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Friday, June 08, 2007

Is Wyoming's Senate Vacancy Plan Constitutional?

My colleague (for a few more days anyway) Vik Amar has a delicious commentary up at Findlaw on Wyoming's law to fill Senate vacancies.  In short, he thinks the plan is unconstitutional under the 17th Amendment.  The 17th Amendment requires that

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.

Wyoming's law doesn't merely "empower" the Governor to make an appointment; it requires him to do so.  Worse, it constrains his discretion by forcing him to choose from a list.  These may be unconstitutional design features, Amar argues -- and he furnishes some analysis of how this may all play out.

This column is a must-read.  My own little addition to the argument would be to highlight another weak intratextual argument from Art III jurisdiction: "with such exceptions,and under such Regulations as the Congress shall make."  So, if the executive empowerment under the proviso in the 17th could be subject to "exceptions" or "regulations" by a state legislature, we'd expect to see
such a clause.

Posted by Ethan Leib on June 8, 2007 at 06:35 PM in Article Spotlight | Permalink


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The intra-textual argument becomes clear when carried to the limit. Imagine the following scenario -- The State Legislature, under the undisputed and veto-proof control of one party (as for example is currently the case in Texas)simply changes the apointment system so that instead of picking from a list of three, the Governor would instead, "....'choose' from a list of candidates consisting of one or more persons which list shall be prepared and submitted by the leader of the Republican Party for the State of Wyoming and ratified by the chairman of the Republican National Committee, provided however that if the sitting President of the United States shall at such time be a Republican, any such list shall be subject to the further and final editing, selection and approval of the President of the United States. In the event that the President is a member of any other political party, then the President of the United States will have no role in the determination of the list of candidates. Further, if the sitting Governor of the State of Wyoming should at the time of any such vacancy be a Republican, then the selection of the replacement for any such vacant seat shall be at the sole discretion of such republican Governor. This provision for the replacement of any vacant seat of the Senate of the United States or the House of Representatives shall not be ammended or changed without the approval of a 2/3 majority of the Republican members of the State legislature."

It would be manifestly obvious from such a legislative restriction that the intent of Article 17 had been completely suborned and defeated. The sitting Republican majority would have jerry-rigged a selection procedure such that only Republicans could ever be selected to fill a suddenly vacant position. In fact the above procedure would have given the power to appoint the successor to the Republican President of the US with the Wyoming Governor simply "rubber stamping" the Republican choice. The current procedure is merely 2 names different from the procedure described above. The "fig leaf" of selecting three names is merely that - a fig leaf; an artifice designed to disguise the reality that the system has been fixed in order to eliminate the Governor's role in selecting a replacement - in direct violation of the spirit and letter of Article 17.

It does NOT go without saying that if the legislature can empower the Governor to select a replacement, that it can place strictures on the selection process. There is no such tautology in American politics. That the current governor consents to the system does not make it constitutional, it just makes it politically expedient.

I am supremely confident that the moment a Democrat is elected to the US Senate from Wyoming, the Republican legislature will change this procedure to make sure the Democrats have no role in selecting a replacement should one occur. It is functionally no different than the Texas State legislature simply calling for re-apportionment whenever it chooses to entrench their political majority and ensure the defeat of Democrats and thwart the will of the people as all power mad political parties have done through the ages. I note, before the knee-jerk "Dems do it too" start filling these pages, that the overwhelmingly Democratic majority California legislature has NOT indulged itself in these kinds of naked power grabs for which Republicans are so justly and widely famous.

There are in fact virtually no similar examples of Democratic power grabs to match the mendacity of Republican legislatures throughout the United States as they take every step possible to undermine our system of free elections, restrict or eliminate the right of the people to vote (unless they are Republicans) and destroy the concept of majority rule in America. Look around you, everywhere you have a Republican legislative majority you see legislation to enact literacy tests, poll taxes, ID rules (with no corresponding system for issuing such IDs) and to eliminate automated voting equipment in Democratic majority districts.

This bizzarre procedure to replace the Senator in Wyoming is just another example of the Republican disdain and contempt for the rule of law and the U.S. Constitution - begun under Reagan and perfected under Bush II and fully supported by the Republican-led Supreme Court.

Posted by: Ben | Jun 16, 2007 3:17:31 PM

What if Wyoming's governor appoints someone from the list but does not state whether he felt compelled to pick from that list. In that case, the governor could have found the allegedly unconstitutional parts of the Wyoming legislation severable, but picked from the list for purely political reasons. In this hypothetical, how should the Senate -- assuming that it takes seriously its obligation to judge the qualifications of members -- react?

Posted by: Joe | Jun 11, 2007 10:45:24 AM

I would say, though, that if the Governor simply decided that he wouldn't appoint anyone, I don't think it would be the place of the Wyoming or Federal courts to tell him otherwise! Let the Wyoming legislature (which is Republican-controlled) and the Governor (a Democrat) sort it out! It would be an interesting political fight, and a nice alternative to the tedium of recent national politics, no?

Posted by: Adam W | Jun 10, 2007 2:58:24 PM

To attach conditions to the empowerment is functionally equivalent to retaining appointment power itself

But is it really the functional equivalent?

The Wyoming statute sets forth conditions and procedures, and ultimately leaves to the governor the power to select which of three candidates will be appointed. That procedure strikes me as little different from the formal and informal procedure that has constrained the President in making appointments since the very first congress, when the Senate and President, in the Benjamin Fishbourn episode, established the rule of "senatorial courtesy," giving Senators great power in appointing officers. I wouldn't say that that custom has been an abridgement of the constitutional appointment clause.

In any event, I certainly do agree that this is the sort of subject on which reasonable people can (and apparently do!) disagree.

Posted by: Adam W | Jun 10, 2007 2:54:40 PM

I perfectly conceded that my intratextual argument was a "weak" one. But I don't think you've settled the matter of whether the argument works. Of course there are distinctions between the Art III context and the 17th Amendment context. Still, both provisions give one institutional body the right to define the contours of another institutional body's powers through legislation. In the Art III case, the legislature seems to be given more discretion, as evidenced through the 'exceptions or regulations' clause. Or so the weak argument goes. Almost every intratextual argument is susceptible to spin -- and this is a weaker one than most.

But I'm very confused about how your helpful discussion of the differences between Art III and the 17th leads to your ultimate conclusion about the merits of Amar's argument. I suppose I agree that one could at least plausibly make a 'greater power includes the lesser power' type of argument, as you suggest. But I think Amar's argument is stronger, drawing precisely on the point you use to argue against my friendly amendment. The power to CONFER the appointment power doesn't seem like it is meant to be read as a power to make the appointment itself. Accordingly, I don't think the state legislature has any appointment power to reserve to itself. To attach conditions to the empowerment is functionally equivalent to retaining appointment power itself, something you rightly highlight is not what the 17th envisions. Reasonable people could differ about this analysis, of course.

Posted by: Ethan Leib | Jun 10, 2007 1:09:39 PM

I think you may be off base with your intratextual point. Article III itself creates the outer limit of the court's appellate jurisdiction, but then reserves to Congress the power to make exceptions and regulations.

By contrast, the 17th Amendment doesn't give the state executive the power to appoint interim replacements; rather, it merely gives the state legislature the option to make that grant itself.

In order to make your intratextual argument, the Seventeenth Amendment would need to directly confer the state executive with the power to name the interim replacement. Only then would the absence of a parallel exception would be instructive.

With that in mind, then, I don't find Professor Amar's argument all that convincing. If the Wyoming Legislature has the power, in the first instance, to empower the Governor to make an interim replacement, then I'd say that it's quite reasonable to conclude that the legislature has the power to limit or otherwise tailor the empowerment.

Posted by: Adam W | Jun 10, 2007 12:05:00 PM

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