Latest posts by Michael Stern (see all)
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- The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility - March 16, 2017
- The President and the Purposes of the Foreign Emoluments Clause (Part I) - March 15, 2017
Having reviewed the most prominent cases regarding the justiciability of Article V claims, today I will analyze how a court would approach the hypothetical lawsuit discussed in an earlier post. In that case Congress calls a convention based on 34 applications for a balanced budget amendment convention and the validity of this congressional action is challenged in federal court. As this recent New York Times article notes, such a “court battle” is likely to ensue once Congress calls a convention. But how would this lawsuit arise and would a court reach the merits of the claims?
Below I address justiciability hurdles and related pitfalls that such a lawsuit would face.
As we have seen, there is a dichotomy of views on the application of the political question doctrine to Article V claims. On the one hand, the academic conventional wisdom has been that Coleman v. Millerstands for the broad proposition that most if not all such claims are barred as presenting political questions. This view is based in part on the idea that courts are or should be reluctant to interfere with the constitutional amendment process, particularly since amendments may be the only political recourse with regard to the Supreme Court’s pronouncements on the Constitution.
On the other hand, the courts that have addressed Article V claims post-Coleman have not found that the political question doctrine bars those claims. For example, the California Supreme Court, in striking down a proposed initiative to compel the state legislature to apply under Article V for a balanced budget amendment convention, questioned whether Coleman was even still good law. American Federation of Labor v. Eu, 36 Cal.3d 687, 698 (1984), stay denied sub nom. Uhler v. AFL-CIO, 468 U.S. 1310 (1984). Assuming Coleman to remain valid, the court followed Judge Stevens’ narrow reading of that case in Dyer, finding that Coleman “rested on the historical precedent of congressional adjudication of the effect of withdrawing a ratification, and the difficulty of determining what constituted a reasonable time for ratification.” Eu, 36 Cal.3d at 699. These considerations were inapplicable, the court reasoned, to the purely legal issue before it of what constituted a “legislature” within the meaning of Article V. Id.
In addition to cases explicitly adopting a narrow view of Coleman, such as Dyer, Freeman and Eu, other cases have reached the merits of Article V-related issues without even discussing the political question doctrine. See, e.g., Miller v. Moore, 169 F.3d 1119, 1124 (8th Cir. 1999) (addressing merits of a claim that Nebraska constitution violated Article V by attempting “to coerce or bind legislators into exercising their Article V powers to pass a term limits amendment”); Trombetta v. Florida, 353 F. Supp. 575 (M.D. Fla. 1973) (finding claim that Florida constitution violated Article V by requiring an election to occur before an amendment could be ratified to be justiciable, but not discussing the political question doctrine).
Although these cases would not prevent a federal court of appeals, much less the Supreme Court, from taking a broader view of Coleman today, collectively they suggest that the narrower view is more likely to prevail. However, for several reasons this conclusion does not necessarily presage a political question victory for the plaintiff in our hypothetical lawsuit.
First, with the exception of Freeman, all of the post-Coleman cases deal exclusively with the procedure within a particular state for accomplishing a step in the Article V process (e.g., application or ratification). Thus, they address the question of whether a state may through legal mechanisms such as the state constitution or the initiative/referendum process attempt to direct or control its legislature’s exercise of these Article V powers (the answer is generally no). These issues had not been the prior subject of “congressional adjudication” and, while theoretically they might have come before Congress at some point, the likelihood of Congress addressing and resolving them in any kind of a reasonable time frame was quite small.
By contrast, our hypothetical lawsuit involves judicial review of an issue that has actually been decided by Congress. The court would be asked to strike down Congress’s decision to call a balanced budget amendment convention. This differentiates the situation from that involved in other Article V cases, where the closest to a potential congressional decision was in Freeman (and Coleman itself) where a ratification had been submitted to the official designated by Congress (i.e., the GSA Administrator in Freeman, the Secretary of State in Coleman). Only if that official had received the required number of purported ratifications (something that never happened in either the case of the Equal Rights Amendment or the Child Labor Amendment) would the possibility of a congressional decision have arisen.
Even more importantly, Article V expressly gives Congress the power (and duty) to call a convention for proposing amendments. Such a “textual commitment” of an issue to a coordinate branch of government is an important element in favor of applying the political question doctrine. See Freeman, 529 F. Supp, at 1126 (discussing the role of textual commitment in post-Coleman political question cases such as Baker v. Carr, 369 U.S. 186, 211-13 (1962) and Powell v. McCormack, 395 U.S. 486, 519-21 (1969)). By contrast, Article V does not expressly make reference to any congressional role in determining whether an amendment is ratified. See Freeman, 529 F. Supp. at 1135 (“it is evident from the balance struck between the two participants [Congress and the states] in the amendment process that the framers did not intend either of those two parties to be the final arbiter of the process”).
Finally, even under the narrower application of Coleman endorsed in Dyer and Freeman, there is a strong argument for concluding that our hypothetical lawsuit is barred by the political question doctrine. The principal question in the lawsuit would be whether Congress had appropriately aggregated 34 state applications for a balanced budget amendment convention despite differences in wording (and timing) among these applications. The question of how similar applications must be to warrant aggregation would seem to be precisely the type of issue not susceptible to judicially manageable standards. As in Coleman, it involves questions that are “essentially political.” See 307 U.S. at 453-54 (“the question of a reasonable time in many cases would involve . . . an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified”).
In short, notwithstanding the strong arguments in favor of a narrow reading of the Coleman decision, it is likely that our hypothetical lawsuit would be barred by the political question doctrine.
Another issue in our hypothetical lawsuit would be whether the plaintiff has standing to sue. There are presumably many potential plaintiffs who might suffer a cognizable injury from the adoption of a balanced budget amendment, but such an injury would be unripe at the time the convention was called. At that point it would be a matter of speculation as to what amendment(s) the convention might consider, which (if any) it might propose and whether such amendment would ultimately be ratified. Such an injury would be too remote to support standing.
One category of plaintiffs would seem to have suffered a ripe injury, however. Any state which does not want to participate in the Article V convention could claim that it is being forced to spend time, money and effort to participate in this allegedly illegal convention. The state might be one that did not submit an application counted by Congress in calling the convention or one that submitted an application which (it claims) Congress erroneously aggregated with others.
There is some possibility that a court would find this injury insufficient to support standing. The court might reason that the state’s real objection to the convention is not the cost and inconvenience of participation, but its opposition to any amendments that might be proposed by the convention. Accordingly, the court might find that the state lacks standing to seek declaratory and/or injunctive relief against the convening of the convention. My sense (without having devoted much attention to the issue) is that a state probably would have standing to sue, though the considerations mentioned above could cause a court to exercise its discretion to withhold equitable relief.
Proper Defendant/Effective Relief
A more significant justiciability problem for our hypothetical lawsuit is finding a proper defendant. The most obvious cause of the plaintiff’s injury is Congress, which called the allegedly unconstitutional Article V convention. But suing Congress is not a viable option. Congress is protected by the legislative immunity stemming from the Speech or Debate Clause, which applies to acts which are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625 (1972). To fully explore the contours of Congress’s immunity from suit would be beyond the scope of this post. Suffice to say that no court has ever entered final judgment or relief against Congress as a whole, or the House or Senate individually, for anything. (To my knowledge the closest any court has come was a district court in the 1980s that seriously considered holding the House in contempt for defying a subpoena).
There are two ways that a plaintiff might try to circumvent this problem. The first is to argue that the calling of a convention is different from other legislative acts because it is ministerial in nature. The Framers clearly intended that Congress have no discretion with respect to calling a convention once the requisite number of state legislatures make application. This, it could be contended, distinguishes the convention call from legislative acts, which invariably involve the exercise of judgment and discretion.
This argument would have some intuitive appeal in a lawsuit against Congress for failing to call a convention, at least if it were undisputed that the prerequisites for the call had been established. But it is difficult to see how it prevails in a lawsuit against Congress for erroneously determining that the prerequisites for a call had been met. Moreover, the calling of a convention, while not the passage of legislation, would seem to fall within “other matters which the Constitution places within the jurisdiction of either House.”
A more traditional means of attempting to circumvent congressional immunity is to sue a legislative officer who participates in the allegedly unconstitutional act that caused the plaintiff’s injury. For example, in Powell v. McCormack, 395 U.S. 486, 504-06 (1968), the plaintiff, a congressman the House had unconstitutionally refused to seat, was unable to obtain relief against the members who voted to exclude him, but was permitted to pursue an action for back pay against the Sergeant at Arms, who was responsible for disbursing members’ salaries.
Unfortunately for our hypothetical plaintiff, there is no congressional official who could be said to participate in the alleged unconstitutional activity as in Powell. One could sue the Clerk of the House and Secretary of the Senate, who would no doubt be charged with transmitting the convention call to the state legislatures. But misconceptions to the contrary notwithstanding, Powell does not stand for the proposition that legislative officers can be sued simply to circumvent legislative immunity and the Speech or Debate Clause. Unlike Freeman (which, as explained previously, is questionable enough on this point), there is no argument that the Clerk and Secretary would be playing anything other than a ministerial role; nor is there any plausible way in which they could be characterized as causing the injury in question. Holding them liable for Congress’s convention call would make no more sense than holding them liable for an unconstitutional law on the ground that they were responsible for enrolling and engrossing the bill.
If the plaintiff cannot sue Congress or its officers, who else might be a proper defendant? One plausible answer might be the Article V convention itself. The plaintiff could seek relief directly against the convention, requesting a declaratory judgment that the convention was unconstitutionally called and an injunction preventing it from assembling.
This answer comes with its own set of challenges, though. For one thing, it is not clear how the convention could be sued, either as a legal or practical matter, until it actually assembles. Prior to that time, there would be no legal entity capable of being sued, nor any practical way for it to conduct a defense of the lawsuit. On the other hand, once the convention assembles, a court is likely to be extremely reluctant to enjoin its proceedings, and it will be harder for the plaintiff to claim it will be significantly damaged by allowing those proceedings to continue. Furthermore, even though the Speech or Debate Clause does not by its terms apply to delegates to an Article V convention, general principles of legislative immunity would strongly counsel against judicial interference in its deliberations. Cf. Tenney v. Brandhove, 341 U.S. 367, 373 (1951) (granting common law immunity to members of state legislature and noting that the Speech or Debate Clause “was a reflection of political principles already firmly established in the States”).
This leaves one alternative (that I can think of, anyway). The plaintiff (i.e., one or more states opposed to the convention) could sue all the remaining states, seeking declaratory and injunctive relief to prevent the defendants from appointing and/or sending delegates to the convention. This would be a complicated, expensive, and probably politically uncomfortable litigation, but it seems like the best solution to the problem of identifying a proper defendant.
One difficulty with this strategy is that a lawsuit between the states would seem to highlight the intensely political nature of the dispute. As a matter of legal doctrine, the identity of the parties may not affect whether the case presents a political question, but it would seem to play into the defendants’ argument that the dispute is one that should be decided, at least in the first instance, by the states themselves assembled in convention.
This problem could be exacerbated by another: controversies between two or more states fall within the Supreme Court’s original and exclusive jurisdiction. 28 U.S.C. § 1251(a). This means the case would have to be brought directly in the Supreme Court. Depending on the makeup of the Court, the plaintiff might see this as an advantage (at least from the standpoint of getting a speedy final decision). But I suspect that being the first stop for such a highly political lawsuit, without lower court proceedings to serve as a buffer, would increase the likelihood that the Court would seek to stay out of the fray. And here the Court can rely not only on traditional justiciability doctrines such as those we have discussed, but it could simply exercise its discretion to decline to hear the case.
The justiciability of Article V cases is not a black and white issue, as I hope my series of posts has demonstrated. There are serious justiciability issues that will need to be considered, but each case will have to be evaluated in light of the considerations I have discussed.
With regard to a challenge to Congress’s decision to call a balanced budget amendment convention, I conclude that (1) the most plausible plaintiff to challenge such a convention call would be a state; (2) the most plausible defendants would be those states that do not join in the lawsuit; (3) such a case would seem to fall within the Supreme Court’s original and exclusive jurisdiction; and (4) there is a strong likelihood that the Court will decline to hear such a case, based on the political question doctrine or otherwise.
[First published at Point of Order at http://www.pointoforder.com/]