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

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18. Cf. Edmond v. United States, 520 U.S. 651, 659-60 (1997) (confirming that the Appointments Clause prevents congressional encroachment upon the executive and judicial branches).

19. See infra notes 40-41, and accompanying text. See also Vikram David Amar, The People Made Me Do It: Can the People of the States Instruct and Coerce Their State Legislatures in the Article V ConstitutionalAmendment Process?, 41 WM. & MARY L.

REV. 1037 (2000); Richard L. Hasen, When "Legislature" May Mean More than "Legislature": Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 HASTINGS CONST. L.Q., 599.

20. U.S. CONST. art. I, § 3, cl. 1 ("The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.... ) (altered by the Seventeenth Amendment); U.S. CONST. art. I, § 4, cl. 1 ("The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof."); U.S. CONST. art. II, § 1, cl. 2 ("Each state shall appoint, in such manner as the Legislature thereof may direct...."); U.S. CONST. art. IV, § 3, cl. 1 ("[N]o new states shall be formed or erected within the jurisdiction of any state... without the consent of the legislatures of the states concerned."); U.S. CONST. art. IV, § 4 (providing that the federal government shall protect each state against domestic violence "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened"); U.S. CONST. art. V (requiring ratification of amendments "by the legislatures of three fourths of the several states.").

21. See supraPart II.

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involvement by other branches of state government, or by the people themselves. To the extent that other uses of the constitutional term "legislature of the states" can, as a textual matter, sometimes be read generously to confer broad powers on states to structure their own internal divisions of power as they see fit, such generosity seems textually foreclosed in Section 2 of the Seventeenth Amendment.

The crucial point here is that Section 2 does not simply mention state "legislatures" in a way that might be interpreted as casual; its terms on their face textually differentiate within a single sentence between "legislature" and "executive," granting the former the explicit power to empower and the latter the explicit power to appoint.

Indeed, if we were to line up all of the Constitution's references to state "legislatures" along a spectrum of state institutional specificity, Section 2 of the Seventeenth Amendment's use of the terms "legislature" and "executive" presents perhaps the clearest textual demarcation of particular federal powers conferred on specific state institutions,22 whereas Article II-at issue in Bush v. Gore, 3 and discussed in Professor Hasen's symposium contribution and my commentary subject of Article II's key sentence is the "state" itself.the grammatical on it4-presents the murkiest allocation, because 2 5 C. The Power of State Legislatures to Decline to Authorize Temporary Senate Appointments Altogether Does Not Subsume the Power to Limit the Exercise of Appointment Authority Of course, the Seventeenth Amendment's text does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether: the term "may" rather than "shall" is used to describe the legislative authority to create appointment power. 6

22. Another candidate might be Article IV's so-called "Guarantee Clause," which provides in relevant part that the federal government shall protect each state against domestic violence "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened)." U.S. CONST. art. IV, § 4. It would be hard to argue, given this text, that a state governor enjoys the unilateral power to apply for federal help when the state legislature is in, or could be in, session.

23. Bush v. Gore, 531 U.S. 98 (2000).

24. See Hasen, supra note 19; Vikram David Amar, Direct Democracy and Article II:

Additional Thoughts on Initiatives and PresidentialElections, 35 HASTINGS CONST. L.Q.

631.

25. U.S. CONST. art. II ("each State shall appoint electors in a manner specified by the legislature thereof.")(emphasis added).

26. "May" is distinguished from "shall." Cf. U.S. CONST. art. III, § 2 ("[T]he trial shall be at such place or places as the Congress may by law have directed.) (emphasis Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 735 Presumably, legislatures were given this authority in the event that the legislatively provided-for special popular election was scheduled early enough that a temporary gubernatorial appointment would not be worth the effort and might even create more harm than good. But the power to decide whether it makes practical sense for the governor to be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look again at the Appointments Clause of the federal Constitution, in Article II. As noted above,27 that clause gives Congress the power to "vest" appointment of inferior federal officers in the President alone, or in Cabinet members or Courts of Law. But Congress's power to vest appointment authority in the President does not give Congress the power to generate a list of three names from which the President can be forced to choose. As the Court has noted, "[b]y vesting the President with the exclusive power to select the... officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial Branches." 2 8 And it should be noted that Congress enjoys more power in this regard than state legislatures under the Seventeenth Amendment;





Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.' Congress's substantive power to create offices, which is distinct from its power to authorize the President or others to appoint persons to the offices, gives Congress at least some leeway to prescribe qualifications for those who shall hold the offices.

D. Just as "May" Does Not Mean "Shall," "Empower" Does Not Mean "Require" There is yet another way in which the Wyoming statute likely impermissibly constrains the Governor. Not only does the statute purport to limit the Governor to a party-generated short list, it also added). See Martin v. Hunter's' Lessee, 14 U.S. 304, 330 (1816) (providing that Constitution's use of the term "shall" must be interpreted as imperative).

27. See supranote 17 and accompanying text.

28. Edmond v. United States, 520 U.S. 651, 659 (1997). See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Buckley v. Valeo, 424 U.S. 1, 133 (1976).

29. See Thornton, 514 U.S. at 837-38 (providing that members of congress, while elected by separate constituencies, hold "offices that are integral and essential components of a single National Government."); see also infra notes 94, 100-09 and accompanying text.

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purports to require him to make an appointment within days of receiving the three names."

This, too, seems problematic, under a careful reading of the text of Section 2. That provision says state legislatures may "empower" governors to make temporary appointments, until the people fill the vacancies by election.31 "Empower" does not mean "require;" rather, it means to create the power to do or not do something. The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment's words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.32 Professor Levinson, in his Response essay,33 does not explicitly discuss the meaning of "empower" in this context, but suggested in his oral remarks at the symposium that Section 2 perhaps ought to be read to require governors to make appointments. He reasoned that this result makes sense in light of the modern need to fill Senate vacancies quickly, especially, say, in the event of mass openings due to terrorism. In explaining his interpretive methodology here,

Professor Levinson writes in his Response essay:

I strongly believe that the very first question should be the following: How would we design the Constitution in 2008 with regard to filling senatorial vacancies? Only after resolving that question should we move on to inquiries into text, structure and history. And, with regard to those interrogations, we should ask whether the text, structure and history so definitively point in a direction different from our own answer to the first question that we must reluctantly conclude that we must acquiesce.... 34

30. Wyoming is not the only state whose statute by its text attempts to require a governor to make temporary appointments. See, e.g., ARIz. REV. STAT. ANN. § 16-222 (2007) ("For a vacancy in the office of United States senator, the governor shall appoint a person to fill the vacancy."); UTAH CODE ANN. § 20A-1-502 (2007) (directing that Governor "shall" appoint someone from one of three persons nominated by the state central committee of the same political party as the prior officeholder.).

31. U.S. CONST. amend. XVII (emphasis added).

32. For example, the Recess Appointments Clause does not require Presidents to make recess appointments by giving him the "power" to do so. U.S. CONST. art. II, § 2.

The same can be said for the President's "power" to make treaties and nominate officers for Senate confirmation. Id. Nor does a President have to exercise the "power" he is given to grant reprieves and pardons. Id.

33. See Levinson, supra note 13.

34. Levinson, supranote 13 at 716.

Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 737 If this "modern policy first" reasoning were sound, then perhaps we should also read Section 2 as requiring state legislatures to create gubernatorial appointment power to fill such vacancies promptly.

Yet, as noted below, 3 there are at least four or five states that currently do not authorize their governors to make temporary Senate appointments, and under Professor Levinson's approach, their schemes would seem to be problematic.

In any event, I tend to disagree with Professor Levinson about the order in which we should consider text, history, structure and modern drafting preferences; I think starting with modern desires is very unlikely to generate much interpretive consensus. I also likely disagree with him on the question of how ambiguous the text, history and structure needs to be before we read the document's words, as he would, to mean that which we would write them to say were we drafting them today in light of our sense of current political and practical realities.36 Terms like "empower" and "may" seem relatively clear in this context, and I feel they confine us more than Professor Levinson suggests.37 II. Arguments from Supreme Court Authority As Professor Hasen's symposium article 8 (and my essay responsive to it)39 points out, the Supreme Court has, in some early Twentieth Century cases, interpreted other provisions in the federal

35. See note 89 infra and accompanying text.

36. To support his methodology, Professor Levinson invokes, of all people, Justice Antonin Scalia for the proposition that "context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give the words and phrases an expansive rather than narrow interpretation-though not an interpretation that the language will not bear." Levinson, supra note 13, at 716. But shortly after observing that "context is everything," Justice Scalia makes clear that by "context" he is talking about the context in which the words were originally used, and not the current circumstances in which they might be applied. See ANTONIN SCALIA, A MATrER OF INTERPRETATION 38 (1998) ("But the Great Divide with regard to constitutional interpretation is not between Framers' intent and objective meaning, but rather between original meaning (whether derived from Framers' intent or not) and current meaning."). Justice Scalia is very critical of interpretive methods that place great reliance on whether a particular reading of a provision achieves a "desirable result for the case at hand." Id. at 39. Although Justice Scalia may be more of a consequentialist than he admits, his stated views on interpretive methodology provide no real support for Professor Levinson in this area.

37. And importantly, as explained more below, see infra notes 63-64 and accompanying text, I probably have a different sense than Professor Levinson about how we would write the Seventeenth Amendment even if we were drafting it anew today.

38. Hasen, supra note 19.

39. Amar, supra note 24.

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Constitution that use the phrase "legislature" of the state as not preventing states from structuring their own internal processes as they see fit, even when states were invoking those processes to discharge powers or obligations created by the federal Constitution.

Perhaps most importantly, in Smiley v. Holm,4° the Supreme Court in 1932 said that the fact that Article I of the Constitution directs state "legislatures" to draw congressional district lines, subject to Congressional override, does not prevent a state from involving the state governor-through his veto power-in the state lawmaking process used to draw federal district boundaries. If Article I's reference to "legislatures" did not foreclose gubernatorial involvement in Smiley, then arguably the Seventeenth Amendment's reference to state "executive" ought not to foreclose state legislative involvement in temporary Senate appointments.4' On the other hand, there are cases like Hawke v. Smith,42 Bush v.

Gore, 3 and most recently Colorado v. Salazar,4 in which particular Justices (and sometimes the Court) have read references to state institutions more literally. In Bush v. Gore, a majority of Justices seemed to embrace precisely the kind of tight reading of 45 wordthe "legislature" that would render Wyoming's law problematic.

In particular, the Bush v. Gore concurring opinion by Chief Justice Rehnquist and Justices Scalia and Thomas (an opinion that likely had the tacit support of Justices O'Connor and Kennedy, as well) 4 concluded that when the federal Constitution, in Article II, enlists state "legislatures" to determine the method of selecting members of the so-called presidential electoral college, the Constitution necessarily forbids states from involving state courts in a

40. Smiley v. Holm, 285 U.S. 355 (1932).

41. See also Vikram David Amar, Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment, 49 VAND. L. REv. 1347, 1354-55 (1996) (explaining the pre-Seventeenth Amendment Oregon Plan and other (seemingly permitted) examples of states not hewing to narrow definitions of "legislature" in deciding how states should discharge federal electoral processes). For a more general discussion of the variation in Supreme Court and historical attitude, see Amar, supranote 24.

42. Hawke v. Smith, 253 U.S. 221 (1920).

43. Bush v. Gore, 531 U.S. 98 (2000).

44. Colorado v. Salazar, 541 U.S. 1093 (2004) (Rehnquist, C.J., joined by Scalia, J., and Thomas, J., dissenting from the Court's denial of certiorari).

45. While the relevant Bush v. Gore concurrence had only three Justices, its logic was likely supported by two others as well. See Vikram David Amar and Alan Brownstein, Bush v. Gore and Article I: Pressured Decision Makes Dubious Law, 48 FED. LAW. 27 (2001).

46. Id.

Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 739 way that interferes with the state legislature's wishes. That kind of interference, these Justices thought, was precisely the federal constitutional violation happening in Florida in late 2000: Florida courts were trammeling the unfettered discretion the federal Constitution gave to the state legislature, by use of the word "legislature" in Article IlI.



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