This essay was first published in the Epoch Times on March 28, 2022.
Some in the media and academia have been hyperventilating about a point of constitutional law they call the “independent legislature doctrine.” They worry that the doctrine could produce more Republicans in Congress.
The hysteria has been matched only by the detractors’ astonishing constitutional ignorance. Proof of this ignorance is how they describe the independent legislature doctrine: “extreme,” “fringe,” “radical,” “lawless,” and “threat to democracy.” In fact, it’s none of these things. In one form or another, the doctrine has been part of our political system since the Constitution was adopted. To the extent that the ignorance is not willful, I suspect it arises because this is another subject neglected in constitutional law courses.
In this essay I’ll try to lay out the facts about the independent legislature doctrine as objectively as I can. Before going further, though, let’s see how the doctrine works in practice, using two related illustrations.
Illustration no. 1: You live in a state with a Republican legislature and a Democratic governor. Your state constitution says the governor may sign or veto bills. May the legislature, acting without the governor’s approval, draw boundaries for the state’s congressional districts?
The answer to this question currently is “no.” The legislature is not “independent” because its rules for congressional elections must be signed by the governor. Moreover, the legislature may be overridden by citizen ballot measures, if the state constitution so provides.
Illustration no. 2: You live in the same state. May the legislature, acting without the governor’s approval, decide on a procedure for choosing presidential electors?
The answer to that question is “yes.” The legislature may act independently of the governor, and generally of the state constitution and laws, although it’s still subject to federal law.
Understanding the difference between the two kinds of cases requires interpreting the Constitution.
A Problem of Interpretation
The Constitution assigns many powers and tasks to the federal legislature (Congress) and to the state legislatures. The Constitution also assigns tasks to state governors, to courts, to the Electoral College, and to conventions. The courts refer to the exercise of these tasks as “federal functions” (pdf).
When the Constitution delegates a federal function to Congress, the word “Congress” can have either of two meanings: (1) the entire law-making apparatus, including passage by the Senate and House of Representatives and signature by the president, or (2) Congress acting independently, without the president.
Similarly, when the Constitution delegates a federal function to a state “Legislature,” that word can have either of two meanings: (1) the entire state law-making apparatus, including the legislative assembly, the governor, and any state procedure for citizen ballot issues, or (2) the legislative assembly acting independently.
Often the Constitution specifies that a function must be carried out “by Law.” This tells us that the legislature doesn’t act independently, but only as part of the larger law-making apparatus. However, the Constitution isn’t always so clear. To get the meaning, you have to study the text and the surrounding history.
The Constitution’s amendment procedure delegates federal functions to Congress and state legislatures. A 1798 Supreme Court case addressed this question: When Congress proposes a constitutional amendment, may it act independently or must the president sign the proposal?
The court decided that in the amendment process, Congress acts independently. The justices ruled that proposing an amendment was not an act of ordinary legislation. In other words, proposing an amendment was more like an ad hoc resolution.
Later cases have clarified that the same principle prevails throughout the entire amendment process: State legislatures acting in that process do so as assemblies independent of the governor and independent of state constitutional rules. They are governed only by federal constitutional law (pdf).
The Constitution assigns many other “federal functions” to state legislatures. Sometimes the function is assigned to the legislature acting independently and sometimes to the entire state legislative apparatus. Let’s consider two examples.
The first is Article I, Section 8, Clause 17. It gives power to Congress to create federal enclaves lying within state boundaries, but governed by federal law. To create an enclave, it must be “purchased by the Consent of the Legislature of the State in which the Same shall be ….”
Must the state “Consent” via the entire procedure for passing a law? Or is a simple legislative resolution sufficient?
The context suggests an answer: If a state is agreeing to give up jurisdiction over part of its territory, that’s a permanent legal change. Unlike the constitutional amendment process, dozens of other states don’t get the opportunity to review it. So the word “Legislature” probably refers to the state’s entire lawmaking apparatus. (This position also has some support in case law and the Founding-Era record (pdf).)
The second example comes from the Guarantee Clause, Article IV, Section 4:
The United States … shall protect each [state] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. (Italics added.)
Unlike a cession of territory, a request for help is a time-limited event. Also, notice how this clause distinguishes between “the Legislature” and the “Executive.” These two factors imply that a state legislature can call on the United States for assistance independently of the governor.
State Legislatures and Federal Elections
Now we come to the state legislatures’ powers over federal elections—the topic that has incited academics and the media. As originally written, the Constitution gave each state “Legislature” three powers over federal elections. They are:
- Electing the state’s U.S. senators (Article I, Section 3, Clause 1) (since superseded);
- fixing the “Manner” of choosing the state’s presidential electors (Article II, Section 1, Clause 2); and
- fixing the “Times, Places and Manner of holding Elections for Senators and Representatives,” except that “the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators” (Article I, Section 4, Clause 1).
As to each of these three, does the word “Legislature” mean an independent assembly? Or does it mean the entire lawmaking process, including the governor’s signature and state rules on ballot issues?
The first topic, senatorial elections, is easy. Before the 17th Amendment transferred election of senators to the people, it was understood universally that the legislature chose senators on its own. There was no role for the governor or anyone else. The legislature was “independent.”
The second topic is choice of presidential electors. Originally, most state legislatures elected their states’ presidential electors. They did so independently. Later, state lawmakers started writing rules for popular choice of electors. In 1892, the Supreme Court said the same principle applied to those rules: state legislatures act independently (pdf). True, the state legislature might choose to adopt election rules by passing a law signed by the governor. But the legislature always can take back the power without going through the same formalities.
That leaves congressional elections: May state legislatures draw congressional districts and otherwise regulate congressional elections independently? Or are other elements also involved, such as the governor, reapportionment commissions, and ballot measures?
Regulating Congressional Elections
The Supreme Court considered this issue in 2015. It ruled that the power to regulate congressional elections belonged to the state’s legislative apparatus as a whole—not just to the legislature (pdf). However, the vote was only 5–4, with Chief Justice Roberts writing a strong dissent. Two of the five-member majority are no longer on the court, and a third, Justice Stephen Breyer, is about to leave.
North Carolina has a Democratic governor and a Republican legislature. The legislature has announced that it will sue to revisit the 2015 decision. If the North Carolina legislature is successful, state legislatures everywhere would be more free to draw congressional districts. The GOP has de facto legislative control in 31 states, and that number is likely to climb after this year’s elections. Thus, the change could result in more pro-Republican voting rules and more Republicans in Congress. That is what has the liberal media and academics so upset.
What Are the Merits?
Was the Supreme Court correct in 2015? Or is the North Carolina legislature correct now? Frankly, I’m not sure.
Detailed, objective scholarship on this precise subject has never been performed. The understanding of the Constitution’s ratifiers likely rests in the election practices of the time. Complicating the search for an answer is that state constitutions were different then: Most did not allow governors to veto bills and there was no statewide lawmaking through ballot measures.
My impression is that during the years before the Constitution was written, the British Parliament, the American colonies, and the American states regulated popular legislative elections through standing election laws rather than through ad hoc resolutions. For example, when the South Carolina legislature established rules for the first congressional elections in 1788, it did so by an ordinary law. This suggests the Supreme Court was correct to say that legislatures must regulate congressional elections by law, not by independent resolutions.
On the other hand, the Massachusetts legislature laid down the rules for early federal elections one election at a time—that is, by resolutions. Notably, also, the Constitution requires Congress to regulate congressional elections “by Law,” but it doesn’t impose a similar mandate on state legislatures.
We need more high-quality research on the question. It should come from qualified scholars without political axes to grind.