The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye

Amid all the drama surrounding the fiscal cliff negotiations of the last few weeks, there was an important, sad, and in some respects troubling development in the U.S. Senate.  Hawaii Democratic Senator Daniel K. Inouye passed away, and Hawaii Democratic Governor Neil Abercrombie appointed Democrat Brian Schatz to replace him.  Schatz was sworn in, and will serve in the Senate until Nov. 2014, when an election will be held to fill the remainder of Inouye’s six-year term, which expires in January 2017.

This development is important because all personnel changes in the Senate are significant, especially in this era in which voting margins in both Houses of Congress can be razor-thin.  (We will perhaps see another change in the Senate’s makeup if Senator John Kerry from Massachusetts leaves the Senate in the coming months to replace Hillary Clinton as Secretary of State.)  The development is sad simply because Senator Inouye, a war hero, was, by all accounts, a hard-working, honorable public servant.  And the development is troubling because the way he was replaced doesn’t seem to have been constitutionally proper.

Under Hawaii law, the Governor is empowered (indeed, directed) by the legislature to fill a U.S. Senate vacancy until an election of the people of the state is held.  So far, so good.  The Seventeenth Amendment of the Constitution provides, in crucial part:

“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

This language clearly tells state legislatures to prescribe the procedures for replacement elections and also authorizes (but does not require) state legislatures to empower their Governors to make temporary U.S. Senate appointments so that the vacancies are filled in the meantime.

But here’s the wrinkle:  the Hawaii statute (and those of a very small number of other states) limits the Governor’s choice to one of three names submitted by the political party with which the fallen Senator was affiliated, in this case the Democratic Party.  Hawaii law provides: “the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent.”  The Democratic Party in Hawaii submitted three names, one of which was Schatz’s, from which the Governor was instructed to choose.

From one perspective, it would seem to make sense to limit the Governor to picking someone who is from the same political party from which the fallen Senator came; death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the Senators.  Yet there is a very strong case to be made that the Seventeenth Amendment prevents the Hawaii legislature from substantively constraining the Governor’s choices in making a temporary appointment.

The Textual Argument Against the Hawaii Statute

Let us begin with some textual points.  The Seventeenth Amendment’s language differentiates between a state “legislature” and a state “executive” authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.”  This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy.  By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

If the drafters and ratifiers of the Amendment had expected the state legislature to have a significant role in the Governor’s execution of his appointment power with respect to temporary Senate appointments, the Amendment could very easily have included some phrase like “as the legislature has directed” or “subject to the legislature’s requirements” right after or before the clause referring to the Governor’s statutorily created power to make appointments.  Yet it does not.

It is true that the Amendment does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether.  But the power to decide whether the Governor should be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look at the Appointments Clause of the federal Constitution, in Article II.  That Clause gives Congress the power to “vest” appointment of inferior federal officers in the President alone, or in Cabinet members.  But Congress’ power to vest appointment authority in the President or a Cabinet Secretary does not give Congress the power to generate a list of three names from which the President or Secretary can be forced to choose.

Moreover, Congress should have more power in this regard than do state legislatures under the Seventeenth Amendment; Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.

The upshot, then, is that while state legislatures can deny Governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to authorize gubernatorial temporary appointments, they cannot unduly constrain Governors’ exercise of that power.

The Historical/Structural Case Against the Hawaii Approach

Disempowering the legislature and political parties to impose substantive constraints also makes a great deal of historical sense, given that the overall goal of the Seventeenth Amendment was to get state legislatures—and the party cronies who were thought to control state legislators—out of the business of deciding who should serve in the U.S. Senate.  Indeed, if the history of the Seventeenth Amendment reveals anything, it is the distrust and skepticism Progressives had concerning the influence of political parties in the legislative process.  Those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies.  This vision of party secrecy and backroom party deals cut by a few persons, who could not be counted on to represent the public’s interest, was often described in terms of party machines or party “bosses.”  As towering Senate historian George Haynes put it, “[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters.”

In 1911, Indiana Senator Beveridge, speaking on behalf of one of the many constitutional proposals of what became the Seventeenth Amendment, voiced this assessment of party influence and distortion:

Political parties . . . elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State . . . .  It must select a man of the party which elected the legislature . . . .  So it comes to pass that Senators actually have been . . . selected by the “party managers” . . . .  The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.

The part of Hawaii law that delegates to party chiefs the task of generating a short list seems to run quite counter to the historical anti-boss spirit of the direct election drive.

Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.

Some might also argue that governors today are essentially party bosses, whether we call them that or not.  But this misses the point that governors (unlike Party central committees) are elected—by the very people of the state in whom the Seventeenth Amendment vests ultimate power to select U.S. Senators. And governors—like U.S. Senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment’s textual preference for governors over state party officials and state legislators; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but malapportioned, legislatures in this context because governors are elected the exact same way in which the Seventeenth Amendment requires Senators to be picked. In short, my proffered reading of the Seventeenth Amendment’s text seeks to harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

The Interest in Promptly Filling Senate Vacancies (Which Is Even More Pressing Today) Argues Against Allowing a Legislature to Constrain the Governor’s Choices

The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate’s ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform.  It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why after the Seventeenth Amendment was enacted, almost every state has empowered its governor, on some terms or another, to make temporary appointments even before replacement elections can be promptly held.

But (as explained below) since governors under the terms of the Seventeenth Amendment can’t be forced, rather only empowered, to fill vacancies by temporary appointment, a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is the one most likely to result in the prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers that are given to them if they don’t like the constraints) could increase the likelihood that vacancies go unfilled during the period before the election is held.

Can Governors Be Forced to Make Senate Appointments?

There is another way in which the Hawaii statute likely impermissibly constrains the Governor, as well.  Not only does the statute purport to limit the Governor to three party-generated choices, but it also purports to require him to make an appointment, by its use of the word “shall.”

But this, too, seems problematic, under a careful reading of Section 2 of the Seventeenth Amendment. That provision says state legislatures “may empower” (emphasis added) governors to make temporary appointments, until the people fill the vacancies by election. “Empower” does not mean “require”; rather, it means “to create the power to do or not do something.”  The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment’s words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.

Thus, it is not at all clear that governors must exercise temporary appointment authority, even when that authority is validly created by the legislature.

The Senate Should Have Looked Into These Questions Regarding the Schatz Appointment

Some observers may argue that the federal courts, using the so-called “political question” doctrine, would be disinclined to interfere with the Senate’s decision whether or not to seat Mr. Schatz.  And perhaps this is true.  But that doesn’t mean that questions about the propriety of his appointment should have gone unexplored.

The Constitution makes each house, including the Senate, the “Judge of the . . . Qualifications of its own members.” So if a majority of Senators believe that the constitutional flaws in Hawaii’s statute that I have identified are unseverable from the part of the statute that authorizes the Governor to make temporary Senate appointments in the first place, then the Senate could have legitimately concluded that there was no valid “empower[ment]” of the Hawaii Governor under the current scheme, and could have rejected as unqualified (and therefore refused to seat) anybody the Governor appoints, including Mr. Schatz.

Under this—quite plausible—scenario, the vacancy from Hawaii would have remained unfilled until either a popular election had been held, or until the Hawaii legislature passed a new gubernatorial authorization that would be free of the impermissible restraints.

The Senate should have stepped up to its interpretive duties; alas, it does not appear to have done so, and that is unfortunate.  Happily, the Senate passed the fiscal cliff avoidance bill lopsidedly.  But if Senator Schatz’s vote had been crucial to the outcome, then a cloud surrounding his appointment could have ripened into major constitutional problems.