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«Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment? ...»

-- [ Page 1 ] --

Are Statutes Constraining Gubernatorial

Power to Make Temporary Appointments to

the United States Senate Constitutional Under

the Seventeenth Amendment?

by VIKRAM DAVID AMAR"

After Republican Senator Craig Thomas died last June while

undergoing leukemia treatment, Wyoming's Democratic Governor

Dave Freudenthal filled the vacancy by appointing Republican State

Senator John Barrasso.1 Barrasso will serve in the U.S. Senate until

the beginning of 2009. A special election in November 2008 will decide who will finish Thomas's term through 2013.2 Analysts were not surprised that Senator Thomas's death generated no short-term effects on the partisan balance of the closely divided Senate. They noted that although Governor Freudenthal is a Democrat, Wyoming state law provided that when picking a temporary replacement to serve until the special election of 2008, the Governor was required to choose from among three candidates put up by the leadership of the State Republican Party-the party represented by the fallen incumbent.

This description of Wyoming law is accurate: Wyoming Elections Code section 22-18-111(a)(i) indeed directs that, in the event of a Senate vacancy among the Wyoming Senate contingent, the central party committee of the party represented by the prior incumbent is to submit three names of qualified persons to the Governor, who "shall" then choose one of the three to serve in the Senate until a popular election is held.3. Professor of Law, UC Davis School of Law; Visiting Professor of Law, UC Berkeley School of Law.

1. Michael Falcone, Wyoming: Senator Named to Fill Vacancy, N.Y. TIMES, June 23, 2007, at A9.

2. Id.

3. The text of the Wyoming statute provides:

[7271

HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

It is dubious, however, that Wyoming's law-and that of a few other states whose statutes resemble Wyoming S4 -is valid under the U.S.

Constitution. It is at least very questionable whether a legislature can force a governor to pick one of the three persons served up by state party leaders. It is similarly questionable whether a state can require a governor to fill a Senate vacancy with someone of the same party as the prior incumbent. (Arizona's statute purports to do this, and raises a substantial constitutional controversy that could have major implications should Republican Senator John McCain become President and be replaced by a Democratic governor.) This Article

pursues these and related questions.The Article proceeds as follows:

Part I provides detailed textual arguments against Wyoming's law and similar schemes. Part II analyzes the relevant (and somewhat sparse) United States Supreme Court authority bearing on these issues. Part III buttresses Part I's textual argument by drawing on the history and If a vacancy occurs in the office of United States senator or in any state office other than the office of justice of the supreme court and the office of district court judge, the governor shall immediately notify in writing the chairman of the state central committee of the political party which the last incumbent represented at the time of his election under W.S. 22-6-120(a)(vii), or at the time of his appointment if not elected to office. The chairman shall call a meeting of the state central committee to be held not later than fifteen (15) days after he receives notice of the vacancy. At the meeting the state central committee shall select and transmit to the governor the names of three (3) persons qualified to fill the vacancy. Within five (5) days after receiving these three (3) names, the governor shall fill the vacancy by temporary appointment of one (1) of the three (3) to hold the office. If the incumbent who has vacated office did not represent a political party at the time of his election, or at the time of his appointment if not elected to office, the governor shall notify in writing the chairman of all state central committees of parties registered with the secretary of state. The state central committees shall submit to the governor, within fifteen (15) days after notice of the vacancy, the name of one (1) person qualified to fill the vacancy.

The governor shall also cause to be published in a newspaper of general circulation in the state notice of the vacancy in office. Qualified persons who do not belong to a party may, within fifteen (15) days after publication of the vacancy in office, submit a petition signed by one hundred (100) registered voters, seeking consideration for appointment to the office. Within five (5) days after receiving the names of qualified persons, the governor shall fill the vacancy by temporary appointment to the office, from the names submitted or from those petitioning for appointment.

WYO. STAT. ANN. § 22-18-111(a)(1) (2007).

4. See HAW. REV. STAT. § 17-1 (2007) (providing scheme similar to Wyoming which allows the Governor to fill U.S. Senator vacancies with a temporary appointment from a list of three prospective appointees submitted by the same political party as the prior incumbent); UTAH CODE ANN. § 20A-1-502 (2007) (directing that the Governor "shall" appoint someone from "one of three persons nominated by the state central committee of the same political party as the prior officeholder."); see also ARIZ. REV. STAT. ANN. §16requiring the Governor to fill U.S. Senator vacancy with appointee from the same political party as the person vacating the office). For a discussion of whether a statute like Arizona's is unconstitutional, see infra Part IV.





Summer 2008] CONSTRAINING GUBERNATORIAL POWER?

structure of the Seventeenth Amendment. Of particular importance, Part III points out that only governors-not state legislatures and certainly not state political parties-are elected by the people of each state collectively in precisely the way U.S. Senators are. Part IV then explains why schemes like Arizona's should likely be treated similarly to Wyoming's. Part V concludes by reminding that the Senate itself has important, and perhaps ultimate, responsibility to interpret and preserve the meaning of the Constitution, including the provisions relating to Senate elections and vacancies.

I. Textual Arguments From the Seventeenth Amendment

A. Section 2 of the Seventeenth Amendment Textually Forbids State Legislatures From Unduly Constraining Governors' Exercise of Temporary Senate Appointment Powers The key provision to consider is Section 2 of the Seventeenth Amendment. The Seventeenth Amendment was an alteration of the Constitution, added in 1913, to guarantee direct popular election (as distinguished from state legislative selection) of U.S. Senators.

Section 2 says:

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.5 There is a very forceful textual argument that the Seventeenth Amendment prevents the Wyoming legislature from dictating the Governor's specific personnel choices in making a temporary Senate appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and does not authorize a state legislature to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive []to make [the] appointments.... "6 In other words, the Amendment, by its terms, creates potential appointment power only in governors; it does not authorize legislatures to participate in such appointment decisions, beyond

5. U.S. CONST. amend. XVII, § 2.

6. Id.

HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

simply determining whether governors should be allowed to make temporary appointments or not.

This textual argument that the legislature has no authority to limit the governor's substantive choices to specific persons or kinds of persons is reinforced by the last five words of Section 2 of the Seventeenth Amendment: "as the legislature may direct."7 This clause refers to, and confirms, the legislature's discretion as to the timing and procedures of any special popular election to be held to fill a vacancy. By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment-which strongly suggests that the legislature does not have broad prescriptive powers here. If the drafters and ratifiers of the Amendment had expected the state legislature to have a significant role in the governor's execution of his appointment power with respect to temporary Senate appointments, the Amendment could very easily have included some phrase like "as the legislature has directed" or "subject to the legislature's requirements" right after or before the clause referring to the governor's statutorily created power to make appointments.

Perhaps an analogy will reinforce this kind of "intratextual" argument.8 In Marbury v. Madison,9 Chief Justice Marshall confronted the question whether, given the language of Article III, Congress enjoys power to increase the original jurisdiction of the Supreme Court beyond the categories mentioned in the Constitution itself. As Akhil Amar has observed, "[1]eading scholars have not been kind to Marshall's exposition [in which Marshall concluded Congress lacked such power], calling it 'far from obvious,' 'clearly overstated,' and 'surely wrong."'' ° Akhil goes on to argue, though, that a more careful "intratextual comparison" of Article III than Marshall performed "would have enabled him to rebut his modern scholarly critics"" and confirm the

strength of his Article III reading:

7. Id.

8. See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (suggesting a holistic interpretive approach to the Constitution).

9. Marbury v. Madison, 5 U.S. 137, 146-49 (1803).

10. Amar, supra note 8, at 764.

11. Id.

CONSTRAINING GUBERNATORIAL POWER?

Summer 2008] The Appellate Jurisdiction Clause explicitly authorizes Congress to subtract from the Supreme Court's appellate docket; but the Original Jurisdiction Clause contains no comparable language authorizing Congress to add to the Court's original jurisdiction docket. Just as the Appellate Jurisdiction Clause confers jurisdiction "with such exceptions as Congress shall make," so the Original Jurisdiction Clause should have conferred jurisdiction "with such augmentations (and exceptions) as Congress shall make" had it been designed as a minimum (or a default rule) rather than a maximum. The fact that the Original Jurisdiction Clause does not contain augmentation wording symmetric to the exception wording of the Appellate Jurisdiction Clause elegantly buttresses Marshall's conclusion that Congress has no power to add to the Court's original docket. The point here is not a standard textual point about the Original Jurisdiction Clause, but a [Joseph] Story-like intratextual point that emphasizes the variation in language between this clause and the next one.

In his thought-provoking Response essay, Professor Levinson questions my use of intratextualism in the Seventeenth Amendment that the final clause [of by suggesting that "[o]ne might.. argue...

Section 2 of the Seventeenth Amendment]-'as the legislature may direct'-applies to the 'empowerment' clause as well as the 'special elections' one."' 3 Yet, as prominent legal commentator and treatise writer Jabez Sutherland explained, around the time versions of what would become the Seventeenth Amendment were drafted, the general rule of statutory interpretation during the nineteenth century was that "[r]elative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent. A proviso is construed to apply to the provision or clause immediately precedent."'" Under this rule of interpretation, commonly referred to as the "doctrine of the last antecedent,"15 the "as the legislature may direct" language of the Seventeenth Amendment is presumed to apply only to the "until the people fill the vacancies by election" provision directly preceding it. While this

–  –  –

presumption may be rebutted, Professor Levinson provides no reason, grammatical 6 or historical, to reject its straightforward and natural application here. Legal technicalities aside, Levinson's suggested reading is simply not persuasive as a matter of ordinary meaning and interpretive common sense.

A textual comparison with the Appointments and Recess Appointments Clauses of Article II might also be useful in interpreting Section 2 of the Seventeenth Amendment. The Appointments and Recess Appointments Clauses of Article II

provide, in relevant part:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. 7 No one would think that when the President is making a recess appointment, or when a "Court of Law" is empowered by Congress to make an appointment, that Congress may designate a short list of specific persons from whom the appointment must be made or otherwise constrain the particular personnel choices of the appointing officer. This is in large part because the "Advice and Consent" language (or something like it) that appears earlier is conspicuously 16 Professor Levinson is keenly aware of this interpretive presumption. Elsewhere, he has observed that "[e]vidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedent by a comma." Jordan Steiker, Sanford Levinson and Jack Balkin, Taking Text and Structure Really Seriously: ConstitutionalInterpretation and the Crisis of PresidentialEligibility, 74 TEX. L. REV. 237, 245 n.46 (1995). In the present case, as Professor Levinson seems almost to concede, seeLevinson, supra note 13, at 721, rules of grammar and punctuation support my reading.

17. U.S. CONST. art. II, § 2, cl. 2-3.

CONSTRAINING GUBERNATORIAL POWER?

Summer 2008] lacking with respect to recess appointments and Court of Law appointments.1 B. Section 2 of the Seventeenth Amendment is Unlike Other Constitutional References to State "Legislatures" in That Section 2 Textually Contrasts the Legislature with the Executive, Marking Out the Roles of Each Body Do the terms "legislature" and "executive authority" in the Might the Seventeenth Amendment have to be read so strictly?

Seventeenth Amendment simply delegate to "states" more generally the power to make temporary Senate appointments until a special Does the federal Constitution really contain a election is held?

textual preference for one elected state institution over another?

After all, there are other instances in which the federal Constitution refers to state "legislatures" that courts have not read to exclude participation of other branches of state government.' 9 Shouldn't these allocations of intra-state power be left simply to state separation of powers principles?

It is true that there are other places in the Constitution that make mention of "legislatures" of the states (e.g., Article I, Sections 3 and 4; Article II, Section 2; Article IV, Sections 3 and 4; and Article V). 1 And, as discussed more fully below, the Supreme Court has read some, though not all, of these references to "legislatures" to permit



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