Category Archives: legislation and legislatures

What Replaces Chevron Deference in Administrative Law Statutory Interpretation Cases? Greater Judicial Power

legislation and legislatures, Supreme Court

Here, from the end of the Chief Justice’s opinion in Loper-Bright, is a brief paragraph on what replaces Chevron deference to administrative agency interpretation of ambiguous statutes:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

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“America needs a bigger House”

legislation and legislatures

In the Detroit News, I have this op-ed with Michigan state representative Andrew Fink. It begins:

Michigan’s population grew by 2% in the last decade and now has more than 10 million inhabitants. But those Census figures couldn’t stop the state from losing a seat in the House of Representatives, dropping to 13 members.

When states grow in population, they shouldn’t lose influence in Washington. It’s time to expand Congress to represent the interests of a growing national population by amending the Constitution.

Representative Fink has introduced a joint resolution in the Michigan legislature to ratify the last pending amendment of James Madison, which would guarantee a representative in the House for every 50,000 people. (Fink is the first representative to introduce such legislation in any state in recent memory, but perhaps a reader with a longer memory can think of another instance!) That would expand the size of the House from 435 to around 7000. And it can be done without any congressional action.

I’m sure some readers would strongly oppose such a measure or think of it as absurd. We defend reasons to think why much more robust legislative oversight and a House much more closely connected to the people would be a good thing. (Professor Danielle Allen has been among those writing more recently on the topic and in defense of it, such as in this Washington Post piece.)

Congress approved the amendment in 1789, and 11 states ratified it. It would take 27 more for it to become an amendment to the Constitution. But if even one state ratified, we think it might spur serious reflection in Congress about what the appropriate size of the House ought to be–perhaps less than 7000, but something that would spur Congress to react.

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“Investors, worried they can’t beat lawmakers in stock market, copy them instead”

conflict of interest laws, legislation and legislatures

WaPo:

Members of Congress hear a lot of secrets: classified briefings, confidential previews of pending legislation and the private opinions of constituents, regulators, corporate executives and world leaders.

Watchdog groups have long believed that somelawmakers use that information to make money in the stock market. Now a loose alliance of traders, analysts and advocates is trying to let Americans mimic the trades elected officials make, offering tongue-in-cheek financial products — including one named for former House speaker Nancy Pelosi (D-Calif.) and another that refers to Sen. Ted Cruz (R-Tex.) — that track purchases and sales after lawmakers disclose them.

Collectively, these investment vehicles haveattracted hundreds of millions of dollars.At times, congressional investigatorshave used them to keep tabs on suspicious trading activity, according to people familiar with these investigations who spoke on the condition of anonymity because they are not authorized to speak to the media.

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“Henry Cuellar Indicted Over Bribery Scheme”

bribery, chicanery, legislation and legislatures

Missed this story (and the Illinois one Derek flags) while traveling:

Representative Henry Cuellar, a Texas Democrat in a crucial swing district, and his wife were charged with participating in a yearslong $600,000 bribery scheme involving Azerbaijan and a Mexican bank, according to a federal indictment unsealed in Houston on Friday.

The accusations against Mr. Cuellar, 68, and his wife Imelda, 67, center on allegations of bribery and money laundering in connection with their efforts on behalf of an oil and gas company owned by Azerbaijan’s leaders as well as an unnamed bank based in Mexico City, according to the 54-page complaint.

Mr. Cuellar, a Laredo native first elected in 2004, is also accused of acting as an agent of a foreign entity while a U.S. government official — by delivering a speech favoring Azerbaijan in Congress and inserting provisions into aid bills to benefit those who were paying bribes to his family.

I wonder how a Speech or Debate Clause defense might figure into claims based on delivering a speech in Congress.

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Federal Court Rejects on Standing Grounds Michigan Legislators Suit Against Voting Initiatives Premised on Embrace of Rejected ISLT Theory

legislation and legislatures

You can read the decision at this link.

Here was my initial coverage:

Michigan GOP Lawmakers Appear to Rely on Rejected Version of Independent State Legislature Theory to Attack Recent Voting Laws Passed by Initiative

RICK HASEN

I haven’t seen the complaint, from from the description of the facts and lawsuit here, this lawsuit should not have much chance of success.

If anyone has the complaint, pass it along and I will post here and provide additional analysis.

UPDATE: Here is is the complaint, via Democracy Docket. More to come.

SECOND UPDATE: This complaint is quite unimpressive, not even mentioning controlling contrary authority (the Arizona Independent Redistricting Commission Supreme Court case), or the recent and inconsistent Moore v. Harper case.

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“In Electoral Disputes, State Justices Are Less Reliable GOP Allies than the U.S. Supreme Court—That’s the ‘Problem’ the Independent State Legislature Claim Hopes to Solve”

legislation and legislatures, political polarization, Supreme Court

Rebecca L. Brown, Lee Epstein, and Michael J. Nelson have this new article in the Annals of the American Academy of Political and Social Science. Here is the abstract:

Scholars have identified serious drawbacks to the independent state legislature (ISL) claim, which precludes state-court review of election laws, thus preventing state guarantees like “free and fair elections” from being enforced. Considering its flaws, we ask why ISL would be pursued so fervently and why the Supreme Court, in Moore v. Harper, adopted a version of it. Examining data that compare election-law outcomes in federal and state supreme courts, we found that state supreme court justices, even if Republican, are not reliable supporters of the GOP electoral agenda. The Roberts court, by contrast, has voted in the GOP-supported direction in most election-law cases it has decided. This, we argue, is why ISL is promoted so vigorously: it takes electoral disputes—such as who can vote, what the rules for counting are, and such—out of the hands of state courts and places them squarely into the hands of the Supreme Court, a reliable partisan ally.

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“The ‘Bounds’ of Moore: Pluralism and State Judicial Review”

legislation and legislatures, Supreme Court

Leah Litman and Kate Shaw have written this essay for the Yale Law Journal Forum. Here is the abstract:

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates a kind of federal-court review of state officers’ interpretation of state election laws that is not rooted in history or tradition, given the pluralist interpretive traditions that existed in the states both before and after the drafting and ratification of the original Constitution. It is also fatally inconsistent with basic principles of both federalism and democracy.

Can’t wait to read this!

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“Trump ballot ruling raises new questions even as it answers others”

legislation and legislatures, Supreme Court

Patrick Marley for WaPo:

The Supreme Court quickly and unanimously resolved a case this week that had divided legal scholars for months, clearing a path for Donald Trump to remain on the ballot for president nationwide. But in doing so, the justices unleashed new questions that could confront Congress and the courts after the November election.

The decision reversed a finding by Colorado’s top court that votes for Trump should not be counted in that state because he had engaged in insurrection and, as a result, was barred by the Constitution from holding office. Monday’s decision — issued a day before Colorado and 14 other states held their Super Tuesday primary elections — found that states cannot prevent candidates for federal office from running based on claims that they are insurrectionists.

All nine justices agreed on that point. A majority went further and said when it comes to federal offices, only Congress has the authority to enforce Section 3 of the 14th Amendment, the part of the Constitution that bars insurrectionists from office. The court’s liberals, along with conservative Justice Amy Coney Barrett, said the majority should not have tackled an issue it didn’t need to address.

The three justices nominated by Democratic presidents excoriated the conservative majority and accused it of trying to protect the court and Trump from “future controversy.” The majority’s reading of Section 3 effectively shut the door to using the provision to prevent future insurrectionists from holding federal office, the liberals argued.

But some legal scholars offered an additional critique, saying the court settled far less than it should have. By trying to address some questions, the majority created new ones, raising the possibility of a confusing and acrimonious post-election season, they said.

“They’ve introduced new uncertainty,” said Richard Hasen, a UCLA law professor and director of the university’s Safeguarding Democracy Project.

For instance, the decision leaves open the question of whether Congress could refuse to count electoral votes for Trump if it determines he committed insurrection during the Jan. 6, 2021, attack on the U.S. Capitol, Hasen said. It’s also unclear whether the Supreme Court can intervene in the unlikely event that that happens.

University of Notre Dame law professor Derek Muller agreed the majority opinion left the question muddled. Congress is slated to count electoral votes on Jan. 6, 2025, four years to the day after the assault on the Capitol by Trump supporters.

“This is an area of high uncertainty for me,” he said. “I think there’s no question the mood from the court is to discourage Congress from refusing to count electoral votes on January 6th. But it’s far from clear to me that that is foreclosed from Congress’s power.”…

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“Pa. lawmakers file lawsuit against Shapiro, Biden over election-related orders”

legislation and legislatures

Penn Live:

A group of conservative Pennsylvania lawmakers have filed suit against President Joe Biden and Gov. Josh Shapiro over their use of executive authority in election matters.

In the 33-page complaint filed on Thursday in U.S. Middle District Court, the Pennsylvania Freedom Caucus asks the court to halt activities authorized through executive orders that expand voter registration and outreach.

They claim the orders are unconstitutional in that they removed guardrails legislators put in place to ensure fair elections and deprive legislators of their civil rights..

In the lawsuit, lawmakers maintain the U.S. Constitution assigns state legislators the right to determine the manner of elections.

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Clopton and Shaw on litigation and electoral time

court decisions, legislation and legislatures, Supreme Court

New draft from Zachary Clopton (Northwestern) and Kate Shaw (Cardozo en route to Penn), forthcoming in the Wisconsin Law Review, is here, entitled Public Law Litigation and Electoral Time. Here’s the abstract:

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics — electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants — measured by the fixed terms of state and federal executive officials — may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts — measured by the fixed terms of state judges — creates openings for strategic behavior among litigants (both public and private), such as when they engage in temporal forum shopping between the court before and after judicial elections. Third, state judges may pursue their preferences in light of their own electoral time, such as when they choose to pursue midnight adjudication. This Essay suggests reasons to be concerned with these time-motivated behaviors, especially when they seek to entrench policies and to counteract the results of democratic elections. How courts, policymakers, and the public will respond to these concerns, only time will tell.

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“‘Thank God they walked out’: Oregon’s partisan divide highlights heightened animosity in statehouses”

legislation and legislatures

Politico:

Ten Oregon Republican senators may face the end of their legislative careers for a six-week legislative walkout aimed at thwarting what they see as a radical Democratic agenda on guns, abortion and transgender health care.

The lawmakers are banned from running for reelection for accumulating at least 10 unexcused absences during this year’s legislative session.

Their imminent banishment — pending the outcome of a pair of legal battles, with key court hearings this week — is due to a 2022 constitutional referendum overwhelmingly backed by voters.

I covered the dispute in Oregon earlier this year here.

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State power and the Term Limits v. Thornton problem in Anderson v. Griswold

legislation and legislatures, political parties

The bulk of the analysis in Anderson v. Griswold, which held that Donald Trump can appear on the primary ballot in Colorado, has been a matter I’ve been puzzling this weekend. Most of the opinion is not essential to the holding–that is, most of the legal analysis in the opinion concludes that Trump engaged in insurrection (but nevertheless may appear on the ballot). (Rick H. rightly notes earlier that it’s a reason it has “political implications” as the legal implications remain to be seen.)

There are ordinary reasons (e.g., trial courts include alternative or “non-essential” holdings in judicial cases to allow for a better appellate review that might avoid further litigation in the event of a reversal) and cynical reasons (e.g., trial courts want to reach a particular factual conclusion but not issue a particular remedy in a case and choose to discuss both) for such dicta. I don’t want to psychoanalyze in this post.

Instead, I think a reason I’ve been puzzled, on reflection, is because the court made a mistake in how it approached the jurisdictional component: does state law even authorize this kind of judicial review? Viewed through a lens of cases like U.S. Term Limits, Inc. v. Thornton, I think the error in the court’s framing becomes evident.

Continue reading State power and the Term Limits v. Thornton problem in Anderson v. Griswold →
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“The hidden biases at play in the U.S. Senate; People of color get significantly less representation than White voters. And that’s not the only way the Senate is skewed.”

legislation and legislatures

Deep dive at WaPo:

The result of the country’s evolution has been a Senate that suffers from three fundamental imbalances, according to a Washington Post data analysis of population growth, demographic changes and shifts in voting patterns.

First, the disparities in power among voters in different states have widened as states have grown unevenly. Second, because of demographic distribution, White voters now have substantially greater influence than voters of color. And finally, in recent decades, Republican senators have maintained majority control even when they represent a minority of Americans. That’s because more Republicans than Democrats are elected in the least populous states.

Though not the sole reason, these imbalances have contributed to the Senate’s inability to enact legislation that enjoys popular support, from voting rights to gun safety laws. Proposals with widespread support among voters of color have been particularly stymied. The Senate’s distortions are also a factor in perceptions, especially among people on the political left, that the Republican Party and its constituencies enjoy outsize power over essential democratic processes, including the confirmation of Supreme Court justices.

As the country continues to gain population and become more diverse, none of these phenomena appear to be going away.

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“Democrats Plan to Spend Millions to Weaken Republican Supermajorities”

legislation and legislatures, redistricting

NYT:

Democrats are planning to spend millions of dollars next year on just a few state legislative elections in Kansas, North Carolina, Kentucky and Wisconsin — states where they have little to no chance of winning control of a chamber.

Yet what might appear to be an aimless move is decidedly strategic: Democrats are pushing to break up Republican supermajorities in states with Democratic governors, effectively battling to win back the veto pen district by district. Such supermajorities result when a single political party has enough votes in both chambers of a legislature to override a governor’s veto, often, though not always, by controlling two-thirds of the chamber.

The extraordinary political dissonance of having a governor of one party and a supermajority of an opposing party in the legislature is one of the starkest effects of gerrymandering, revealing how parties cling to evaporating power.

As gerrymanders built by both parties for decades have tipped the scales to favor the party of the map-drawers, legislative chambers have proved resistant to shifting political winds at the state level. At times, those gerrymanders have locked in minority rule in legislatures while statewide offices, like the governor’s, adhere to the desires of a simple majority of voters.

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