The Electoral College: An Internet Age Dinosaur (Part 5): Is the National Popular Vote Proposal a Workable Alternative to Electoral College Abolition?

The Electoral College: An Internet Age Dinosaur (Part 5):

Is the National Popular Vote Proposal a Workable Alternative to Electoral College Abolition?

This post discusses the National Popular Vote (“NPV”) proposal, a widely supported alternative to amending the Constitution to abolish the Electoral College. Supporters argue it would achieve the same result as abolition. And they contend that it will be exceptionally difficult, perhaps even impossible, to amend the Constitution instead. [1] Anyone who supports popular election of the President should support the NPV proposal, for reasons given in previous posts in this series as well as those below. However, there are important questions about supporters’ claims that it is guaranteed to work in practice under current law. To ensure that it will work, supporters should get it approved by Congress as an interstate compact.

What is the National Popular Vote Proposal?

Here’s how the National Popular Vote (“NPV”) proposal works. Each participating state adopts legislation agreeing that it will cast all of its electoral votes for the national popular vote winner if enough other states (that is, states together possessing 270 electoral votes or more) agree to do so. Once enough states adopt the NPV proposal, it will go into effect. [2] For purposes of this post only, let’s assume that the NPV proposal is constitutional. [3] It is carefully thought out. In principle, it achieves the same results as amending the Constitution to provide for direct election of the President by a national popular vote.

How Much Support is there for the NPV Proposal?

As of early 2015, eleven states (including New York and California), with a total of 165 electoral votes, have passed this legislation. It has also passed at least one legislative house in several other states. Supporters state that there is strong popular support in every state for which polling data are available for electing the president by a national popular vote. [4] And they claim that the NPV proposal has bipartisan support. According to nationalpopularvote.com, “For example, the most recent state to enter the compact is New York, in April 2014. In the Republican-controlled New York Senate, the chamber approved of the bill 57-4, and majorities of both parties voted for the bill in both legislative chambers.” [5] Now, to simplify life even more, let’s assume that the NPV proposal is adopted by enough states so that it goes into effect. [6]

Is the NPV Proposal Guaranteed to Work in Practice?

But is the NPV proposal guaranteed to work in practice as supporters claim? Unfortunately, no. It has an Achilles’ heel that must be overcome: it is very likely under current law that the NPV compact would be unenforceable if a State reneged on an agreement to observe it during an election. [7] Here’s what has happened in the past, and might happen in a future election even under the NPV.

During the 1800 election, in which John Adams and Thomas Jefferson were the major party candidates, legislatures in at least four states (three of them very large ones) deliberately changed their laws for distributing electoral votes to try to alter the outcome in favor of the candidate preferred by the state legislature. In Pennsylvania alone, Thomas Jefferson probably lost 7 out of the 15 Pennsylvania electoral votes as a direct result of the legislative change (about 10 percent of his total vote). [8] Thus, it is not unrealistic to think that in a future close election, partisans of one candidate or another might try to persuade a legislature to renege on its agreement to observe the NPV.

Imagine what the 2000 presidential election (George W. Bush v. Albert Gore, Jr.) would have been like if states that together had a small majority of Electoral College votes (say, 280 or 290), including Florida, had adopted the NPV prior to the election. Suppose Florida’s legislature had then changed its mind and given its twenty-nine (29) electoral votes to the national popular vote loser (Bush), changing the election outcome. NPV supporters’ argument that if the NPV had been adopted by Florida, its legislature could be prevented from changing its mind in such a case (for example, by an NPV provision or by a federal law purporting to limit the legislature’s freedom of action), is likely to lose under current Supreme Court precedents interpreting Article II. Instead, the Supreme Court would quite probably uphold the election of the Electoral College winner (see note 9). [9] Therefore, there is no guarantee that the NPV will work as intended in cases where states renege.

What Should NPV Supporters Do to Assure It Will Work?

Because state legislatures would retain their ability to renege even after adopting the NPV, its supporters would be well-advised to get Congress to approve the NPV as an “interstate compact” under Article I of the Constitution. Congressional approval would guarantee the NPV compact’s enforceability because the Supreme Court would then unquestionably be willing to enforce the compact’s terms (including limits on withdrawal) against participating states.

While getting Congressional approval would not be easy—given pressure from small states, partisan groups, etc.—the debate on the proposal would be healthy. Remember that, in 1969, the Democratically-controlled House of Representatives voted—by a very large margin—in favor of a constitutional amendment abolishing the Electoral College—and it did so with the support of Republican President Richard Nixon, among others. [10] For various reasons, it should be easier to gain approval for the NPV than it would be for an amendment abolishing the Electoral College. Getting Congressional approval would also avoid a situation where Americans in states that were not parties to the compact—which together might well have nearly as many electoral votes as the NPV compact states—felt as though they had been disenfranchised by the NPV.

NPV supporters have stated that it is their position that Congressional consent for the NPV compact is not required but that “nonetheless, National Popular Vote is working to obtain support for the compact in Congress.” [11] Congressional consent is more than simply desirable—it is necessary to guarantee that the NPV will actually work even in the heat of a sharply contested election like the 2000 election. The alternative is to risk politically tragic Supreme Court intervention on behalf of the popular vote loser in yet another presidential election.

Notes

1. History suggests that at least if an abolition proposal were considered by itself, they’re probably right. But note that politically, this is completely different from whether it would be possible to eliminate the Electoral College as one of a series of changes to the Constitution proposed as part of its general revision by a national convention, a concept that will be explored in a later post.
2. Details on the proposal and its current status and support can be found at supporters’ websites: http://www.nationalpopularvote.com; http://www.fairvote.org/reforms/national-popular-vote (accessed 01/07/2015). For a history of the Electoral College and efforts to replace it with direct election of the President, including detailed legal analysis of a National Popular Vote proposal see http://www.every-vote-equal.com/pdf/EveryVoteEqual_web.pdf (accessed 01/10/2015).
3. For a contrary argument, see Norman R. Williams, “Why the National Popular Vote Compact is Unconstitutional,” 2012 BYU Law Review 1523 (2012). For other analyses of the constitutional questions, see particularly the sources cited by Williams at 1525 n. 6, 1526 n. 10, and 1538 n. 67.
4. See state-by-state data in discussion of Myth No. 24, http://www.nationalpopularvote.com.
5. The bill passed the New York Assembly by a vote of 100-32. See http://www.capitalnewyork.com/article/albany/2014/03/8542603/legislature-approves-national-popular-vote (accessed 01/09/2015).
6. It’s not clear that this will actually happen. Each of the states that has adopted the NPV proposal to date has uniformly voted for the Democratic presidential candidate in every one of the past six presidential elections (1992-2012). Some observers believe that it will be difficult for NPV supporters to line up enough additional states to reach their goal of passage by states with more than 270 electoral votes. Some resistance may be based on the same sorts of parochial reasons that have prevented the Electoral College from being abolished so far (see earlier posts in this series). Popular election of the president isn’t a “partisan” issue. Of course, true partisans probably won’t see it that way—so “red” states aren’t especially likely to sign up to the NPV proposal. And key “purple” or “swing” states may not want to do so either—precisely because at least some of them are “winners” under the Electoral College system, since they have more influence under that system than they would under the NPV proposal. See the discussion in James Joyner, “New York becomes 11th state to pass national popular vote law,” April 18, 2014, http://www.outsidethebeltway.com/new-york-becomes-11th-state-to-pass-national-popular-vote-law.(accessed 01/07/2015).
7. The NPV has a provision that is intended to prevent states from reneging in this way—but the important question is whether it can be enforced.
8. For the details, see Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: W.W. Norton and Co., 2005), 98, 822 nn. 57-58.
9. In the Supreme Court’s view, under Article II of the Constitution state legislatures have unrestricted rights to determine how a state’s electoral votes will be cast—they don’t even have to hold a popular vote to decide this. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, rev. ed. 2009), 20. For arguments in favor of enforceability, see http://www.every-vote-equal.com/pdf/EveryVoteEqual_web.pdf, Chapter 8, section 6.2, p. 352-58. The determinative question regarding enforceability is this: given the Supreme Court’s interpretation of Article II’s Electoral College provisions and its interpretations of the Contract and Compact clauses, which provision will the Supreme Court decide “trumps” the others in the event of an apparent conflict (assuming that there is a conflict, which itself is debatable). Suffice it to say that the arguments for enforceability made by supporters are, unfortunately, quite unlikely to persuade the Supreme Court. It would be very desirable for supporters of the NPV to be realistic about the strength (or lack thereof) of those arguments.
10. In 1969, the House of Representatives passed a proposed constitutional amendment providing for the direct election of the President by an overwhelming vote of 338-70, or 83 percent of the House members voting. At the time, the idea of direct election of the President was supported by a broad range of interest groups with differing political views, ranging from the U.S. Chamber of Commerce, to the AFL-CIO, to the American Bar Association, to President Nixon. The proposed constitutional amendment died in the Senate, though it had substantial support there as well. Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975), 150, 172-75.
11. See Myth 1.16.5, The National Popular Vote compact requires congressional consent to become effective, http://www.nationalpopularvote.com/pages/answers/section.php?s=16.

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The Electoral College: An Internet Age Dinosaur (Part 4)

THE ELECTORAL COLLEGE: AN INTERNET AGE DINOSAUR (PART 4)

Faced with persuasive evidence that the Electoral College is remarkably anti-democratic and even dangerous to America in today’s world, its supporters make two primary arguments in its defense. [Note 1] They argue that it should be preserved because it protects the interests of the states, particularly small states, as distinct political entities by giving them added influence in presidential elections (and thus in national policy). And they argue that it protects limited government. Both claims are badly flawed.

Do States Need Electoral College Protection?

Whether it was desirable to treat states as entities deserving special constitutional protection was hotly debated when the Electoral College was created in 1787. Most large state delegates in Philadelphia—and here we can include illustrious Founders such as Madison, Wilson, Hamilton, Franklin, King, and Washington—thought that there was no legitimate reason whatsoever to give states special political advantages in the national government without regard to their population size or wealth merely because they were states. Quite to the contrary, delegates such as James Madison adamantly believed that proportional representation of states based on wealth or population should be the rule for both Houses of Congress in a truly republican government.

Nor was this a new view in 1787. As early as 1776, John Adams of Massachusetts said during Congressional debate over representation in the Confederation that “the individuality of colonies is a mere sound.” [Note 2] By this Adams meant that it was profoundly erroneous to treat colonies as sovereign and equal political entities in the process of building a nation. Yet small states were able to force the 1787 Philadelphia Convention to protect their corporate interests in a variety of ways, such as equal state voting in the Senate and the Electoral College. But this was merely powerful testimony to their bargaining leverage given the urgent political and military need for consensus Convention members believed existed, not proof of the merits of their position. [Note 3]

But continuing a two-century old expedient compromise that gave states as states special influence in Presidential elections is no longer necessary or desirable today. We do not elect Presidents to represent states; they are elected to represent the nation and all of its people. State power in presidential elections cannot be enhanced for some states without prejudicing the interests of the nation, of other states, and of individual voters; it is a zero-sum game (i.e., a game in which when someone wins, someone else must lose, as in dividing up a cake). Other features of the Constitution adequately protect federalism and state interests, without the serious negative side-effects created by the Electoral College. Both the Senate and the Supreme Court have historically been both willing and able to protect state powers and prerogatives under the Constitution. The Court’s federalism decisions in recent years confirm this. For example, look at the Court’s decision in the Affordable Care Act case, in which the Court majority held that Congress had no power to force states to expand Medicaid against their will. [Note 4]

Can Protecting Limited Government Justify the Electoral College?

The argument that the Electoral College is needed to protect limited government is also deeply flawed. Of course, many people think that “limited government” (which often means different things to different people) is desirable. [Note 5] And it is quite possible that the Electoral College effectively supports that view, because its operation exaggerates the political influence of areas of the country (often, small “red” states) where a majority of residents prefer more limited government. But this is actually further proof that the Electoral College is inconsistent with the underlying spirit of the Constitution itself, not an argument in favor of the Electoral College.

America’s history over the past century shows that most Americans reject the view that the Constitution’s purpose is to cast in concrete a particular set of social and economic relationships. Instead, Americans periodically have decided that government’s role in American life should be changed or expanded as social conditions change. For example, Congress did this in adopting major New Deal legislation such as the Social Security Act, and labor and stock market regulation. Since the New Deal, the Supreme Court has generally accepted such changes, except where they clearly violated constitutional rights or structural principles. In the process, the Court has essentially agreed with Justice Holmes’ famous dissenting view, in a case that struck down New York state protective social legislation, that:

…[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. [Note 6]

Instead, as Holmes saw, the Constitution’s primary purpose is to provide a fair and orderly mechanism through which the people, the ultimate source of political power and legitimacy in our democracy, may peacefully decide (through representatives) that fundamental social or economic changes are needed and put them into effect. [Note 7] In contrast, to argue that the Electoral College is needed because it effectively protects limited government by exaggerating its supporters’ influence is in reality to argue that it is desirable to prevent constitutionally permissible political changes sought by the majority of the people by artificially blocking or distorting the operation of their will. This is inconsistent with the underlying spirit of the Constitution and especially with our nation’s pressing need for peaceful but effective change to improve our government, so this argument for the Electoral College must be rejected. If supporters of limited government are going to prevail, they need to do it through the democratic process, not through the Electoral College.

In deciding whether to continue the Electoral College, therefore, it is important to weigh the evidence of its serious disadvantages only against real benefits to the nation as a whole, not against the supposed benefits to states or to supporters of limited government.

NOTES

1. For this evidence, see Parts 1-3 of this series of posts.
2. Adams in Thomas Jefferson, Writings (New York: Library of America, 1984), 29.
3. Though, unlike Adams, various individuals then did believe that states should be treated as sovereigns, this is beside the point here. We can also disregard for present purposes the fact that the Electoral College politically strengthened slavery during the early American republic.
4. National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, 567 U.S. ___ (June 28, 2012).
5. Observations about the role of government here are not intended to imply any view on the desirability (or lack of desirability) of government’s role in any part of national life–instead, they concern only how such views relate to the structure of the Constitution.
6. Lochner v. New York, 198 U.S. 45 (1905), at 198 U.S. 75-76 (Holmes, J., dissenting).
7. Justice Holmes’ extensive service as a soldier in the Civil War made him exceptionally well-qualified to advance a view of the Constitution conducive to peaceful social change. For Holmes’ moving reflections on the Civil War, see his May 30, 1884, Memorial Day Address, “In Our Youth Our Hearts Were Touched with Fire,” http://people.virginia.edu/~mmd5f/memorial.htm.

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The Electoral College: An Internet Age Dinosaur (Part 1)

The Electoral College:  An Internet Age Dinosaur (Part 1)

For 225 years, the Electoral College has elected the American President, not the American people.  In fact, it was created to prevent Presidents from being elected by popular majorities.  Constitutional scholar Akhil Amar called it “a constitutional accident waiting to happen” in 1998.  Shortly afterwards, it caused bitter political controversy.[1]  In 2000, George W. Bush, who lost the popular vote, was still elected president by winning Florida’s electoral votes–at least according to five unelected Supreme Court justices.  This post explains how the Electoral College works, why the Founders created it, and why it is a dinosaur in the Internet Age.[2]

The Electoral College may seem mysterious, but it is based on a few simple rules.[3]  All actual votes for President are cast by individuals called “electors,” not by ordinary voters. [4]   Electors are chosen  by states.  Each state receives one elector for each Senator and Congressional seat it has.[5]  State legislatures are free to decide how to choose electors.[6]  Individual Americans have no constitutional right to vote even for Presidential electors, let alone directly for President.[7]  All fifty state legislatures could decide to choose the Presidential electors themselves, and negate the results of a popular vote for electors, even after the popular vote had all been cast.  If no candidate for president receives a majority of the Electoral College vote, the House of Representatives decides who will become President, a process commonly called “contingent” election.  Why did we create such a system?

*******************

The Electoral College grew out of a compromise by the 1787 Philadelphia Constitutional Convention.  The Founders argued throughout their four month-long meeting about how the President should be elected.  That issue was among the last major ones resolved.  The College was a solution to a tug-of-war not only over who would elect the President but, just as importantly, how powerful the office of President would be.

Some delegates, such as Roger Sherman of Connecticut, favored election of the President by Congress because it would make the President far weaker than a king. They wanted the President to “exist primarily as an agent for carrying out Congress’s will.”[8]  Sherman said that he wanted the President to be “absolutely dependent” on Congress, as it was Congress’ will “which was to be executed.”[9] Making the president independent of Congress would be “the very essence of tyranny.”[10] Some delegates, including Elbridge Gerry of Massachusetts and Gunning Bedford of Delaware, went so far as to propose that the President be chosen directly by the state legislatures.[11]  Other delegates, such as William Paterson of New Jersey and  his small state coalition, wanted to make the presidency so weak that they proposed that the President be removeable from office by a majority of state governors.[12]

Other prominent delegates, including Alexander Hamilton of New York, James Wilson of Pennsylvania, and James Madison of Virginia wanted a stronger President.  They envisioned a leader who could be independent of a “state-dominated” Congress and instead represent the broad national interest.[13]  Wilson argued that the President should be elected directly by the people, which would avoid problems such as undue Congressional influence.  James Madison described popular election as the best way to choose an able President, at least in principle.  But others such as Elbridge Gerry described popular election as a “radically vicious” idea, pointing to the “ignorance of the people.”  Gerry believed that if the people were allowed to elect the president, they could be dominated by groups of “respectable, united and influential men.”[14]  Charles Pinckney of South Carolina thought that the people could be duped by “a few active and designing men.”  George Mason of Virginia added that popular election of the President would be “the equivalent of ‘refer[ring] a trial of colors to a blind man.”[15]  Ultimately, even most delegates who wanted a stronger president were unwilling to support direct popular election.   Wilson’s proposal for direct election was defeated by a vote of nine states to one.

Caught between significant opposition to popular election of the President and many delegates’ continued opposition to Congressional election, the Philadelphia delegates compromised by inventing the Electoral College.  Under this convoluted system, states could decide how to choose electors, who would then in turn actually choose the President.  But the advocates of strong state authority and a weak presidency extracted vitally important concessions in return.  Most relevant here, small states were assured a large “bonus” vote, by giving each state, no matter how small, a minimum of three electors in the Electoral College.[16]

By the early nineteenth century if not before, informed observers had concluded that at least parts of the Electoral College system violated republican principles of proportionality and voter equality.   As Sanford Levinson points out, James Madison acknowledged as much.  In 1823, Madison wrote:

The present rule of voting for President by the House of Representatives is so great a departure from the Republican principle of numerical equality…and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends.[17]

Today, the anti-democratic rationale underlying the Electoral College has been rendered obsolete by changes in American social conditions.[18]  In the Internet age, an overwhelming majority of voters can readily obtain necessary information about presidential candidates and discuss issues widely online, so there is a nearly level “information playing field.”  There would be no relative disadvantage to states from allowing popular elections due to differing voter eligibility rules.  And there is no longer any plausible justification for giving voters in different states votes of greatly unequal weight in Presidential elections.   It will strengthen our democracy to give the people the right to elect the President directly by majority vote.  The Electoral College is an Internet Age dinosaur, and it should be abolished.[19]

Notes

[1] Akil Reed Ahmar, “An Accident Waiting to Happen,” in Constitutional Stupidities, Constitutional Tragedies, ed. William N. Eskridge Jr. and Sanford Levinson (New York: New York University Press, 1998), 15-17.

[2] Future posts will explain other very unfortunate side effects of continuing to use it to elect Presidents.

[3] Article II, Section 1 of the Constitution established the Electoral College system.  A good general overview of its history and of the issues it raises is Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996).  Also informative is Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975).   For incisive analyses of problems with the Electoral College see Amar, “An Accident” (see note 1); Sanford Levinson, Our Undemocratic Constitution:  Where the Constitution Goes Wrong (and How We the People Can Correct It), 81-97, and  George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004).  Earlier scholarly analysis of various biases in voting created by the Electoral College is found in John H. Yunker and Lawrence D. Longley, eds., The Electoral College:  Its Biases Newly Measured for the 1960s and 1970s, vol. 3: 04-031, Sage Professional Papers in American Politics (Beverly Hills: Sage Publications, 1976).

[4] Though there is debate on the issue, electors do not appear to be constitutionally required to vote for any particular candidate for President.  Longley and Pierce, Primer, 102-109; Edwards, Electoral College, 17-27.  This leads to the problem of the so-called “faithless elector,” who decides to vote for a presidential candidate different than the one supported by the voters who elected the elector.

[5] Under the Twenty-Third Amendment to the Constitution, the District of Columbia also receives three electors, though it has no voting Senators or Congressman.

[6] Methods that legislatures have employed during our history (or could employ) include:  choosing electors directly; allowing them to be elected by plurality statewide vote in a “winner take all” system, the system most commonly used today, which is called the “unit rule”; allowing them to be determined by Congressional district majority vote, a system called the “district rule;” or even proportionally awarding them based on the statewide vote for different candidates.

[7] Alexander Keyssar, The Right to Vote:  The Contested History of Democracy in the United States, Rev. ed. (New York: Basic Books, 2009), 262.

[8]  Richard R. Beeman, Plain, Honest Men (New York: Random House, 2009)(“PHM”), 231.

[9] The Records of the Federal Convention, Max Farrand, ed., 4 vols. (New Haven:  Yale University Press, 1966)(“Farrand”), 1: 68.

[10] Id. At the Convention, Sherman also had a strong hand in making sure that under the Constitution, Congress in turn was strongly dependent on decisions made by the states’ legislatures.  At the time, state legislatures could exert powerful influence on Congress because the legislatures directly elected Senators and also strongly influenced the election of federal House of Representatives members by setting their district boundaries. The district boundaries drawn by state legislatures could be so politically arbitrary that the process of creating them became known as the “gerry-mander” after a district was drawn in an odd lizard-like shape specifically designed to protect an ally of Massachusetts governor Elbridge Gerry.

[11] Beeman, PHM, 135.

[12] New Jersey plan, Farrand, 1: 244.

[13] A majority of members at the Convention wanted the President to be able to serve more than one term, and they were concerned, among other things, that Congressional election of the President would lead him to curry favor with Congress in order to be re-elected.

[14] Beeman,  PHM, 252.

[15] Id (emphasis added).

[16] In a second key concession, the Convention accepted Roger Sherman’s contingent election proposal.  Under it, the House of Representatives would vote for President in certain cases.  But it would vote under special rules that gave small states far more power than they would otherwise have had, because each state would cast only one vote, no matter how large it was. A contingent election occurred in 1800, and resulted in the election of Thomas Jefferson by the House of Representatives.  Some historians conclude that it was commonly expected that under the Constitution, the House of Representatives would often choose the President, because the Electoral College would frequently not produce a majority for any candidate.  The contingent system should have been used to decide the 2000 election.  See the dissent of Justice Breyer in Bush v. Gore, 531 U.S. 98 (2000).

[17] James Madison to George Hay, August 3, 1823, quoted in Levinson, Our Undemocratic Constitution, 95.

[18] Ahmar, “An Accident” (note 1).

[19] And it has become obvious in recent years that the Electoral College system has other serious political costs to be discussed in future posts.

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IS AMERICA REALLY A DEMOCRACY?

Is America Really a Democracy?

Many Americans think of the United States as one of the world’s leading democracies.  In theory, here the people rule.  But in reality, the American constitution was designed in part to prevent majority rule from trampling minority rights.  So the Founders added to the Constitution a series of checks on the popular will, including the Supreme Court, the Senate, the presidential veto, and the Electoral College.  But today, these same institutions prevent the majority will from operating far more often than was originally intended.

The Supreme Court’s tenure is a good example.  Justices are appointed for life.   The longer justices live, the fewer opportunities presidents have to choose new justices, who might alter the Court’s direction.  In 1787, there were competing ideas about justices’ tenure.  Some people thought that justices should serve for twenty-five years, others that they should serve for life.  But there wasn’t much difference then, because life expectancies were far shorter than today.  If a justice was appointed in 1789 in his mid-40s, and had a twenty-five year term, the odds were relatively good that he would die before it ended, so it didn’t make much difference whether his term was twenty-five years or life.  Today, differing terms would have far different effects.  If a justice is appointed in his early 40s, it is reasonable to expect that he or she might well serve at least 40 years.   So the Supreme Court today is far less amenable to popular input than many citizens probably wanted in 1787 or now.  At the same time, in cases such as Bush v. Gore (which decided the 2000 presidential election), the Supreme Court has arrogated to itself decisions the Constitution intended Congress to make.[1]

Another example is the presidential veto.  When it was created, it would typically have taken the votes of congressmen and Senators representing about two-thirds of the American population to override a veto.  Today, political scientists think that there may be times when it would require the votes of Senators representing seventy-five percent, or even a considerably higher percentage, of the population to override a veto. Only a very small fraction of vetoes are successfully overridden.  This means that the presidential veto is now far closer to the monarchical absolute veto advocated by a few Founders rather than a substantial check on the popular will.  Yet we still elect these more powerful presidents even when they fail to receive a popular vote majority because we elect them using the Electoral College.  It becomes more anti-democratic and dangerous with every passing day (for reasons to be explored in a series of subsequent posts).[2]

Congress’ broad lawmaking powers were originally seen as the principal means of expressing the popular will.  Other government branches were given their powers primarily as a means of restraining it.   But since the mid-twentieth century, at least, Congress has increasingly abdicated its authority on issues such as military intervention abroad and control of national defense and foreign policy.  In addition, since World War II, Congress has repeatedly delegated what practically amounts to lawmaking authority to the executive branch without agreeing on clear guidelines for its use.  These developments have substantially decreased Congress’ ability to represent the popular will.  Presidential power has been expanding for decades through regulatory action to fill the vacuum left by Congress’ chronic inability to reach meaningful agreements on legislation. We have moved from congressional government toward government through an imperial presidency.

There is one Congressional institution that is more responsible than any other for Congress’ failure to govern–the Senate “filibuster rule.”  Without getting into details, the effect of the filibuster rule is that ordinary legislation cannot pass the Senate unless at least sixty Senators agree to it.  This means that legislation cannot pass unless it is watered down to make it acceptable to a significant number of Senators in the minority on a legislative issue.  On any issue where the major parties are sharply divided, this means that legislation will not move forward unless the majority permits the minority to exercise a veto on its content.  The filibuster rule can only be defended on the grounds that it is necessary to ensure that minorities are reasonably consulted on legislation.  But why should minorities be able to hamstring progress when the issue is one of legislative policy rather than one that affects fundamental rights (which can be protected in court)?  Isn’t the purpose of electing majorities to give them the authority to govern?  If they choose to do so without addressing minority interests and voters are unhappy about this, they can retaliate at the polls by making a minority into a majority. [3]

The fact that neither Democrats nor Republicans are willing to end the filibuster rule–even though both have at times had the power to do so–shows that it is more important to both parties to continue to have a stranglehold on the entire Congressional legislative process than it is to them to actually govern by passing legislation.   This means that ensuring that they have the ability to protect the status quo–to prevent change–is actually their paramount objective. This means that needless gridlock will persist.  It also means that presidents become more powerful, and so presidential elections become the focus of politics.

America was not intended to be a pure democracy, or even a pure republic.  But it was surely intended by the Founders to be more republican than it is today.  Today, on many important issues, where sixty–or seventy–or even eighty percent of the population clearly wants change to occur, the government does not respond, or responds only when a crisis forces action.  It should come as no surprise that as a result popular support for government institutions has sharply declined over the past several decades.  It is high time for our antiquated constitution to change.[4]

[1] On this, see the brilliant dissent of Mr. Justice Breyer in Bush v. Gore, 531 U.S. 98 (2000).

[2]  A very small percentage of presidential vetos have historically been overridden (about 7 percent as of 2004).  Of course, the coalitions that would sustain a veto will depend on the nature of the issue, and on whether the president is willing to trade votes for support or opposition on other legislation.  But today the Senate consists of states so disproportionate in size that if Senators from the top fifteen or so states in population, which together have about two-thirds of the nation’s population, all voted to override a veto, they would not have nearly enough votes to override it, even if their only opponents were the Senators from the seventeen smallest states, which have much less than twenty percent of the population.  Similarly, the populous states would also lose whenever they were opposed by Senators representing only twenty-five percent of the population.  For more information and background on veto procedure, see http://www.archives.gov/legislative/resources/education/veto/background.pdf (accessed 11/30/2014) and Elizabeth Rybicki, “Veto Override Procedure in the House  Senate,” Congressional Research Service report, July 19, 2010.

[3] For the history of the filibuster rule and details of its operation, see Charles Tiefer, Congressional Practice and Procedure:  A Reference, Research and Legislative Guide (Greenwood, 1989).

[4] A number of the points made in this post are discussed in broader context in Sanford Levinson’s perceptive book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford University Press, 2006), which also considers various reforms.  For another thought-provoking analysis of various possible constitutional changes, see Larry J. Sabato, A More Perfect Constitution: Why the Constitution must be revised:  Ideas to inspire a new generation  (Walker Publishing, New York, 2008).  Note:  Reference here to these books is not intended as an endorsement of their proposed reforms.

PRESIDENT OBAMA’S IMMIGRATION EXECUTIVE ACTION: WHAT ARE CONGRESS’ REAL OPTIONS?

President Obama’s Immigration Executive Action:  What Are Congress’ Real Options?

President Obama on November 20 announced executive actions (referred to here as “the Order”) that will have the effect of preventing the deportation of perhaps as many as four to five million “illegal” immigrants and providing many of them with work permits.[1]  The President ordered that (as a practical matter at least) federal officials should not enforce the immigration laws against various categories of immigrants who meet certain conditions.  Some members of Congress view this sweeping action as an abuse of executive power.   This post examines its constitutionality and the very limited responses available to Congress.  It concludes that Congress can either pass immigration legislation acceptable to the President, or wait until after the 2016 election, because Congress cannot successfully block the President’s Order.

The  President is the nation’s chief law enforcement officer.  The constitutional requirement that the President “take care that the laws be faithfully executed” imposes a duty to enforce the laws on the President, and with that duty necessarily comes the power to enforce.  The important question is how the duty is defined.  At one end of the enforcement spectrum, the President cannot simply refuse to enforce a clearly constitutional law; for him to do so would be an impeachable offense.[2]  At the other end, except in extraordinary cases, Congress cannot remove all discretion from the President about how a law should be enforced, because it would be usurping his/her constitutional authority.  The difficult questions about constitutionality occur in the middle of the spectrum, which is where discretion exists and President Obama’s action occurs.

How broad is a president’s discretion to enforce–or in this case, to not enforce–the law?  This issue has existed since Thomas Jefferson’s presidency, and has never been resolved.   But it can argued with considerable force both from the constitutional text and from historical precedents that the constitution explicitly gives the President sole authority over the enforcement or nonenforcement of laws (except perhaps at the ends of the spectrum described above).[3]  The President is granted broad law enforcement authority to enable him/her to check abuses by other government branches.  The need for enforcement discretion is especially clear where enforcement resources are scarce and enforcement priorities therefore must be set by the President, as is true in the case of immigration.  So, President Obama’s Order can reasonably be defended on constitutional grounds.  The contrary argument  is that the scale of the President’s action goes beyond the bounds of permissible discretion.  This too is a tenable claim–but what matters for practical purposes is whether Congress can successfully block the Order.[4]

There are a limited number of ways Congress can enforce its disagreement with the President over this Order and realistically, most won’t work.  They include a lawsuit; impeachment proceedings; and blocking legislation.  In many cases, Presidents’ uses of their authority can be reviewed by federal courts.  Here, however, the Supreme Court is unlikely to intervene, because President Obama’s use of power raises what is usually regarded as a political question, a type of issue courts refuse to decide.  His Order involves a longstanding policy disagreement with Congress.  Unlike President Truman’s decision in the Steel Seizure cases, the President is not proposing to seize large amounts of private property to enforce his policies.[5]  The courts will quite probably refuse to intervene.

As an alternative, if Congress objects to the president’s action, it can impeach him. Here let’s leave entirely aside whether the President’s action is an impeachable offense.  It’s more important that Republicans will very probably be unable to muster the two-thirds Senate vote needed to impeach President Obama on this issue, because this would require about one-third of Democratic senators to vote for impeachment even if all Republican Senators did so (which is not at all certain). Impeachment hearings might be educational, but impeachment won’t happen, and would be a waste of resources.

This leaves Congress with two other alternatives.  It can either adopt regular legislation to block this action, or try to force the President to change it by shutting down the government or restricting it through the appropriations process.  The regular legislative route is probably blocked by the Senate’s filibuster rule, which  requires 60 votes to adopt legislation.  It’s unlikely that enough Democratic senators will defect from the President’s position in view of the issue’s significance for the 2016 election.   And it’s extremely unlikely that Republicans will change the filibuster rule to lower the number of votes needed for cloture.  This rules out ordinary legislation.

Shutting down the government has generally been a disaster politically for Republicans.    It will be very hard to argue that any damage the Order may cause before Congress legislates would be irreparable.  For shutdown to succeed, a majority of the public would need to think that it was so important to prevent the Order from taking effect that they are willing to interrupt all government nonessential operations. This seems unlikely. Some members of Congress apparently think that they could avoid shutdown and still block the Order by refusing to appropriate funds for agencies that would implement it, but this approach is unlikely to withstand a veto, and faces the same political problems as shutdown.

President Obama has argued that his Executive Order is designed to force legislation. Getting reluctant Congresses to act is part of what we elect presidents to do.  If legislation passes while he is president, it will look very different than it would if Congress delayed action until a new president is elected.  Congress will have to decide whether it can afford to wait President Obama out, if it refuses to compromise with him.  That would be a huge gamble politically, because it would leave the issue open to affect the 2016 election.

Notes

[1] The Administration’s executive actions apparently are being implemented by the Department of Homeland Security, rather than through an Executive Order, but the basic constitutional analysis will turn on the view that the President is authorizing and directing all of these actions, so the use of the term “Order” will be convenient here. A Justice Department memorandum providing a detailed analysis of the proposed actions by the Department of Homeland Security may be found here: http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf. This post does not address the substance or policy merits of the Order. Quotations are placed around the word “illegal” simply to show that some people dispute that characterization of the status of these individuals.  For this post’s purposes, that dispute is irrelevant.

[2] It is often thought that the phrase “Treason, Bribery, or other High Crimes and Misdemeanors” in the Constitution defining impeachable offenses (Art. II, Sec. 4) means that the President and other officials can only be impeached as a result of serious criminal misconduct.  In fact, the debate at the Constitutional Convention shows that the phrase “high crimes and misdemeanors” was added specifically to meet the objection of George Mason that an earlier more limited formulation would not permit impeachment for political offenses.  Max Farrand, Records of the Federal Convention of 1787 (4 vols., New Haven, 1966), 2: 550.

[3] This is the essence of Justice Scalia’s argument that the independent prosecutor statute was unconstitutional in his persuasive dissent in Morrison v. Olson, 487 U.S. 654 (1988).  Several of America’s leading presidents would have endorsed Scalia’s position.

[4] For a survey of opinions on the constitutional issue, see the New York Times, November 19, 2014 at  http://www.nytimes.com/roomfordebate/2014/11/18/constitutional-limits-of-presidential-action-on-immigration-12?smid=nytcore-ipad-share&smprod=nytcore-ipad . For a letter by Laurence Tribe, Eric Posner, and other constitutional scholars defending the constitutionality of the President’s actions see https://time.com/3598790/immigration-reform-executive-actions-barack-obama-deportations-law-scholars-washington/

[5] Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).