(Yet) Another Reason ISL Theory is Wrong About the Meaning of the Term State “Legislature”: The Constitution’s References to the Federal Counterpart—“Congress”

Posted in: Election Law

Now that the Supreme Court has wrapped up a rather eventful term, eyes are beginning to turn to next year’s cycle, which could also be very consequential. The affirmative action cases involving Harvard and the University of North Carolina are high stakes for sure, but perhaps the most important case is one on which the Justices granted review just before winding down for the year.  I speak here of the North Carolina partisan-gerrymandering dispute (Moore v. Harper) involving the so-called Independent-State-Legislature (ISL) theory. As I have explained at length in prior posts, including this one, the theory posits that because the U.S. Constitution uses the term “legislatures” of the states in Articles I and II in connection with the regulation of federal elections, elected state legislatures are free from state-court enforcement of state constitutional limits on legislative power as far as federal elections are involved. In other words, if an elected state legislature wants to regulate the election of members of Congress or the President in ways that violate the Constitution of the state, there is nothing any other organ of state government—the governor, the courts, the people themselves—can do about that. Elected legislatures are, under the theory, free from any constraints the states themselves, via the state constitutions, seek to impose.

As I have argued at length and repeatedly (and probably repetitively), the theory simply doesn’t work for several fundamental reasons. As a textual matter, Article II (the presidential-election context where modern ISL theory was resuscitated in 2000 in Bush v. Gore and then again in 2020) doesn’t even say what ISL folks (carelessly) suggest it does; the clear text of Article II (“Each state shall appoint, in such Manner as the legislature thereof may direct [presidential electors] . . . .”) empowers “states,” not state “legislatures,” and with respect to state “legislatures” says only that they “may”—not that they “must” or that they “shall”—be involved in setting presidential selection rules. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the state constitution that creates, defines and limits it. Precisely who comprises the legislature for each particular purpose, what processes the legislature must use, and what substantive lines the legislature may not cross are all questions that can be answered only by looking at and heeding the state constitutions, whose supremacy over elected state officials the framers well understood, and in fact codified in the Supremacy Clause of the U.S. Constitution. It is no wonder, then, that historical practice by states, directly preceding and directly after the adoption of Articles I and II, is repeatedly and sharply inconsistent with ISL notions insofar as state constitutions, both before and right after 1787, did purport to regulate elected legislatures even (and sometimes specifically) in the realm of federal elections.

The statutory enactments of state legislatures themselves over the course of American electoral history also undermines ISL arguments, as does unbroken Court precedent from the early 1900s through the last decade. (For more on all this, interested readers can scour a law review article I co-authored with Akhil Amar that is viewable here and slated to be published any day now.)

All of these arguments, separately and together, are compelling.  But when something is as wrong as ISL is, the more you examine it, the more you see additional evidence of its wrongness. In the space below, I lay out another, heretofore unexamined, way in which ISL theory makes jejune and unsupportable assumptions about the meaning of constitutional text.

One easy starting point to access this additional argument is the Supreme Court’s seminal 2015 case rejecting ISL, Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC). In AIRC the Court ruled that Article I, notwithstanding the mention of state “legislatures,” permitted the people of Arizona, via their state constitution, to do congressional redistricting through an independent redistricting commission created by a popular initiative—a commission not controlled by the regular state legislature. Arizona’s elected legislature had argued that Article I prevented the state from giving the power to draw congressional districts to an entity distinct from the ordinary state legislature itself.

In rejecting this ISL argument, the AIRC majority opinion penned by Justice Ruth Bader Ginsburg emphatically held that when the U.S. Constitution refers to a state “Legislature” in the context of a provision, such as Article I, calling for state lawmaking and fashioning of regulatory policy, use of the word “Legislature” does not seek to empower a particular body of state government but instead seeks to invoke the state lawmaking process as prescribed by the state constitution. Such use of the word, the Court said, is distinguishable from instances in which the U.S. Constitution involves state “legislatures” in non-legislative contexts, such as ratification of federal constitutional amendments under Article V. As the Court explained, quoting from an earlier case, “the meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.”

In other words, sometimes state “legislature” in the U.S. Constitution refers to a particular body, but other times (as in Articles I and II), when state policymaking is contemplated, the reference to “legislature” is effectively a reference not to an entity but to a lawmaking process that is prescribed and governed by the state constitution.

This insight—that a word in the Constitution can mean different things in different clauses—is completely correct. Even the most ardent “intratextualist”—that is, someone who tries to understand the constitutional meaning of a word in one provision by reference to how the word is used in other provisions—understands that the particular constitutional context in which a word appears is important to its specific meaning.

Which brings us to an unnoticed but powerful analogy. To buttress her important point here, RBG could have drawn on a similar interpretive phenomenon applicable to the word the Constitution uses to describe the federal lawmaking counterpart to state legislatures, namely, “Congress.” The word “Congress” appears in the Constitution 64 times. In 25 or so uses, the context makes clear that the word is describing the House and Senate, but not the President. (Good examples are references to the “sessions” of Congress, or to the President’s power/duty to address or provide information to Congress.) But in over 35 uses (more than half the time), the Constitution refers to Congress in a way that has been rightly understood to empower Congress to make important decisions not unilaterally but only with presidential involvement via lawmaking. Thus, more than half the time “Congress” does not refer to a specific body or entity, but rather to a lawmaking process (that the U.S Constitution elsewhere spells out as involving bicameralism and presidential presentment.) Some of these 37 or so references empower “Congress” to act “by law” (or an equivalent phrase), or are housed in parts of Article I, section 8, in ways suggesting they seem to be covered by Article I’s lawmaking provisions, so those references may be said to explicitly or implicitly invoke lawmaking processes and presidential involvement. But, importantly, more than a dozen of these references to congressional power to decide important questions occur outside of Article I, section 8, and do not include a “by law” qualifier or its equivalent. Yet these many references have nonetheless been understood, by Congress itself, as well as by the President and the Supreme Court, to mean and require ordinary legislative process subject to presidential involvement. These instances include very important federal functions, such as the admission of new states, the approval of interstate compacts, the approval of state duties on imports and exports, the setting of timelines for presidential elections, the regulation of federal property and territories, among others. In each of these settings, the reference to “Congress” has, because of the setting and context involved, been properly understood as a reference to a lawmaking process rather than to a particular entity.

So how ought that play out in the North Carolina Moore v. Harper case? Article I, section 4, says congressional election rules “shall be prescribed in each state by the legislature thereof,” subject to federal legislative override. Does it make sense, in this context, to think that state legislatures (even assuming they could be defined without looking at each state constitution) are being singled out as all-powerful entities, rather than to think the reference was to a state legislative process? It’s hard to see how the ISL reading can be defended here. Article II (as observed above) uses words that do not confer any particular power on state legislatures, so one question would arise: why would state legislatures be given more plenary power in congressional—as opposed to presidential—elections? And wouldn’t it be particularly odd to infer plenary power by state legislatures over congressional elections when Article I, section 4 provides for a federal override—a backup provision reflecting distrust of, not blind deference to, state entities here. Now let’s throw in another contextual factor: under Article I, section 2, the qualifications to vote in state (and congressional) elections are governed by the states—under the terms of the state constitutions—not to the state legislatures. So state legislatures don’t get to decide (the all-important question of) who can vote (that choice is determined by state constitutions); state legislatures don’t get to decide the rules for presidential elections (Article II gives that power to states, via their constitutions, and to Congress, as to presidential election timelines); and state legislatures, in congressional elections, are subject to federal override. So the textual evidence that state legislatures enjoy some special power here comes from . . . . where, exactly?

We shall see what the Court does with ISL. But the more one looks at founding history and founding ideology, modern Supreme Court precedent, and the words and general structure of the Constitution itself, the weaker and weaker the ISL “theory” becomes.

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