By George Will
Saturday, February 28, 2015
The Supreme Court frequently ponders arcane matters. But
this week, however, in oral arguments concerning two cases, the justices’ task
will be to teach remedial reading to Congress and to Arizona.
On Wednesday, the justices will consider this: Did
Congress mean what it said when, with patently coercive intent, it stipulated
in the Affordable Care Act that subsidies for persons compelled to purchase
health insurance can be disbursed only through exchanges “established by the
state”? If so, billions have been illegally disbursed through federal exchanges
in the 34 states that resisted the ACA’s pressure to establish exchanges.
On Monday, however, the court will consider whether the
Constitution’s Framers meant what they said when, in the Election Clause, they
assigned an important function to each state’s “legislature.” This clause says:
“The times, places and manner of holding elections for senators and
representatives shall be prescribed in each state by the legislature thereof.”
Arizona’s Independent Redistricting Commission (IRC)
supposedly is a better idea. It was created by a state constitutional amendment
passed by voter initiative. The commission is composed of five members. Four of
them are chosen by the majority and minority leaders of the two parties in the
two legislative chambers — but these leaders must pick from a list of just 25
(of the 4.9 million Arizonans of voting age) selected by another state
commission, one for appellate court appointments. No member of the legislature
may serve on the IRC. It draws congressional district maps that are not subject
to even such checks as a gubernatorial veto or referendum. The legislature’s
role is reduced to submitting nonbinding recommendations to the IRC — “a
function without consequence,” as the legislature says in its brief to the
court.
The question is whether this process, which reduces the
Arizona legislature’s role to the vanishing point, complies with the
Constitution’s mandate that the “manner” of elections shall be “prescribed” by
the state’s legislature. The Supreme Court’s Elections Clause jurisprudence
permits limited checks on the legislature’s redistricting prerogative, such as
a governor’s veto. It has, however, never authorized a state to divest its
legislature of all meaningful power to prescribe district lines.
Clearly the clause restricts states’ abilities to do what
the IRC does — nullify the Arizona legislature’s primacy in the redistricting
process. The “I” in the IRC denotes independence from the legislature.
To the suit brought by Arizona’s legislature, the IRC’s
limp response is that the Elections Clause uses “legislature” to denote any
process, such as a referendum, that creates any entity, such as the IRC, that
produces binding edicts. Surely, however, in writing the Elections Clause the
Framers used the word “legislature” as it was and still is generally
understood, to mean the representative body that makes a state’s laws. Arizona
cannot strip its legislature of a power that flows to it from the U.S. Constitution.
Were it not for an unfortunate 19th-century decision, the
court could rule that Arizona’s redistricting arrangement also violates the
Guarantee Clause, which says “the United States shall guarantee to every state
in the Union a republican form of government.” To the Framers, who were
economical and precise with words, this clause had clear content. They believed
that in a republic, the involvement of the people in governance is indirect and
mediated, but real. The essence of republicanism is the principle of
representation: The people do not decide questions, they decide who will decide
— their elected representatives, such as state legislatures.
In 1849, however, the court held that the meaning of the
Guarantee Clause is non-justiciable. That is, its meaning is a “political
question” to be determined by Congress rather than courts. But Clint Bolick of
Arizona’s Goldwater Institute says that here “non-justiciable” means that the
clause “is written in disappearing ink.” So, the Guarantee Clause is less a
guarantee than a suggestion.
This is another example of what is lost when judicial
modesty becomes dereliction of the judicial duty to judge. It is, Bolick says,
arguable that the Guarantee Clause is inapplicable in the Arizona case because
the clause is “an affirmative obligation on the national government rather than
a restriction on the states. But because of the judicial abdication 166 years
ago, we never get that far in the argument.”
So the Arizona case is another legal log fueling the
crackling fire of the conservative argument for a vigorously engaged rather
than a passive judiciary. Which is another reason not to wait until Wednesday
to watch the court.
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