tax increases be approved by a popular vote of the people. Some legislators sued, claiming that the law deprived them of their legislative power. The district court, affirmed by the Tenth Circuit, found that the parties had standing to sue and that the Guarantee Clause claim was justiciable, and that the case should go to trial.

Judges Hartz, Tymkovich, Gorsuch and Holmes all voted for rehearing--all four of George W. Bush's nominees to the Tenth Circuit. They penned three dissents.

Judge Hartz emphasized that the Supreme Court's decision in Pacific States Telephone & Telegraph Company v. Oregon was essentially indistinguishable, and that existing Court precedent finds the Guarantee Clause nonjusticiable. He writes, "But I am at a loss to find a principled basis on which to hold that the challenge in Pacific States was a political question while the challenge here is not." He explained that some, like Professor Lawrence Tribe, have disputed the validity of that case, but it is precedent that binds the Tenth Circuit.

Judge Tymkovich, joined by Judge Holmes, emphasized that the doctrine of legislative standing and the nonjusticiability of the Guarantee Clause were important issues that the panel got wrong. He explains, "The net result of the panel's decision ratifying standing is that just about any policy provision codified in the state constitution would be subject to legislative standing and attack on the theory of vote dilution"--including marijuana laws, school funding, casino gambling proceeds, and so on.

Judge Gorsuch had a different, fundamental problem:

Where are the judicially manageable standards for deciding this case? The burden of showing such standards exist usually presents a plaintiff with little trouble. Most cases in federal court — whether arising under congressional legislation or the common law or sounding in equity — come with ample principles and precedents for us to apply in a reasoned way, even if those principles and precedents don’t always dictate a single right answer. But in our case the plaintiffs make a rather novel claim: they contend that Colorado’s government is not a republican one — and so violates the Guarantee Clause — because tax increases proposed by the legislature must also be approved by the public. Where are the legal principles for deciding a claim like that?

Where are the legal principles for deciding a claim like that? The plaintiffs don’t say. They don’t suggest, for example, that the Clause requires all decisions about legislation to be made by elected representatives rather than the public. Neither do they contend that the Clause is offended only when all legislative decisions are made by direct democracy. If the Constitution could be said to contain one or the other of these rules — either forbidding any experiment with direct democracy or forbidding only the total loss of a representative legislature — we might have a principled basis for deciding the case. The former rule of decision might require judgment for the plaintiffs; the latter, for the defendants. But the plaintiffs in our case disclaim either such standard. They seem to acknowledge that some direct democracy is consistent with republican government, insisting only and instead that the kind here runs afoul of the Constitution.

And this is where we run into trouble. To date, the plaintiffs have declined to advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the Clause. No doubt, the task the plaintiffs face is a formidable one: they enter a field in which the Supreme Court has already dismissed for lack of judicially manageable standards a case challenging a state constitutional provision that allowed citizens to overturn by direct vote any state legislative enactment (not just enactments raising taxes). The plaintiffs enter a field, too, where the Supreme Court has more recently chosen to derive a multi-part justiciability test from its preexisting Guarantee Clause jurisprudence — in the process expressly reaffirming the idea that the Clause lacks judicially manageable standards for cases like ours.

The case seems likely to head to the Supreme Court. Whether it's the best vehicle to address the Guarantee Clause is another question--there's still the legislative standing issue that needs to be surmounted. But the case, as it stands, leaves much litigation to the imagination of enterprising legislators.