Category Archives: statutory interpretation

Carolyn Shapiro: “Moore v. Harper and state courts”

legislation and legislatures, statutory interpretation, Supreme Court

The following is a guest post from Carolyn Shapiro:

As others have already noted, the Supreme Court’s opinion in Moore v. Harper fortunately eliminated the most chaotic possible outcome and reiterated what has always been understood to be true — state legislatures are subject to the constraints of state constitutions and the oversight of state courts when they regulate federal elections. But as also been noted, the Court did not eliminate the possibility of federal court oversight of decisions made by state courts construing and applying their own constitutions and statutes. Nor did the Court provide much insight into what standard would apply to determining when a state court has gone too far.

This aspect of the decision means that uncertainty and lack of clarity persist, but I don’t think that any of us should be surprised. It was, in my view, implausible that the Court would disavow any role for federal judicial oversight of state court decisions involving federal elections, nor do I think that it should have. And while I would have preferred the Court to use narrower language, I think that the majority’s invocation of Justice Souter’s Bush v. Gore opinion is somewhat reassuring. In that opinion, Justice Souter stated expressly that disagreement over the interpretation of a statute is well within the bounds of ordinary judicial review and thus should not give rise to federal judicial intervention.

But I want to elaborate on the suggestion by Derek Muller and Ned Foley that the opinion puts “state courts on notice,” and in particular respond to Ned’s argument that what state courts should now know that they can’t do is “judicial alteration of an unambiguous state legislative rule, based on nothing more than a vague provision of a state constitution unambiguous statutory language” the way, he says, the Pennsylvania Supreme Court did in 2020.

I disagree with Ned’s characterization of what the Pennsylvania Supreme Court did in 2020 as an obvious overreach, and I think that if state courts (and the Supreme Court) follow this path, it could have consequences for the development of state law. Explaining that requires a bit of a deep dive into the Pennsylvania opinion and the history of the relevant statute, which I discuss in detail in my article on the ISLT in the University of Chicago Law Review and will summarize here.

Continue reading Carolyn Shapiro: “Moore v. Harper and state courts” →
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About That Black’s Law Dictionary Definition of Facilities Cited by Justice Alito in His WSJ Defense of Not Reporting the Free Ride on the Private Plane of a Billionaire Litigant…

conflict of interest laws, legislation and legislatures, statutory interpretation, Supreme Court

In my earlier post on Justice Alito’s laughable defense that he did not have to report the free ride on the private plane because it was “hospitality … on …facilities” owned by a person, I noted that one of the sources Alito cited was Black’s Law Dictionary. (The relevant part of Alito’s discussion: “Legal usage is similar. Black’s Law Dictionary has explained that the term ‘facilities’ may mean ‘everything necessary for the convenience of passengers.'”) I noted that I could not find it in the current version of Black’s Law Dictionary.

But now, via a 1911 Supreme Court of Oklahoma case, I found the relevant citation in Volume 19, Page 106 of a 1905 treatise, the Cyclopedia of Law and Procedure. The section provides a number of definitions of “facilities,” including the part that Justice Alito only partially quoted: “Applied to railroads it means everything necessary for the convenience of passengers and the safety and prompt transportation of freight.”

Here’s the full discussion of “facilities” in the Cyclopedia, and a mighty thin reed to hang Justice Alito’s hat on that he could ride on a private jet of a billionaire litigant without reporting it, particularly when the statute itself allows only an exception for personal provision of “food, lodging, or entertainment:”

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Justice Alito’s Bad Textualism Extends to His Mangling of Words to Justify Not Reporting a Seat on a Private Jet Paid for by a Billionaire Litigant

conflict of interest laws, ethics investigations, statutory interpretation, Supreme Court

Years ago in conversation with an originalist and textualist, the person I was speaking to defended originalism and textualism as constraining judges. The counterexample on the right was Justice Alito voting his values. The idea is that if all judges embraced these supposedly neutral methods of interpretation, their values would matter less, and this would be good for everyone on the left and right.

I’ve always been skeptical about these claims, and believe that in the most salient cases (the ones that make the front page of the New York Times) a justice’s values matter the most whether or not they claim they are doing originalism and textualism. (I make this argument most fully in my book on Justice Scalia’s jurisprudence, The Justice of Contradictions.)

Justice Alito didn’t start off a textualist but in more recent years, he has purported to be one. But his purported textualism never constrains his bottom line, which is relentlessly tied to his socially conservative values. I developed this argument most fully in my Senate Judiciary Committee testimony analyzing Justice Alito’s particularly poor textual analysis in Brnovich v. DNC. Justice Alito completely mangled the words of Section 2 of the Voting Rights Act to create a state-friendly test that severely weakens the Voting Rights Act in the context of vote denial claims. He made a similar move in his dissent in last week’s Allen v. Milligan case.

So it should be no surprise that Justice Alito engaged in bad faith (and simply bad) textualism in his attempt in the Wall Street Journal opinion pages to prebut a Propublica report that showed that he took an unreported trip on a private plane owned by billionaire Paul Singer to go to a lodge (paid for by another person) in Alaska for a fishing trip. Propublica estimates that such a ride could cost $100,000 (though Alito said the seat would have been empty if he didn’t take it, somehow rendering the free seat valueless).

Justice Alito argues that he need not have reported the free travel on his disclosure forms under the rules as they existed because (now quoting Alito quoting the rules): “[p]ersonal hospitality need not be reported,” and “hospitality” was defined to include “hospitality extended for a non-business purpose by one, not a corporation or organization, . . . on property or facilities owned by [a] person . . .” 

Now one problem with this is that it was not clear that this was “personal” hospitality. Justice Alito goes out of his way to say multiple times that he barely knew Paul Singer (despite Singer being on the trip, introducing Alito at FedSoc events, etc.) This is an argument that boxed Alito in, as Charles Geyh told Propublica:

“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.

But the even weaker part of Justice Alito’s textualist argument is arguing that transportation (on a private jet) constitutes “hospitality on … facilities” owned by a person. Here’s what Justice Alito says about this in his WSJ piece:

The term “facilities” was not defined, but both in ordinary and legal usage, the term encompasses means of transportation. See, e.g., Random House Webster’s Unabridged Dictionary of the English Language 690 (2001) (defining a “facility” as “something designed, built, installed, etc., to serve a specific function affording a convenience or service: transportation facilities” and “something that permits the easier performance of an action”). Legal usage is similar. Black’s Law Dictionary has explained that the term “facilities” may mean “everything necessary for the convenience of passengers.” Federal statutory law is similar. See, e.g., 18 U.S.C §1958(b) (“ ‘facility of interstate commerce’ includes means of transportation”); 18 U.S.C §2251(a) (referring to an item that has been “transported using any means or facility of interstate commerce”); Kevin F. O’Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice and Instructions §54.04 (February 2023) (“the term ‘uses any facility in interstate commerce’ means employing or utilizing any method of . . . transportation between one state and another”)

This analysis is, to use a techical legal term, bullshit. The ordinary speaker of the English language would not refer to a ride on a plane as hospitality on Singer’s “facilities.” (It might apply to use of the bathroom on the plane, a different meaning of “facilities”.) Under the noscitur a socciis canon, a word is known by the company it keeps. Here, facilities appears with the term “on property or facilities,” and the ordinary reading here would be on real property owned by a person, not on a plane, boat, or car.

Justice Alito mangled the Random House definition of “facilities,” trying to bootstrap the definition’s meaning because the definition included the example of “transportation facilities.” See here:

As used in the Random House definition, an airport might be a “transportation facility,” not an airplane.

The Justice also purported to quote Black’s Law Dictionary. I searched Black’s Law Dictionary on Westlaw in many ways and I cannot find the phrase “everything necessary for the convenience of passengers.” (Update: more on the origins of this phrase in this later post.) Perhaps that phrase is in an earlier version of that dictionary but without a citation I cannot check. And those technical legal definitions of a “facility in interstate commerce” that Alito cites—those are technical uses of the word. 18 U.S.C §1958, which Justice Alito quotes, is a statute making it a federal crime to engage in murder for hire in certain circumstances!

There is no reason to believe that the reporting requirements for judges should be read in their technical sense rather than in the sense that an ordinary reader would give to the words. That’s Scalia Textualism 101. Ordinary parlance says that a free ride on a plane is not “hospitality on facilities” owned by a person.

In the end, the reporting requirement is aimed just at this: an ordinary reader would expect (and the public would want to know) if a Supreme Court Justice got a ride on a private jet paid for by a billionaire with business before the Court. Anyone who says otherwise upon reading the reporting rule is not engaged in honest textualism.

Justice Alito’s textualist prebuttal a masterstroke? More like a horrible embarrassment.

UPDATE: It is far worse than my original analysis from last night shows. Justice Alito’s reference to “facilities” was quoting from the filing instructions. The statute itself exempts only “food, lodging or entertainment received as personal hospitality of an individual….” 5 U.S.C. s 13104. A plane is not food, lodging or entertainment (though perhaps Alito slept on his flight and would claim lodging!). Kathleen Clark develops this argument here.

Further, if Singer’s corporation owned the jet, rather than Singer personally, the exception would not apply even on Justice Alito’s own terms, because the instructions exclude corporate-owned facilities.

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Textualism and 1874

statutory interpretation

Should some older statutes be getting a radical makeover?

On Thursday last week, a Fifth Circuit panel released a decision on qualified immunity.  Judge Don Willett, a frequent critic of the doctrine, wrote for the majority … and then separately concurred with his own opinion, to lift up a recent piece by Professor Alex Reinert.  The article points out that Section 1983 — the primary civil rights cause of action by which private citizens sue state and local government officials for violating federal rights, and the primary vehicle for importing doctrine on qualified immunity — was passed in 1871 with a provision that “explicitly displace[d] common-law immunities.”  It’s just that that pivotal provision wasn’t pulled into the 1874 compilation of federal statutes that forms the basis of what we now know today as the U.S. Code.

This was hardly the 1874 compilation’s only screw-up.  I’ve also written recently about the mess in 1874, and the way it seemed to change the meaning of the 1845 statutory provision at the heart of some 2020 claims that state legislatures could just appoint their own presidential electors if they didn’t like the voters’ results.  (Said provision was recently amended in the Electoral Count Reform Act, rendering the 1874 adjustment thankfully less relevant going forward.)  Lots of other errors were found even at the time.

So — lawyers, law students, and faculty seeking federal circuit citation: there’s probably more gold in them hills.  If the statute you’re looking at has roots before 1874, might be worth double-checking whether the thing you’re reading actually resembles the thing Congress passed.

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What Difference Would It Make If the Supreme Court in the Moore v. Harper Case Embraced the Bush v. Gore Concurrence Rather Than a Full-Throated Independent State Legislature Theory?

Bush v. Gore reflections, legislation and legislatures, statutory interpretation, Supreme Court

In my earlier recap of today’s oral argument in Moore v. Harper (transcript here), I suggested that the middle ground position that the three Justices in the middle might embrace would be bad but not awful compared to the position embraced by Alito, Gorsuch and Thomas. I want to unpack that here, in the context of all the talk at oral argument about sky high deference to state court rulings etc. And this involves understanding the position of the concurrence in Bush v. Gore and the position of the court in the earlier Bush v. Palm Beach County Canvassing Board case.

Under the vision of ISLT embraced by the Legislators’ today through David Thompson’s argument, a state court has no role to play in applying the state constitution to limit a state legislature’s actions in federal elections. Even assuming the state was applying the state constitution exactly correctly—as Thompson conceded the Court did for purposes of making his argument—the state violates ISLT. There is no role for the state constitution. So imagine a state rules (as PA’s Supreme Court did) that the state constitution’s provision protecting free and fair elections required extending the deadline set by the Legislature by 3 days for the receipt of absentee ballots during a pandemic. Under this version of ISLT, this rule cannot apply to the federal candidates on the ballot. So late arriving ballots would count for state elections but not federal elections. (It would also seem to call into question all of the rulings of state election administrators interpreting state statutes, as I argue in my amicus brief, though Thompson tried to distinguish such cases as oral argument: “First of all, our theory does not relate to the interpretation of statutes.”)

In contrast is the approach that seemed to be floated by Justice Kavanaugh, and to a lesser extent the Chief Justice and Justice Barrett: that of the Bush v. Gore concurrence. Recall in Bush v. Gore the majority held that the recount ordered by the Florida Supreme Court violated the equal protection clause because it treated some voters as worse than others. The Rehnquist concurrence, joined by Justices Scalia and Thomas) held that when a state court engages in grossly unfair interpretation of a state election statute, that could usurp the power of the state legislature. (In Bush v. Gore, it was the legislature’s power under the parallel Article II authority for presidential elections, not the Article I, section 4 authority for congressional elections.) This was kind of the theory that Neal Katyal for the Common Cause respondents was arguing as a backup. There are going to be some really crazy interpretations of state law that would be unconstitutional. (There was some discussion if there’s a different standard in statutory cases like Bush v. Gore or constitutional standards under Bush v. Palm Beach County Canvassing Board. I don’t think that there’s any real holding in Palm Beach County because that case was a remand for more information, and no holding that a crazy interpretation of the state constitution necessarily usurps the legislature’s power unconstitutionally.)

Under this alternative theory, state court retains a role in applying a state constitution to limit what a state legislature does in regulating federal elections. But when it engages in a really crazy interpretation of a state constitution, then the Supreme Court can step in. To return to the example of the extension of 3 days for the return of absentee ballots during the election, the question would be whether such an interpretation of the state constitution—given the text of the statutory provision and given the history of application of the statute—is so novel and crazy as to become unconstitutional.

This version of ISLT would still be bad: we would have the Supreme Court second-guessing state supreme court rulings in highly charged election cases sometimes during contentious presidential elections. That’s why it’s bad. But it is not as awful as cutting courts out completely of the business of protecting voters’ constitutional rights under state constitutions in federal elections. That theory would lead to chaos in the courts, as my amicus brief shows.

Now I do think that there is a better limiting principle here, which is kind of parallel to the crazy interpretation argument: it’s a due process problem. Guy says that what you call it doesn’t matter much where this theory is found by I disagree for two reasons. First the due process clause prevents arbitrary and capricious government action. That’s the appropriate standard to use to decide if the state court has gone way too far. That kind of power would not be bad if the Supreme Court applied it rarely and judiciously. (It’s an interesting question whether it should have applied in Bush v. Gore. My view now is that this was a close call, and that the mainproblem in Bush v. Gore was the failure to remand for a revised recount under a non-arbitrary standard). The due process standard us extremely deferential. Further, the theory would apply to both federal and state elections. So one would not have a ruling that would apply only to federal races on the ballot but not state races.

One final point: if the Court adopts the Bush v. Gore concurrence-version of ISLT in this case, it’s not clear who wins the case given Thompson’s concession. Thompson did not argue that the NC Supreme Court ruling was crazy. Remember, he says any ruling on constitutional grounds is impermissible. So a 6-Justice majority siding with Common Cause? Or a 3-3-3 split where the 3 Justices in the middle decide whether or not the ruling of the NC Supreme Court was crazy? Or asking for more briefing? (One problem with that last course is that the case could become moot. The new Republican majority on the NC Supreme Court is sure to disavow the partisan gerrymandering theory at some point down the line.)

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Analysis: Supreme Court in EPA Case, Like the OSHA Case Earlier This Term, Shows The Court is Not Really “Textualists” and Applies Statutory Canons Reflecting Its Values

statutory interpretation, Supreme Court

Dissenting today in West Virginia v. EPA, Justice Kagan writes: “Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it.”

This term surely proves the point. The “normal” mode of textual analysis we see from Justices like Justice Gorsuch begin with the words of a statute, often read in the context of surrounding text, looking to dictionaries and other tools of ordinary meaning. And the approach avoids relying on legislative history as unreliable or even unconstitutional. The larger debate over textualism and the flaws in it are well covered in the late Judge Bob Katzmann’s excellent book, “Judging Statutes.”

But put aside that debate for today and take textualism on its own terms. In today’s EPA case, like the Supreme Court’s earlier ruling saying OSHA had no authority to require covid vaccines in larger workplaces, show that the conservative Justices are fair weathered textualists. In both cases, they don’t turn to dictionaries to figure out if the relevant agency has the authority from Congress to take on key issues in its area (EPA to deal with climate change threats from greenhouse gases and in OSHA the authority to regulate workplace safety).

Instead, the Justices pull a rabbit out of a hat and avoid the words of the statute almost in their entirety. How do to so? Textualists have adopted certain “canons” or rules of thumb to decide cases. Many of these canons are about how to read punctuation and grammar (like the last antecedent rule). But there are also “substantive canons” that put a thumb on the scale when it comes to interpreting cases. A rule for example that says to read criminal statutes leniently to favor criminal defendants is one example, because of constitutional protections for criminal defendants. Justice Scalia, who claimed to be an avid textualist, said that such canons cause whole a lot of trouble for an honest textualist. (I wrote a lot about this in a chapter in my book on Justice Scalia, The Justice of Contradictions.)

Today, as in the OSHA case, the Court pulls a rabbit out of a hat using what it now calls the “major questions doctrine.” It says that on big issues, the presumption is—even if Congress’s language is broad and wide as in these two cases—that Congress did NOT delegate the power to the agency to regulate a big issue. Congress has to be really clear and specific — again, even if as in the EPA and OSHA cases, there is a broad general grant of authority.

Why this substantive canon? It comes from the value judgments of the conservative Justices and from nowhere else. These justices are skeptical of broad administrative power, and of executive power generally. These justices know that in a closely divided Congress, its rulings like this will stymie legislative action on issues like climate change or preventing the spread of Covid. And they are fine with that.

You don’t pull a rabbit out of a hat as a judge unless it gets you somewhere. And this gets the justices to the ideological position they like. So much for honest textualism.

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Ballot access rules for disqualified presidential candidates

election law and constitutional law, statutory interpretation

Ned’s post on Section 3 of the Fourteenth Amendment walks through challenges pertaining to former president Donald Trump’s eligibility. It’s a sound legal analysis (although I’m sure there are disputes among some as to the facts, and there’s much uncertain about the politics), but I wanted to build on one point he raises: “That way, if Trump is judicially ruled ineligible—becoming constitutionally equivalent to Obama—his name can be kept off the ballots in 2024, and no voter will waste a vote by casting a ballot for a constitutionally ineligible candidate.”

The ballot access rules are a separate and major complication for presidential candidates. Consider the following hurdles.

Let’s start with the presidential primaries, formally the selection of delegates to the national nominating convention. The Democratic Party has rules requiring that candidacy including “requirements set forth by the United States Constitution.” (Rule 13.K.) The Republican Party does not (although no state may bar voting for someone who is constitutionally eligible).

For caucuses, the rules are largely left to state parties to determine candidate eligibility. For primaries, states often defer to party determinations or have no express rules as to candidate qualifications. So it’s entirely possible that an otherwise-ineligible candidate secure a majority of the delegates heading into a nominating convention.

On the other side of the nominating convention are ballot access rules for presidential candidates. Some states will exclude ineligible candidates. Others will not–for instance, I chronicle ballot access for ineligible candidates in recent history, like 27-year-old Peta Lindsay or Nicaraguan national Roger Calero, each of whom appeared on the ballot in some states in recent years. And some states only test presidential candidate eligibility for age, citizenship, and residency–nothing else. I took a look at some such challenges in the 2016 election.

Add to that the complexity of presidential electors (some of whom are statutorily required to vote for the candidate they were pledged to support or who received a plurality of the statewide popular vote, or else they vacate their office). And add to that the challenges of Congress’s power to refuse to count electoral votes, which Ned alludes to (and which no one is excited to re-engage in 2025).

All that is to say, the issues Ned identifies are important qualifiers for disqualifying a presidential candidate. But there 51 separate ballot access rules that need to be navigated to see how it would play out.

There are two important caveats. The first is that the GOP might truncate the process by cutting out a nominee from its primary process. That seems unlikely no matter the circumstances–as a matter of the complexity of how states run their primaries and as a matter of the party apparatus making changes to its internal governance ahead of 2024. The second is that Ned’s proposal certainly could expedite litigation. In the absence of a statute to enforce Section 3, I imagine some will litigate on a state-by-state basis, during the primaries and again during the general election, to exclude Trump from the ballot. A statute would certainly simplify resolution of the matter (and might alter how the party behaves–the same, for instance, as if Barack Obama attempted to seek a third term, to Ned’s analogous disqualification rule).

But litigation, it seems, is inevitable whatever happens, and it’s only a question of how messy it looks.

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“Electoral Votes Regularly Given”

electoral college, legislation and legislatures, statutory interpretation

I’ve posted a couple of brief items already, but I want to take a moment to join the other new contributors in thanking Rick for his kind invitation to join the Election Law Blog. This site has been an extremely valuable resource for me since I was a law student (!), and it’s a tremendous privilege to join so many thoughtful scholars in the field here.

I have a late-stage draft of an essay forthcoming in the Georgia Law Review entitled “Electoral Votes Regularly Given.” Here’s the abstract:

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not “regularly given.” That language comes from the Electoral Count Act of 1887. But the phrase “regularly given” is a term of art, best understood as “cast pursuant to law.” It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase “regularly given,” articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

I anticipate a great deal of academic and legislative interest in the Electoral Count Act ahead of the 2024 election, and I hope this essay offers a small but meaningful contribution toward those efforts.

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“Op-Ed: Why Judge Barrett’s legal philosophy is deeply antidemocratic”

statutory interpretation, Supreme Court

Victoria Nourse LAT oped hits the nail on the head about textualism:

Many think that the appointment of Judge Amy Coney Barrett to the Supreme Court will jeopardize the Affordable Care Act and abortion rights. But the reach of her antidemocratic judicial philosophy will go beyond those issues to put every federal law that conservatives oppose in danger.

Barrett, who has been on the federal bench for less than three years, is a conservative star because of her writings supporting the theory advocated by the late Justice Antonin Scalia known as “textualism.” This judicial philosophy is fundamentally at war with democracy. It would allow the court to rip apart laws that voters need and want.

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“State Courts, the Right to Vote, and the Democracy Canon”

statutory interpretation

Rebecca Guthrie has posted this student note for the Fordham Law Review. I’m obviously interested in this topic, and its new database of cases alone will make this article very useful—but I expect if offers far more. I can’t wait to dive in. Here is the abstract:

Entire elections can be determined by the way a state judge chooses to interpret an election statute. And yet, there has been little scholarly attention on how judges construe statutes regulating elections at the state level. This Note begins to redress that lack of attention by undertaking an in-depth analysis of one interpretive tool historically invoked by state courts. The “Democracy Canon” is a substantive canon urging courts to liberally construe election statutes in favor of voter enfranchisement. By conducting a review of both historical and modern references to the Democracy Canon by state courts, this Note argues that courts have become less willing to rely on the Democracy Canon in recent decades. At the same time, codification of the Democracy Canon, and perhaps other substantive canons, by state legislatures may alleviate most concerns of courts about using substantive canons and may be the solution to revitalize the Democracy Canon.

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Coming in Late Fall: Legislation, Statutory Interpretation, and Election Law: Examples and Explanations (2d Edition)

legislation and legislatures, pedagogy, statutory interpretation

I am pleased to announce that the fully revamped version of my Examples and Explanations book in Legislation, Statutory Interpretation, and Election Law will be available from Wolters Kluwer in the late fall. The first edition was from 2014, and so much has happened in both the field of Election Law and Legislation since then which is covered by the new edition.

The book is appropriate as a supplement or study aid (with mini-essay questions and answers) for courses in in Legislation, Leg/Reg, Statutory Interpretation, Election Law, Voting Rights, and Campaign Finance. It is also intended as a treatise for practitioners in the field and a resource for lawyers, professors and judges, summing up my basic approach to these subjects that I have been studying for many years.

More information on the publication date when things get closer.

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“Textualism for Realists:” Michigan Law Review Issue Includes Review of My Justice Scalia Book by Ian Samuel

Scalia, statutory interpretation, Supreme Court

You can find the 23-page review of my book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, at this link. Although Samuel has much to disagree with, the former Scalia clerk says this: “Hasen’s book ought to be read by everyone with a strong opinion about Justice Scalia, in either direction. Skeptics of Scalia, of course, will find much to nod at. But actually, my recommendation is especially true for the justice’s admirers—who will find much to disagree with in the book, but who nonetheless ought to read it to understand what is likely to be the party line of sophisticated Scalia skeptics in the years to come. And although neither virtue counts for much in the academic press, for what it is worth, the book is very readable and (a virtue Scalia himself would have appreciated) admirably free of filler—Hasen gets to the point.”

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Blackman: What happens if the Virginia Lieutenant Governor resigns?

statutory interpretation

The following is a guest post from Josh Blackman:

In Virginia, the Governor, Lieutenant Governor, and Attorney General are all being called upon to resign. If the Governor resigns, Article V, Section 16 of the Virginia Constitution provides a fairly clear order of succession: 

In the case of the removal of the Governor from office or in the case of his disqualification, death, or resignation, the Lieutenant Governor shall become Governor. If a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor or to serve as Acting Governor, the Attorney General, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If the Attorney General is ineligible to serve as Governor, the Speaker of the House of Delegates, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If a vacancy exists in the office of the Speaker of the House of Delegates or if the Speaker of the House of Delegates is ineligible to serve as Governor, the House of Delegates shall convene and fill the vacancy.

However, the Virginia Constitution does not explain what happens if the Lieutenant Governor resigns. The Virginia Attorney General recognized this gap in a 1982 opinion:

There is no provision in the Constitution of Virginia (1971) which expressly deals with filling a vacancy solely in the office of Lieutenant Governor. Article V, § 16 acknowledges the possibility of such a vacancy by providing that the Attorney General shall succeed to the office of Governor if a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor. Neither is there a statute which expressly deals with filling vacancies in the office of Lieutenant Governor.

What, then, happens if the Lieutenant Governor resigns? In the immediate aftermath of the vacancy, Section 24.2-212 would kick in. It provides:

“When a vacancy occurs in the office of Lieutenant Governor, the duties of that office shall be discharged by the President pro tempore of the Senate, but he shall not by reason thereof be deprived of his right to act and vote as a member of the Senate.”

However, the Attorney General concluded that the President pro tempore would only serve until the Governor made a unilateral appointment pursuant to Article V, Section 7. It provides:

“The Governor shall have power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.”

The Attorney General concluded that:

“neither the Constitution nor § 24.1-84 [currently codified at 24.2-212] provides a method for filling a vacancy in the office of Lieutenant Governor. Consequently, I conclude that the Governor is empowered to fill such a vacancy under Art. V, § 7 and § 2.1-18.”

In other words, the Governor has the unilateral power to appoint the Lieutenant Governor—that is his successor.  And that person would serve until the next election.

There is another reading. The Virginia appointments clause gives the Governor plenary appointment powers  “for which the Constitution and laws make no other provision.” Would Section 24.2-212 be such a law that “makes other provisions”? In other words, Section 24.2-212 would create a special carve-out to the Governor’s general unilateral power.

As a structural matter, this alternate reading makes sense. Consider the 25th Amendment as an analogy. It provides:  “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” After the resignation of Vice President Spiro Agnew, President Nixon was only able to select then-House Minority Leader Gerald Ford as his VP with the consent of Congress. It would have been untenable for Nixon to select a crony who would replace him following resignation. This situation somewhat resembles the crisis in Virginia, where the Governor is also under calls to resign.

If the Lieutenant Governor resigns, and the Governor makes an appointment, the President Pro Tempore would have standing to challenge his displacement from office.

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