You are on fire. And dead on. The Independent Legislature Doctrine reminds me of the Constitutional Sheriff argument. Let’s find a particular point of government where my side currently holds disproportionate power and appears to be poised to do so for the foreseeable future, and construct some selective historical argument on what THAT particular point of government should overrule others where we have less power. It’s like the old hometown groundskeeper with a fast team coming into town that waters down the base paths and tilts the third base line so balls roll foul. Today we change the rules to favor how our team is built. That’s not even a good metaphor. It would likely require a stadium that would change dimensions when the opponent was at bat. Supreme Court baseball rules. The Major Question Doctrine. If a HR had the effect of a late change in lead against our team, that is so controversial that it must reach the upper deck to count. If it lands in the lower deck, it’s an automatic out. Independent Legislature Doctrine. If a home team runner attempts to steal and is thrown out, the runner has the discretion to determine whether he thinks the call was fair and to reverse it. NonDelegation Doctrine. The opposing pitcher must finish the game and the Manager cannot delegate innings to the bullpen, because a pitcher is supposed to strive for a complete game. Time for pitchers to pitch again. Rule doesn’t apply if it leads to undesirable outcome. The Wrigley Rule. Nighttime baseball is not deeply rooted in baseball’s past, so we reserve the right to invalidate select nighttime scores and replace them with outcomes from the daytime only era. The particular era we revert to will depend on the matchup and resulting need for a competitive advantage. If we’re Cleveland that day, we generally view the issue as it would have been viewed in the 1954 regular season. The Rays are always out of luck with their newfangled Pride Nights. Unitary Executive Theory. No Curt Flood, no ornery minorities with agents. We own you, especially if you’re a minority. All decisions are judged through Qualified Immunity. Voting Rights Cases under Roberts. Hurdles are installed on the first base line during the visitors half of the inning. No need to complain, the hurdles are not super high and you’re still safe if you beat the throw after clearing all the hurdles. Home infielders can trip opposing runners on the base paths and cannot be disciplined or the runner called safe because it violates infielder sovereignty. Home pitchers not subject to balk rule due to pitcher sovereignty. First Amendment money is speech. All rules the Rays use to compete with lower revenues are invalid (some of this actually happened this offseason). No fair scouting Latin American baseball more effectively. No luxury tax or salary cap from other sports. And the hometown teams hire the umpires if they have extra revenues. They can replace the umpire if they don’t think they are getting value.
I think you can make an originalist case for Free Exercise Clause in the First Amendment case. There's natural tension between the Free Exercise Clause and the Establishment Clause, so I think a reasonable originalist case can be made either way. The question is really factual, as in, whether the kids were coerced into praying through threat of retaliation. I do not think there is much evidence of that. Kids claiming they "felt" they were forced is insufficient to make this a violation of the Establishment Clause in my view, and apparently the Court's view. As far as qualified immunity and administrative law, I'd have to do more research. I understand the nondelegation doctrine, but after light research, I was unaware that the history over it was so contested. I tend to think that separation of powers enumerated in Articles I and II, are sufficient to justify what the nondelegation doctrine notes, but one would think that this would have come up earlier and more frequently with definitive answers. I don't think the founders were genuinely expecting Congress to voluntarily relinquish most of their power to agencies to avoid political consequences.
Yep, I'll confess to not understanding much of the legal talk. I know a good bit about my discipline, but when it comes to the legalese, I'm a fish out of water. It's fun to learn from these folks, though.
Self reflection is something better done in private. And i think he'd be ill served taking counsel from libby posters (such as yourseld and commie boy) who hold those whose views are inconsistent with their own in utter disdain, and only approve of them, if and when they approve of their views. Hell to the hell with that. If they can't separate the person from the view, screw em.
This particular issue (independent state legislature doctrine) is very abstract and can be quite complex, so it's not the easiest thing to explain or understand, even for attorneys. I can try to make it more digestible (it's a skill I need to improve on). Here's one of the constitutional provisions: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Where Ben and I disagree is on what the meaning of "Legislature" is. Ben is arguing that it means ONLY the state legislature. Under that interpretation, only the U.S. Constitution would limit the state legislature when it passes election laws that apply to federal elections. The state constitution would not. I am arguing that they were referring to the legislative process as a whole. In Florida, that would mean having the House and Senate pass it and the Governor sign it into law. It would also mean that the state constitution limits what the legislature can pass, in addition to the U.S. Constitution. The import of this is that if Ben is right, all of these state constitutional protections put in place by the people of those states do not apply to election laws that cover federal elections or redistricting maps for Congress (House seats). In Florida, that would mean the Fair District Amendments don't apply to Congressional redistricting. In other states, it would mean their commissions don't apply to Congressional redistricting. It would be a massive change in law. My basic reasoning behind why I think Ben is wrong is because his interpretation requires removing the state legislature from the state (for the purposes of election law). What I mean by that is in Florida, our legislature is a creature of our state constitution. The Florida Constitution created our legislature, set the terms for how it operates, and set the restrictions on what laws it can and can't pass. Here's the part of our state constitution that deals with the legislature for reference: The Florida Constitution - The Florida Senate If the Florida Legislature passes a law that the Florida Constitution bars it from passing, that law becomes null and void (when the courts declare that it violates the Florida Constitution). It is beyond the Florida Legislature's power to pass that sort of law. Because it is the Florida Constitution that tells the Florida Legislature what it can and can't do. What I'm basically trying to get at is you can't disentangle a state legislature from the state constitution. You can't sever that bond. Without the state constitution, there is no state legislature. And without the state constitution saying what the legislature is, what its rules are, and what it cannot do, we essentially have a rogue body in a state of anarchy.
So says the party that's pining hard for a covid social credit system. Damn, it's almost like there will always be different interpretations of the same argument.
It's not hard to make a plausible argument. The question is if there's support for it. And there's little-to-no support for the "independent state legislature doctrine" in our nation's long history.
Which is a point subsumed in the structure of the constitution itself as well. Article I grants powers specifically to "The Congress," but despite that, the president may still veto legislation, and SCOTUS may still engage in judicial review. Because Congress is not just the people in the body, but the legal entity that is created by, and exists subject to, the restrictions, limitations, and rules set forth in the constitution.
Maybe Hell has frozen over, but I actually agree with you, here. Of course I think state legislatures should decide federal election procedures in their states, but they're still bounded by their state's constitutions and judiciaries, provided that the judiciaries aren't re-writing the state's election law, and provided that the laws themselves are Constitutional.
The challenge is that, in this particular case, the North Carolina Supreme Court did, fairly clearly, rewrite North Carolina elections law. North Carolina unequivocally has no ban on partisan gerrymandering. So the North Carolina Supreme Court purported to “find” one hiding somewhere in a combination of the North Carolina constitution’s free elections clause, it’s equal protection clause, and it’s equivalent of the First Amendment. Worse, the North Carolina Supreme Court all but admitted that it was making this up as a new rule but tried to justify doing so by expressly saying that: 1) gerrymandering is bad; 2) North Carolina doesn’t have a citizens referendum process that could be used to ban gerrymandering; 3) the Legislature presumably isn’t going to ban gerrymandering itself; 4) so the courts will just have to prohibit gerrymandering for them. “Gerrymandering should be illegal, so from henceforth it is” is the court making elections law. And, in the absence of something like the independent state legislature theory, there’s not really a fix for that since federal courts ordinarily defer to state courts on interpretation of everyday, run-of-the-mill state law. The in-between path is something like the reasoning in Bush v. Gore, where the Supreme Court says the state court’s ruling is so far out of the bounds of permissible interpretations as to constitute legislating and infringe on the powers dedicated to the state legislature. But, in my opinion, that may be the least satisfying of any of the options.
In other words, you need this "doctrine" because otherwise, state supreme courts can interpret state law in a way you don't like?
When you find a court dumb enough to actually say they were making elections law because the legislature won’t pass a law they want, it gets you the opinion saying you obviously can’t do that.
That's not how judicial review is supposed to work in this country. What you're talking about is outcome-oriented jurisprudence.
I think, at most, it would be an example of bad facts make bad law. I don’t think there’s a ton of dispute that, whatever the elections clause means, it pretty clearly doesn’t mean a state court can say “we’re going to create law because this ought to be the law but the legislature won’t pass it.” And once you get that case, the question just becomes what the test is. It pretty clearly isn’t “it’s fine so long as a state court doesn’t affirmatively acknowledge they’re making law in the legislature’s stead” (I doubt many other courts have the brazenness to own it), and I don’t think the “outside the realm of permissible interpretations” test that Bush v. Gore kind of used is one that particularly lends itself to principled application (although it’s essentially what the National Republican Redistricting Trust argues for in their amicus).
The answer is that they should have never taken the case, as it presents pure state-law issues. Considering this SCOTUS's propensity for putting out shitty, unprincipled opinions (in my opinion, of course), I don't think we really want to set the precedent of "ignore established legal doctrine and do what you want when you think the court of last resort is acting politically rather than in a principled nature."
I know it's convenient to just take the Alito dissent as gospel, but if you actually read the NCSC opinion you would see that they pretty clearly did not say they were "making" election law because the legislature wouldn't. They spent 140 pages analyzing the history and meaning of NC's constitution, and from that came to the conclusion that those provisions--not judicial fiat--prohibit partisan gerrymandering. If SCOTUS can overcome that sort of authoritative interpretation of state law with a standard-issue claim of judicial activism, nearly the entire corpus of SCOTUS's own decisionmaking can be said to fail the same test. I mean shit, you do realize that pretty much every time a SCOTUS justice doesn't like an opinion, they claim in self-assured anger that the Court has defiantly usurped the people's power and legislated from the bench? Gorsuch just did it this week to his own block! In recounting all this, I do not profess certainty about the optimal law enforcement arrangements in Oklahoma. I do not pretend to know all the relevant facts, let alone how to balance each of them in this complex picture. Nor do I claim to know what weight to give historical wrongs or future hopes. I offer the preceding observations only to illustrate the one thing I am sure of: This Court has no business usurping congressional decisions about the appropriate balance between federal, tribal, and state interests. If the Court’s ruling today sounds like a legislative committee report touting the benefits of some newly proposed bill, that’s because it is exactly that. And given that a ninemember court is a poor substitute for the people’s elected representatives, it is no surprise that the Court’s costbenefit analysis is radically incomplete. The Court’s decision is not a judicial interpretation of the law’s meaning; it is the pastiche of a legislative process. This isn't some new or profound observation, Gorsuch's fury notwithstanding. It's standard stuff we've all seen a thousand times before. You may not like NCSC's decision, but they have the authority to make it. End of story.
I did read the opinion. They say they’re doing it in literally the fourth paragraph of the opinion and then spend the rest of the opinion trying to justify why it is okay to do so: “In North Carolina, a state without a citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments, it is no answer to say that responsibility for addressing partisan gerrymandering is in the hands of the people, when they are represented by legislators who are able to entrench themselves by manipulating the very democratic process from which they derive their constitutional authority. Accordingly, the only way that partisan gerrymandering can be addressed is through the courts, the branch which has been tasked with authoritatively interpreting and enforcing the North Carolina Constitution.”
Yes, it’s no answer to assume the NC Constitution expects the legislature to interpret or enforce the law when those tasks are plainly judicial functions. That’s a pretty basic observation. It’s the same reason saying “well we could just amend the constitution to clearly say 2A covers self defense, public carry, and semi auto weapons” isn’t a particularly good response to the Court interpreting 2A as covering those issues. IOW this is a response to a dumb argument, not the basis for the decision.
I think there must be a middle ground between absolute authority given to state legislatures for voting procedures in their state for federal elections, and no checks on the state courts when they overstep their bounds in acting as a check for the legislature.
