A major issue in the Moore v. Harper case and about the independent state legislature theory (ISLT) more generally is whether the term “legislature” must mean the same thing in all the constitutional provisions that use it. In addressing that issue, I want to begin at a different place: it is undisputed that the word “Congress” has different meanings under different constitutional provisions.
The Constitution assigns different role and types of functions to Congress. Congress’ main role is to legislate; the scope of the power to do so is set out in Art. I. But Congress sometimes act as the proposer of constitutional amendments. Congress is giving that role in Art. V, which also specifies that these proposals only become effective if they have been approved by ¾ of the state legislature or state conventions convened for that purpose.
In its role as proposer of constitutional amendments, Congress does not have to present its proposed amendments to the President. The President does not have been given the opportunity to veto or sign the proposed amendment. Early Supreme Court precedent recognized that Congress does not have to present proposed amendments for the President’s approval or veto. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 381 n.* (1798) (statement at oral argument of Chase, J.). Indeed, Congress has not presented numerous proposed constitutional amendments for presidential approval or veto, including the Bill of Rights.
But the fact that Congress acts “independently” of the President in the context of proposing
constitutional amendments does not mean, of course, that it is “independent” in the context of
lawmaking. When Congress acts in its legislative role, it must, of course, present such legislation to the President for veto or approval. INS v. Chadha, 462 U.S. 919 (1983). Thus, although we do not think about this very much, it’s clearly settled that the term “Congress” means different things under different constitutional provisions. Put another way, the Constitution assigns Congress different functions; in performing some of those functions, such as proposing constitutional amendments, Congress is “independent” in ways it is not when it engages in ordinary legislating.
Similarly, the Constitution assigns state “legislatures” different functions under different provisions. And just as with Congress, in some of those functions, state legislatures might indeed be “independent” in ways they are not under other provisions. Thus, in the original Constitution, before the 17th Amendment, state legislatures were assigned the role of electors – they chose the state’s Senators. If a state constitution before the Seventeenth Amendment had purported to permit direct popular election of Senators, I think a majority of the Court would likely conclude that such a state constitutional provision was unconstitutional – and that conclusion might well be right. Indeed, in upholding the constitutionality of a voter-initiated state constitutional amendment that created an independent redistricting commission for drawing U.S. House districts, Justice Ginsberg’s opinion for the Court in the Arizona State Legislature v. Arizona Independent Redistricting Commission case, 576 U.S. 787 (2015) (AIRC) recognized that state legislatures might have had unique independence, prior to the Seventeenth Amendment, in their distinct role as electors.
But just as with Congress, the fact that state legislatures might be “independent” when performing certain functions, such as electing Senators, does not mean that they are independent when engaged in the legislative role the Constitution’s Elections Clause assigns them for national elections. This is a critical point in seeking to uphold the role of state constitutions to constrain state legislative regulation of national elections. Chief Justice Roberts, in his dissent in the AIRC case, implicitly took the position that the word “legislature” must mean the same thing under all 17 provisions of the Constitution that use that term. If that premise is accepted, advocates resisting the ISLT in Moore would then be put into the position of having to argue that state constitutions could have created popular election of Senators, even before the 17th Amendment – a losing position, in my view.
The most effective way of persuading that “legislature” does mean different things under different provisions is by highlighting the accepted legal fact that “Congress” means different things when the Constitution assigns Congress different roles – and that we can recognize Congress has more “independence” in certain of these roles than when it is legislating.