How ISL Proponents Deal With Arguments and Cases Cutting Against Them: Part Three in a Series

Posted in: Constitutional Law

In Parts One and Two of this series, I discussed the so-called Independent State Legislature (ISL) theory of Articles I and II of the U.S. Constitution, under which elected state legislatures are free to disregard generally applicable state constitutional constraints and federal courts are free to second-guess state courts on the meaning of state law. I also discussed how Republicans in North Carolina (and now Pennsylvania too) are invoking the theory this week to challenge state court rulings that rejected (and replaced) congressional district lines drawn by the state legislature. As my co-author (Akhil Amar) and I elaborate in an Article forthcoming in The Supreme Court Review (a draft of which is available on SSRN here), four Justices, drawing on arguments advanced in the Bush v. Gore litigation of 2000, flirted with the ISL theory (albeit not all at the same time and not in any case decided on the merits) in the run-up to the 2020 presidential election.   Part One of this series explained how ISL theory contravenes Founding-era understandings and expectations concerning what state legislatures were and how (non)independent they were.  And Part Two detailed a hundred-plus years of Supreme Court precedent rejecting ISL notions in federal election contexts, including Davis v. Hildebrandt (1916), Smiley v. Holm (1932) and Arizona Elected Legislature v. Arizona Independent Redistricting Commission (2015), and culminating in the 2019 decision in Rucho v. Common Cause,  (I do note that a hundred years ago there were rulings by the Court that could be read as embracing ISL theory in non-election, i.e., ratification of federal constitutional amendment, settings.)

So how did the four Justices in 2020 who seemingly voiced approval of ISL ideas (in the Article II, presidential, setting) deal with this history and these cases? In a few words, not so much.  Indeed, what is perhaps most astonishing is that none of the four current Justices (just one shy of the number needed to blow up presidential elections yet again as was done in Bush v. Gore) who invoked the ISL notion carefully engaged the manifold and manifest problems with the theory. No history, no discussion of state legislative practice, and no awareness, even, of the possibility that state legislatures have adopted laws reflecting a choice to enlist state courts to enforce state constitutional limits, an argument that provides its own distinct, sufficient, and devastating refutation of ISL ideology. No originalist or structural explanation for why Article II (or Article I) would ever single out one state lawmaking institution and immunize it from the state constitutional definitions and constraints to which it would ordinarily be subject. And no close analysis of cases such as Hildebrandt, Smiley, AIRC, and Rucho. Instead, Justice Kavanaugh cited Bush I—the Palm Beach County caseas if it had made law, even though the Court specifically “decline[d] at th[at] time to review the federal questions asserted to be present.” And, unfathomably, neither Kavanaugh nor Alito (both of whom have recently invoked ISL) even mentioned, much less distinguished, AIRC or the subsequent Rucho case embracing AIRC.

What about the North Carolina litigants (Applicants) who are now asking the Justices to issue an emergency stay blocking the rulings of the state courts?  They too do not engage Founding history and understandings of how state legislatures were bound by state constitutions and subject to judicial review under state constitutions by state courts. Nor do the Applicants address the fact that four of the six state constitutions adopted or amended shortly after ratification of the federal Constitution directly regulated federal election procedures rather than leave such regulation entirely to the state legislatures.

What about the Applicants’ treatment of judicial precedent?  Here again the Applicants don’t impress.  Even on the question whether lower courts are divided on validity of ISL theory, the Applicants are either very sloppy or they intentionally mischaracterize lower court precedent.  They say, in this regard, that the “federal appellate and state supreme courts have divided over the extent to which the Elections Clause countenances interferences by other branches in a state legislature’s [regulation of federal elections],” citing the U.S. Court of Appeals for the Eighth Circuit as having “invalidat[ed]” a Missouri Secretary of State’s “attempt to re-write” state laws concerning presidential elections.  (This is the only majority ruling they cite by a federal appellate panel.)  And yet the Eighth Circuit in the case they cite did not invalidate anything; it simply granted a preliminary injunction based on a determination that the challengers had shown a sufficient likelihood of success on the merits.  But any good lawyer knows that a finding of likelihood of success on the merits in a preliminary injunction setting is not the same thing as a determination on the merits, and does not create a clear split in lower court authority on the proposition in question.

More revealingly and inexcusably still, the Applicants spend precious little time or space explicitly describing and trying to distinguish any of the U.S. Supreme Court’s cases in the last decade.  It’s truly quite hard to understand how the Applicants can blithely assert that state courts are forbidden under Article I from enforcing state constitutional limits against state legislatures in the congressional districting setting and not mention—much less effectively deal with—the fact that less than three years ago the entire Court constitutionally approved state court power in this regard.  Readers of Part Two will remember that the Rucho Court described and blessed the 2015 ruling of the Florida Supreme Court in League of Women Voters of Florida v. Detzner, and in so doing expressly endorsed both the right of the Florida Constitution to constrain the Florida legislature, and the right of the Florida Supreme Court to interpret and implement that state constitution—even to the point of invalidating an enactment of the Florida state legislature. This Rucho passage was thus a square repudiation of ISL—both prongs.

The North Carolina Applicants appear to (obliquely) try to respond to Supreme Court precedent (and also to the fact that North Carolina statutes themselves, adopted and maintained by the state legislature, seem to authorize state judicial enforcement of the state constitution in this realm) in one set of arguments.  The Applicants assert that the North Carolina Supreme Court’s actions were constitutionally problematic not only insofar as the state court invoked the state constitution in rejecting the lines drawn by the elected legislature (running afoul of the core of the first prong of ISL theory), but also insofar as the state judiciary undertook the drawing of the congressional districts itself.  That latter action, they suggest, is adding insult to injury from the ISL point of view.  As they put the point, notwithstanding the result in the AIRC case, “all [the] Justices [there] agreed at a minimum that ‘redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.’”  And, as they go on, “[t]he North Carolina Constitution makes clear [that the] . . . legislative power of the State shall be vested in the General Assembly [and that] the state judiciary is not the ‘Legislature’ in North Carolina, nor any part of it.”

One problem with this argument is that the Florida Supreme Court, in the Detzner case the Supreme Court blessed in Rucho, clearly asserted it had the power to redraw congressional district lines as needed, and in so doing rejected precisely the argument the North Carolina Applicants assert:

the challengers . . . urge this Court to invalidate the whole map and either redraw it ourselves or order the trial court to redraw it . . . . The Legislature counters that this Court lacks the authority to do so, because a congressional redistricting plan may be enacted only by a state legislature pursuant to article I, section 4, clause 1, of the United States Constitution, which vests exclusive authority to regulate the time, place, and manner of congressional elections in state legislatures, subject only to oversight by Congress. Although we reject the Legislature’s argument that this Court has no authority to adopt a plan, if necessary, we decline the invitation to do so at this time. . . . The Colorado Supreme Court has explained that state courts are empowered to enact constitutional redistricting plans for the United States Congress “when the legislature fails to do so.” . . .  “In such a case,” the Colorado Supreme Court has reasoned, “a court cannot be characterized as ‘usurping’ the legislature’s authority; rather, the court order fulfills the state’s obligation to provide constitutional districts for congressional elections in the absence of legislative action.” Id. We agree . . .

But putting aside the tension between the Applicants’ stance here and the Detzner case the Court approved, the larger problem with the Applicants’ argument that courts can never draw district lines is that it proves too much, and does too little.  It proves too much in the sense that courts provide remedies all the time (when they strike down parts of statutes) that result in the implementation of regulations that never passed the legislature in the precise form in which these regulations become operative.   That is a generic aspect of constitutional remedies—the law that gets enforced after the exercise of judicial review is often something the legislature never actually adopted (but instead something the judiciary reasonably believes the legislature would have adopted had it known it could not enforce that which it did adopt.)  If state courts are impermissibly usurping legislative powers whenever they redo districts that run afoul of state constitutional constraints, then they are impermissibly usurping legislative powers in many other settings too.  Indeed, under the Applicants’ argument federal courts would be violating Article I when they redo districts that run afoul of federal constitutional constraints. (And a rejoinder here that the federal Constitution trumps state laws by virtue of the Supremacy Clause of Article VI does not do the trick, since a state constitution also trumps state laws under the Supremacy Clause’s ordering of the various kinds of laws.)

The suggestion that the North Carolina courts violated North Carolina’s constitution by inserting itself into a legislative process also does too little, because it does not explain why the U.S. Supreme Court must embrace one particular conception of what the legislative process in North Carolina consists of.  If states can incorporate governors in lawmaking processes (see Smiley) and can include the people directly in lawmaking processes (see Hildebrandt) and can use independent commissions rather than legislatures to perform lawmaking processes (see AIRC), then why can’t states confer onto state judges limited lawmaking roles.  Indeed, judges in most states make law all the time via the common law process, and are more democratically accountable (in that they may need to stand for election or re-election and are often subject to the power of recall) than are the members of the Arizona Independent Redistricting Commission whose creation was upheld in AIRC.  Members of that Commission were not elected, could not have held or run for other public office three years prior to their Commission appointment, and do not seem to be removable from the Commission by the voters.  Moreover, at least one of the five Commissioners couldn’t even be a member of one of the major political parties.  The North Carolina Applicants don’t have a clear answer for why the Commission can be considered a legislative body in this realm but a North Carolina court cannot.

Nor, relatedly, do the Applicants ever explain why, if North Carolina constitutional law is open to interpretation on this question, the proper interpreters of that law are not the North Carolina courts themselves.  It is true, of course, that giving the North Carolina courts the jurisdiction to decide whether they have power to do something (draw district lines) seems at first blush to raise a conflict of interest of sorts, but courts—including the U.S. Supreme Court—always have jurisdiction to decide if they have jurisdiction, subject to review from higher courts.  And the Supreme Court’s appellate review of state high courts is structurally and historically limited to the meaning of federal—not state constitutional—law.

All of this brings us back to a fundamental flaw of ISL theory—its failure to articulate any federal interest or norm, grounded in originalist understandings, structural expectations, or binding Supreme Court cases, concerning any specific state distribution of internal governmental powers.   Founding history and the last hundred years of U.S. Supreme Court precedent make clear that Articles I and II do not embody any general federal interest in implementing any particular intra-state separation-of-powers regime or any particular interpretative methodology for construing state statutes and state constitutional provisions.  Instead, under the Tenth Amendment, each state is free to distribute power among different institutions within the state as it sees fit, subject only to specific federal constraints found elsewhere in the Constitution or federal statutes.  That is the real meaning of federalism, and the one a Court ostensibly committed to protecting states from federal overreaching ought to keep firmly in mind.

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