DOCSLIB.ORG

Reconstructing the Congressional Guarantee of Republican Government

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Reconstructing the Congressional Guarantee of Republican Government Reconstructing the Congressional Guarantee of Republican Government David S. Louk* The Republican Guarantee Clause of Article IV, Section 4 promises that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Although this clause might seem to confer significant power to oversee the political structures of the states, ambiguity about the Clause’s meaning, coupled with the Supreme Court’s historic disinclination to define its contours, have led some observers to question whether the Clause is a paper tiger. While recent scholarship has focused mostly on what a “Republican Form of Government” might entail, less attention has been given to the threshold questions of who might serve as guarantors of the Clause and precisely what forms of action they might take under it. This Article concludes that while all federal branches may have a role to play as guarantors of republican government, the logic, location, and history of the Republican Guarantee Clause suggest that the Clause most directly empowers the political branches, and especially Congress, to act as guarantor. Often forgotten, but of critical importance, is that the Clause served as the chief constitutional basis for Reconstruction after the Civil War, and it helped pave the way for ratification of the Fourteenth and Fifteenth Amendments in the southern states. This history suggests that the Clause and those Amendments— on which twentieth-century voting rights legislation was based—should be understood and interpreted in light of one another. This Article explores the role the Clause might play as an alternative source of federal legislative power to guarantee basic political processes alongside—or in place of—these Reconstruction Amendments. These questions have renewed significance today, given recent and frequent constitutional confrontations between Congress and the Supreme Court regarding the scope of Congress’s constitutional power to interpret and enforce the Reconstruction * Academic Fellow, Columbia Law School; J.D., Yale Law School, 2015; Ph.D., Jurisprudence & Social Policy Program, UC Berkeley, 2019. For excellent comments, suggestions, and conversations at various stages of this project, my sincere thanks to Wendy Brown, Heather Gerken, Daniel Hemel, Kinch Hoekstra, Cameron Kistler, Chris Kutz, Gillian Metzger, Christina Ponsa-Kraus, Robert Post, David Pozen, Richard Primus, Reva Siegel, Sarah Song, Karen Tani, and the participants at the Columbia Law School Academic Fellows Workshop. Special thanks to B., as always. 673 674 VANDERBILT LAW REVIEW [Vol. 73:3:673 Amendments. Most recently, in Shelby County v. Holder (2013), the Court struck down portions of the Voting Rights Act as extending beyond Congress’s Fifteenth Amendment Enforcement Clause power. Around the same time, many state governments began to impose new restrictions on voter registration and access to the ballot box. These new measures, coupled with the Supreme Court’s holding in Rucho v. Common Cause (2019) that legal challenges to partisan gerrymandering are not justiciable in federal courts, has provoked renewed calls for federal protections to guarantee fairness in state political processes. Other recent developments, including the 2020 coronavirus pandemic, have also led to calls for greater congressional oversight of state electoral procedures. This Article considers whether the Clause might serve as an additional constitutional basis for federal legislation and explores the interpretive arguments Congress might raise to justify the power to reform electoral processes in the states under the Clause. This Article also questions the prevailing view that the Supreme Court has always treated the Clause as functionally nonjusticiable. It argues that even following established precedents, the contemporary Court might well engage with the merits of legislation and litigation commenced under the Clause, given the Court’s recent penchant for enhanced scrutiny of congressional enforcement powers under the Reconstruction Amendments. Such challenges would spark a historical constitutional confrontation between Congress and the Court as to the meaning of the Clause. The Court might take one of several approaches when interpreting Congress’s power to legislate under the Clause, and this Article concludes that the Clause is the rare constitutional provision that would seem to grant both the courts and the political branches independent and complementary bases to guarantee republican government. Judicial scrutiny of congressional actions taken under the Clause should be heightened when congressional efforts can more readily be achieved by the states or by the courts and diminished when only Congress or president could effectively serve as the guarantor. INTRODUCTION ............................................................................... 676 I. THE COURT AND CONGRESS AS CONSTITUTIONAL INTERPRETERS ..................................................................... 686 A. The Coequal Interpreters Account: The Republican Guarantee Clause, the Political Question Doctrine, and Legislative Constitutionalism .......................... 687 B. The Judicial Supremacy Account: The Reconstruction Amendments and Juricentric Constitutionalism .................................................... 691 II. THE POLITICAL BRANCHES AS GUARANTORS OF REPUBLICAN GOVERNMENT ................................................. 699 2020] GUARANTEEING REPUBLICAN GOVERNMENT 675 A. Presidential Action to Guarantee Republican Government in Rhode Island ................................... 700 B. Civil War–Era Congressional and Presidential Restoration—and Redefinition—of the Republican Form of Government ................................................ 705 1. Presidential Invocations During and After the War ......................................................... 708 2. Congressional Reconstruction of Republican Forms of Government ................................... 711 3. Guaranteeing Ratification of the Fourteenth and Fifteenth Amendments ......................... 715 4. Judicial Deference to Republican Reconstruction .............................................. 718 III. THE COURTS AS GUARANTORS OF REPUBLICAN GOVERNMENT ...................................................................... 722 A. A Guarantee of Federal Noninterference in Minimally Republican State Sovereigns ................. 722 B. A Guarantee Against Plebiscites and Delegations of Lawful State Authority ........................................ 729 C. A Guarantee of Individual Rights Inherent in Any Republican Form of Government ............................. 733 IV. INTERPRETATION AS CONFRONTATION: THE COURT, CONGRESS, AND THE MEANING OF THE REPUBLICAN GUARANTEE CLAUSE ........................................................... 734 A. A Twenty-First-Century Legislative Guarantee of Republican State Governments ............................... 736 B. Constitutional Confrontation: How the Court Might Review Congressional Action and Interpretation .... 740 1. Justiciability ................................................. 741 2. The Meaning of Each Part of the Clause ..... 743 a. “The United States” ........................... 744 b. A “Republican Form of Government” ...................................... 744 c. “Guarantee” ....................................... 747 3. Modes of Judicial Scrutiny ........................... 751 a. The Katzenbach “Any Rational Means” Analysis ................................ 751 b. The Boerne “Congruence and Proportionality” Analysis .................. 752 c. A Departmentalist “Necessary and Proper” Analysis ................................ 753 CONCLUSION ................................................................................... 755 676 VANDERBILT LAW REVIEW [Vol. 73:3:673 The United States shall guarantee to every State in this Union a Republican Form of Government . —Article IV, Section 41 INTRODUCTION The civics-textbook account of the U.S. Constitution is that it sets out a separation of powers by allocating particular roles and functions to each of the three branches of government.2 Article I specifies the legislative powers and responsibilities of Congress, Article II sets forth the executive powers of the president, and Article III describes the judicial authority of the Supreme Court and lower federal courts. Yet the structure of the Constitution is not quite so straightforward. Section 4 of Article IV, for instance, provides in one clause that “[t]he United States shall guarantee to every State . a Republican Form of Government,”3 but the Section fails to clarify the identity of the guarantor. Which branches and actors may act on behalf of “The United States,” and what actions may they take to fulfill that guarantee? The Republican Guarantee Clause is the only clause in the Constitution to raise this captivating interpretive problem. It is one thing to create and assign distinct constitutional powers to each of the three branches, as the Constitution’s first three articles do. It is quite another to create a power under the Constitution and fail to clearly assign it at all: the Clause marks the only place in the originally ratified Constitution where “[t]he United States” appears in the nominative form as the subject of a sentence. The Clause’s textual ambiguity, its location within Article IV,4 and its seemingly broad potential render the Clause something of an alluring constitutional lacuna. Over the years, scholars have repeatedly explored possible meanings
Load more

Recommended publications
  • Clauses of the Constitution
    Short-hand references to some of the important clauses of the Constitution Article I • The three-fifths clause (slaves count as 3/5 of a citizen for purposes of representation in the House and “direct taxation” of the states) Par. 2, clause 3 • Speech and debate clause (Members of Congress “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”) Par. 6, clause 1 • Origination clause (revenue bills originate in the House) Par. 7, clause 1 • Presentment clause (bills that pass the House and Senate are to be presented to the President for his signature) Par. 7, clause 2 • General welfare clause (Congress has the power to provide for the common defense and general welfare of the United States) Par. 8, clause 1 • Commerce clause (“The Congress shall have power . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) Par. 8, clause 3 • Necessary and proper (a/k/a elastic) clause (Congress has the power to make all laws that shall be necessary and proper for executing the powers that are enumerated elsewhere in the Constitution) Par. 8, clause 18 • Contracts clause (States may not pass any law that impairs the obligation of any contract) Par. 10, clause 1 Article II • Natural born citizen clause (must be a natural born citizen of the United States to be President) Par.
    [Show full text]
  • Redeeming the Welshed Guarantee: a Scheme for Achieving Justiciability Ethan J
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2002 Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability Ethan J. Leib Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Ethan J. Leib, Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability, 24 Whittier L. Rev. 143 (2002-2003) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/91 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. REDEEMING THE WELSHED GUARANTEE: A SCHEME FOR ACHIEVING JUSTICIABILITY ETHAN J. LEIB I. INTRODUCTION I am scavenging here.1 The feast of the republican revival in the law reviews is long over, 2 and one is more likely to encounter a commemorative symposium upon the anniversary of its death than a celebration of its continued vitality in legal scholarship. But I have * Law Clerk designate, the Honorable John M. Walker, Jr., Chief Judge, United States Court of Appeals for the Second Circuit. B.A., Yale; M. Phil, Cambridge; M.A., Yale; J.D./Ph.D Candidate, Yale. I wish to thank Bruce Ackerman, David Mayhew, David Cameron, and Daniel Doherty for their comments on earlier drafts. 1. See Kathryn Abrams, Law's Republicanism, 97 Yale L.
    [Show full text]
  • How the Guarantee Clause Can Address State Political Lockup
    REFEREES OF REPUBLICANISM: HOW THE GUARANTEE CLAUSE CAN ADDRESS STATE POLITICAL LOCKUP JARRET A. ZAFRAN* Our Government derives its legitimacy from the consent of the governed, generally measured through our elections. When incumbent powers create structures and rules for our politics that entrench the status quo and limit voter control, however, the legitimacy of that consent is tested. For more than fifty years, and in spite of the “political question doctrine,” the Supreme Court has adjudicated challenges to franchise restrictions, gerrymandering, ballot access provisions, and more. In doing so, the Court utilizes doctrinal frameworks that focus on harms to individual rights and not on structural harms to the competitiveness, accountability, and responsive- ness of our politics. This myopic view leaves systemic entrenchment and political lockup largely untouched. Scholars have identified these doctrinal deficiencies, but have not suggested an alternative textual basis for judicial intervention in these cases. This Note offers a potential solution in the Guarantee Clause. It argues that the Clause embodies a promise of popular sovereignty in the states. I contend that the Guarantee Clause can and should be revived to unburden the courts from the deficiencies of existing doctrine and provide a textual basis for addressing the problems of political malfunction. INTRODUCTION ................................................. 1419 I. POLITICAL ENTRENCHMENT AND DOCTRINAL DEFICIENCIES .............................. 1422 A. How Supreme Court Doctrine Enables Entrenchment .............................. 1423 B. Scholars Identify the Doctrinal Problem, but Do Not Offer a Textual Solution ................ 1429 II. THE FALL AND POTENTIAL RISE OF THE GUARANTEE CLAUSE ........................... 1434 A. The Unfortunate Abandonment of the Guarantee Clause and the Switch in Baker ..................... 1434 B.
    [Show full text]
  • Federal Program Bribery, New Federalism, and the Missing Federal Interest
    LINCOLN MEMORIAL UNIVERSITY LAW REVIEW __________________________________ VOLUME 4 FALL 2016 ISSUE 1 _____________________________________ FEDERAL PROGRAM BRIBERY, NEW FEDERALISM, AND THE MISSING FEDERAL INTEREST Jacob Baggett1 I. INTRODUCTION In October of 1983, Donald V. Morano stood before the United States Supreme Court and argued his position in Dixson v. United States.2 In his thick New England accent, he argued that his clients, city officers responsible for the management and expenditure of federal funds, were not “public officials” within the definition of a federal bribery statute, 18 U.S.C. § 201, which prohibits offering something of value to a public official with the illicit intent of influencing an 1 Jacob Baggett, Juris Doctor (2015) and former Editor-in-Chief of the Lincoln Memorial University Law Review. The author would like to thank Assistant Professors Akram Faizer and Melanie Reid for their substantive knowledge, valuable criticism, and unwavering encouragement. 2 465 U.S. 482 (1984) (holding that executives of private, nonprofit corporation having operational responsibility for administration of federal housing grant program within city under terms of subgrant from city were “public officials” within meaning of federal bribery statute, and thus were subject to prosecution under statute). 112 4 LMU LAW REVIEW (2016) official act. If his clients were not public officials within the meaning of the statute, then they could not be convicted under the statute. At a superficial glance, a question of this nature would appear immaterial. The defendants were criminals who misappropriated funds for an amount of personal gain. Why care whether federal or state law pursued them? They were malefactors; they deserved punishment; (seemingly) end of story.
    [Show full text]
  • Supreme Court of the United States ______
    No. ______ In the Supreme Court of the United States ________________ ROBERT A. RUCHO, et al., Appellants, v. COMMON CAUSE, et al., Appellees. ________________ On Appeal from the United States District Court for the Middle District of North Carolina ________________ JURISDICTIONAL STATEMENT ________________ PHILLIP J. STRACH PAUL D. CLEMENT MICHAEL D. MCKNIGHT Counsel of Record OGLETREE, DEAKINS, ERIN E. MURPHY NASH, SMOAK & ANDREW C. LAWRENCE STEWART, P.C. KIRKLAND & ELLIS LLP 4208 Six Forks Road 655 Fifteenth Street, NW Suite 1100 Washington, DC 20005 Raleigh, NC 27609 (202) 879-5000 [email protected] Counsel for Appellants Robert A. Rucho, David R. Lewis, Timothy K. Moore, and Philip E. Berger October 1, 2018 QUESTIONS PRESENTED Earlier this year, while Gill v. Whitford was pending before this Court, a three-judge district court invalidated North Carolina’s 2016 congressional districting map as a partisan gerrymander. After Gill was handed down, this Court vacated that decision and remanded for further consideration in light of Gill. That period of reconsideration did not last long. In the decision below, the district court largely readopted its previous reasoning and became the first post-Gill court to divine a justiciable test—in fact, four tests—and invalidate a legislatively enacted map as a partisan gerrymander. Although plaintiffs here, like those in Gill, sought to vindicate only generalized partisan preferences, the court concluded they had standing. The court then found justiciable standards for partisan gerrymandering claims under the Equal Protection Clause, the First Amendment, and (uniquely in the history of redistricting litigation) the Elections Clauses of Article I.
    [Show full text]
  • The Constitutional Compromise to Guarantee Education
    Stanford Law Review Volume 70 March 2018 ARTICLE The Constitutional Compromise to Guarantee Education Derek W. Black* Abstract. Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity. New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory. This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education. Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause.
    [Show full text]
  • The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking
    THE DYNAMIC INCORPORATION OF FOREIGN LAW AND THE CONSTITUTIONAL REGULATION OF FEDERAL LAWMAKING PAUL J. LARKIN, JR.* INTRODUCTION ............................................................ 338 I. THE LACEY ACT AND THE INCORPORATION OF FOREIGN LAW .................................................. 347 II. THE FEDERAL LAWMAKING PROCESS .................. 354 A. The Vesting of Legislative Authority in Congress: The Article I Bicameralism and Presentment Clauses ............................. 354 B. The Delegation of Legislative Authority to the Executive Branch: The Article II Appointments Clause ................................... 358 1. “Static” vs. “Dynamic” Delegation ...... 359 2. Delegating Federal Lawmaking Authority to Federal Agencies .............. 361 a. The Conventional Theory ............... 361 b. Two Unconventional Theories ....... 366 c. The Common Denominator ............ 369 3. Delegating Federal Lawmaking Authority to State Officers ..................... 372 III. THE CONSTITUTIONAL ISSUES RAISED BY THE LACEY ACT’S DELEGATION OF FEDERAL LAWMAKING AUTHORITY .................... 377 A. Article I Problems With the Lacey Act ....... 379 * Senior Legal Research Fellow, The Heritage Foundation; M.P.P., George Wash- ington University, 2010; J.D., Stanford Law School, 1980; B.A., Washington & Lee University, 1977. This article is an expanded version of the author’s 2013 testimo- ny before Congress. See infra note 28. The views expressed in this Article are the author’s own and should not be construed as representing any official
    [Show full text]
  • State Courts and Republican Government Hans A
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Santa Clara University School of Law Santa Clara Law Review Volume 41 | Number 4 Article 2 1-1-2001 State Courts and Republican Government Hans A. Linde Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Hans A. Linde, Symposium, State Courts and Republican Government, 41 Santa Clara L. Rev. 951 (2001). Available at: http://digitalcommons.law.scu.edu/lawreview/vol41/iss4/2 This Symposium is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. STATE COURTS AND REPUBLICAN GOVERNMENT Hans A. Linde* I. THE CONSTITUTION'S CHARGE TO STATE JUDGES AND OFFICIALS Do California judges and officials have any obligation to maintain a republican form of government? And is this obligation relevant to California's initiative system? The answer is yes to both questions. The legal reasons, as a matter of constitutional text and history, are quite straightforward. Readiness to act on them is another matter. A. MaintainingRepublican Governance as the "Supreme Law of the Land" The Constitution assumes that each state enters the union with a republican form of government, and it directs the United States to guarantee that state governments remain republican. The 1787 Northwest Ordinance required it for new states, and it was axiomatic for the Philadelphia Convention.
    [Show full text]
  • The Fundamental Right to Education
    \\jciprod01\productn\N\NDL\94-3\NDL302.txt unknown Seq: 1 12-FEB-19 9:04 THE FUNDAMENTAL RIGHT TO EDUCATION Derek W. Black* New litigation has revived one of the most important questions of constitutional law: Is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so. To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our Constitution protects educa- tion, particularly since the word education does not even appear in the Constitution. Second, the right to education implicates complex questions regarding its scope. Those questions would require the Court to determine the quality of education the Constitution requires. Neither liti- gants nor scholars have seriously grappled with these problems, which explains why the Court has yet to recognize a right to education. This Article cures both problems. Not only is this Article the first to offer a compelling originalist argument for a fundamental right to education, it demonstrates that the right falls squarely within the Court’s existing prece- dent. It traces the fundamental importance of education from the nation’s founding principles through the years immediately following the Fourteenth Amendment. Most importantly, it details how, in the years surrounding the final ratification of the Fourteenth Amendment, Congress demanded that states guarantee access to public education in their state constitutions and linked these demands to the Fourteenth Amendment itself.
    [Show full text]
  • Case 2:17-Cv-04392-MMB Document 211 Filed 01/10/18 Page 1 of 73
    Case 2:17-cv-04392-MMB Document 211 Filed 01/10/18 Page 1 of 73 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LOUIS AGRE, et al. CIVIL ACTION v. NO. 17-4392 THOMAS W. WOLF, Governor of the Commonwealth of Pennsylvania, JONATHAN MARKS, Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation, ROBERT TORRES, Acting Secretary of the Commonwealth of Pennsylvania, JOSEPH B. SCARNATI, III, President Pro Tempore of the Pennsylvania Senate, and MICHAEL C. TURZAI, Speaker of the Pennsylvania House of Representatives, in their official capacities. BEFORE: Smith, Chief Circuit Judge; Shwartz, Circuit Judge; Baylson, District Judge. MEMORANDUM Smith, Chief Circuit Judge January 10, 2018 I. Introduction Plaintiffs seek a declaratory judgment that the Pennsylvania General Assembly exceeded its authority under the United States Constitution when it enacted a congressional redistricting plan that was intended to favor candidates from the Republican Party. Amended Complaint, ECF No. 88 at 1, 6, 11. Invoking 42 U.S.C. § 1983, Plaintiffs allege a direct violation of the “Elections Clause.” Id. at 2. The Elections Clause, Article 1, Section 4, Clause 1 of the Constitution, provides state legislatures with authority to prescribe “[t]he Times, Places and Manner of holding 1 Case 2:17-cv-04392-MMB Document 211 Filed 01/10/18 Page 2 of 73 Elections for Senators and Representatives.” U.S. Const. art. I, § 4, cl. 1.1 Under Plaintiffs’ theory, the Clause gives States very limited power: to promulgate procedural rules, and to do so in a neutral fashion. ECF No. 88 at 2.
    [Show full text]
  • No. 22O155 in the SUPREME COURT of the UNITED
    No. 22O155 IN THE SUPREME COURT OF THE UNITED STATES ______________________________________________________ STATE OF TEXAS, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, STATE OF GEORGIA, STATE OF MICHIGAN, AND STATE OF WISCONSIN, Defendants. ______________________________________________________ MOTION FOR LEAVE (1) TO FILE BRIEF OF LIEUTENANT GOVERNOR JANICE MCGEACHIN, SENATOR LORA REINBOLD, REPRESENTATIVE DAVID EASTMAN, ET AL (ELECTED STATE OFFICIALS) AS AMICI CURIAE IN SUPPORT OF PLAINTIFF, AND (2) TO DO SO IN AN UNBOUND FORMAT ON 81⁄2-BY-11-INCH PAPER, AND (3) TO DO SO WITHOUT TEN DAYS’ ADVANCE NOTICE TO THE PARTIES _________________________________________ RICHARD H. SEAMON NATHANIEL K. MACPHERSON* 106 East 3rd Street *Counsel of Record Moscow, ID 83843 The MacPherson Group, LLC Phone: (208) 310-1584 24654 N. Lake Pleasant Parkway [email protected] Suite 103-551 Peoria, AZ 85383-1359 DONALD W. MACPHERSON Phone: (623) 209-2003 The Macpherson Group, P.C. [email protected] 24654 N. Lake Pleasant Parkway Suite 103-551 BRADLEY SCOTT MACPHERSON Peoria, AZ 85383-1359 MacPherson Law, PLLC Phone: (623) 209-2003 24654 N. Lake Pleasant Parkway [email protected] Suite 103-551 Peoria, AZ 85383-1359 D. COLTON BOYLES Phone: (623) 209-2003 Boyles Law, PLLC [email protected] 217 Cedar Street, Suite 330 Sandpoint, ID 83864 Phone: (208) 304-6852 [email protected] Counsel for Amici Curiae Movants, who are elected and sitting Senators and Representatives of the State of Alaska, State of Arizona, and State of Idaho, and the sitting Lieutenant Governor of the State of Idaho, and who share a commitment to preserving (1) the constitutional promise of a republican form of government and (2) honest elections, respectfully request leave of the Court (1) to file the attached Amici Curiae brief in support of Plaintiff State of Texas, (2) to file the brief in an unbound format on 81⁄2- by-11-inch paper, and (3) to file the brief without ten days’ advance notice to the parties as ordinarily required by Sup.
    [Show full text]
  • Time for the Federal Courts to Enforce the Guarantee Clause? 65 U
    Ann Althouse, Time For the Federal Courts to Enforce the Guarantee Clause? 65 U. Colo. L. Rev. 881 (1994) TIME FOR THE FEDERAL COURTS TO ENFORCE THE GUARANTEE CLAUSE? A RESPONSE TO PROFESSOR CHEMERINSKY Ann Althouse* 65 U. Colo. L. Rev. 881 (1994)† Professor Chemerinsky wants us to see the Guarantee Clause as a protection for individual rights. This perspective accords with his position that the “preeminent … mission” of the federal courts is to enforce individual rights.1 His theory of the political question doctrine follows accordingly: a presumption of justiciability attaches to individual rights, rebuttable only when there is reason to believe that the judiciary is substantially less able than other branches of the federal government to interpret and enforce a constitutional provision.2 Thus, if the Guarantee Clause really does exist to protect individual rights, then, given no basis to rebut the presumption in favor of federal court enforcement, the political question doctrine should not apply. In syllogism form: federal courts should enforce individual rights; the Guarantee Clause embodies individual rights; therefore the federal courts should enforce the Guarantee Clause. Professor Chemerinsky must work hard to coax the Guarantee Clause out of the category of constitutional provisions relating to the structure of government and into the individual rights category, in order to harmonize judicial enforcement of the Clause with his view of the role of the federal courts. Yet he concedes that the distinction between rights and governmental
    [Show full text]