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#15248628
Vox wrote:The headline of this piece is likely to turn a few heads. The Supreme Court’s last term, after all, was an orgy of conservative excess unlike any since the Court’s Great Depression-era attacks on the New Deal. And it culminated in the demise of Roe v. Wade, arguably the most closely watched Supreme Court decision since the justices declared school segregation unconstitutional in 1954.

But this term, a potentially even more consequential issue than the right to an abortion is on the Court’s docket: democracy itself. A single case, Moore v. Harper, threatens to fundamentally rewrite the rules governing federal elections, potentially giving state legislatures (some of which are highly gerrymandered themselves) nearly limitless power to skew those elections.

https://www.vox.com/policy-and-politics ... lean-water


Wikipedia wrote:Under the ISL theory, a state legislature's plans for new congressional districts are not overridable by a state supreme court's interpretations of its state's own constitution, including any provisions limiting partisan gerrymandering found therein.


In 2015, ISL proponents said that Legislatures cannot delegate this authority (see the dissent in Arizona Redistricting Commission case (2015)). I think there’s a textualist argument to be made that finds that Redistricting Commission was constitutional, but I won’t get into it here. But ISL proponents were pretty clear that the Redistricting Commission was unconstitutional under the Elections Clause, and only the Arizona legislature had the authority to draw election districts.

Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject. So an elections bill which would normally be subject to the traditional constitutional procedures of a bill being 1.) enacted by both Houses of the Legislature, 2.) signed or veto by the Governor, and then 3.) subject to review by the courts is all thrown out the window.

ISL is a fundamental breakdown of the American system of checks and balances. Yet, it is in danger of being codified by this court. How can a State legislature occupy this weird limbo of being subject to its own constitutional restrictions in every aspect of civic life except when it comes to elections? The State legislature is only the legislature as duly authorized by its own constitution. If a Legislature, pursuant to ISL theory, takes some action that exceeds its constitutional restrictions, but the action is tangentially related to elections, how would we even begin to decide the proper membership of this extra-constitutional body? Because under ISL, we’ve decided that a Legislature is beyond the other traditional mandates of its own constitution when it comes to the Elections Clause, so how the state’s constitution outlines how it’s legislators are chosen could be discarded as well. Can we have a situation where we have competing Elections clause legislatures? How would we even adjudicate that?

If SCOTUS makes a maximalist ISL ruling next term, I’m not sure there would be anything that the federal government could do that would be consistent with ISL. At the very least, it would be a steep uphill battle. And then, if the feds were successful, that would scramble a lot of eggs- both politically and legally- given our long history of a decentralized election system. And, given all that, I’d be asking what are we trying to accomplish here?

And I guess I wouldn’t think the feds are ‘relying on state courts’ in this instance. This is just how every single state in the country works. Legislatures pass bills, executives sign or veto them, and the judiciary reviews them for constitutionality.

Worse, this whole constitutional can of worms is being put forward only by a dangerous minority party that sees an expiration date on their ability to govern in this country, as an attempt to short-circuit the democratic process.
#15248803
Fasces wrote:Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject.

This is only natural, for anyone who has any understanding of Constitutional matters.

The Left is so full of hypocrisy on this issue. They acted like the Supreme judiciary was so critical to the functioning of a healthy democracy, that is until the court made a ruling that they really didn't like, and then the sentiments completely changed and they wanted to "take down the court" and make it subservient to the legislature.

Going back to what was being discussed before, the issue is that someone ultimately has to be at the top of the pyramid overseeing the other government bodies, and it is only the most logical that the most appropriate body for that should be the legislature.

It's pretty much a lie that the "three branches of government" are the Executive, Legislative and Judicial. Rather the real three branches of government are the Executive and the two separate houses that compose the Legislative.

Yes, there are some real issues here, but I don't think you're going to ultimately be able to solve fundamental political issues by simply changing where the decision-making power is vested.
The whole point of the federal system in the U.S. Constitution was decentralisation of power. Yes, there could be corruption in state governments, but better that than allowing for the possibility of corruption to take hold in the federal level of government with nothing the states could legally do about it.
#15248907
Puffer Fish wrote:This is only natural, for anyone who has any understanding of Constitutional matters.

The Left is so full of hypocrisy on this issue. They acted like the Supreme judiciary was so critical to the functioning of a healthy democracy, that is until the court made a ruling that they really didn't like, and then the sentiments completely changed and they wanted to "take down the court" and make it subservient to the legislature.

Going back to what was being discussed before, the issue is that someone ultimately has to be at the top of the pyramid overseeing the other government bodies, and it is only the most logical that the most appropriate body for that should be the legislature.

It's pretty much a lie that the "three branches of government" are the Executive, Legislative and Judicial. Rather the real three branches of government are the Executive and the two separate houses that compose the Legislative.

Yes, there are some real issues here, but I don't think you're going to ultimately be able to solve fundamental political issues by simply changing where the decision-making power is vested.
The whole point of the federal system in the U.S. Constitution was decentralisation of power. Yes, there could be corruption in state governments, but better that than allowing for the possibility of corruption to take hold in the federal level of government with nothing the states could legally do about it.


PF, do you realize tat there are several USSC decisions that have ruled that the Constitution says that the state legislature includes the rest of the state gov.?

So, for this USSC to rule the opposite would be another example of it overturning "settled law".

Also, do you realize that very many state SC Justices signed an amicus brief in this case, that the USSC had better not change this settle law?

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Last edited by Steve_American on 29 Sep 2022 02:21, edited 1 time in total.
#15248913
"As I have argued at length and repeatedly (and probably repetitively), the theory simply doesn’t work for several fundamental reasons. As a textual matter, Article II (the presidential-election context where modern ISL theory was resuscitated in 2000 in Bush v. Gore and then again in 2020) doesn’t even say what ISL folks (carelessly) suggest it does; the clear text of Article II (“Each state shall appoint, in such Manner as the legislature thereof may direct [presidential electors] . . . .”) empowers “states,” not state “legislatures,” and with respect to state “legislatures” says only that they “may”—not that they “must” or that they “shall”—be involved in setting presidential selection rules. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the state constitution that creates, defines and limits it. Precisely who comprises the legislature for each particular purpose, what processes the legislature must use, and what substantive lines the legislature may not cross are all questions that can be answered only by looking at and heeding the state constitutions, whose supremacy over elected state officials the framers well understood, and in fact codified in the Supremacy Clause of the U.S. Constitution. It is no wonder, then, that historical practice by states, directly preceding and directly after the adoption of Articles I and II, is repeatedly and sharply inconsistent with ISL notions insofar as state constitutions, both before and right after 1787, did purport to regulate elected legislatures even (and sometimes specifically) in the realm of federal elections.

The statutory enactments of state legislatures themselves over the course of American electoral history also undermines ISL arguments, as does unbroken Court precedent from the early 1900s through the last decade. (For more on all this, interested readers can scour a law review article I co-authored with Akhil Amar that is viewable here and slated to be published any day now.)

All of these arguments, separately and together, are compelling. But when something is as wrong as ISL is, the more you examine it, the more you see additional evidence of its wrongness. In the space below, I lay out another, heretofore unexamined, way in which ISL theory makes jejune and unsupportable assumptions about the meaning of constitutional text."

More at the link:

https://verdict.justia.com/2022/06/30/y ... t-congress
#15248940
Steve_American wrote:PF, do you realize tat there are several USSC decisions that have ruled that the Constitution says that the state legislature includes the rest of the state gov.?

That is a little bit of a Constitutional grey area, defining precisely which body constitutes the state government.

As far as I know, it's never actually become an issue before. Although it could be if a state suffered its own Constitutional crisis that it could not resolve, and it had some sort of big implication on the federal government. Usually if a state passes a law, or a statement with the same sort of majority that is needed to pass a law, that is considered to be the state speaking. (But that can cause all sorts of problems when state laws confusingly delegate powers to specific officials)
#15249001
Puffer Fish wrote:That is a little bit of a Constitutional grey area, defining precisely which body constitutes the state government.

As far as I know, it's never actually become an issue before. Although it could be if a state suffered its own Constitutional crisis that it could not resolve, and it had some sort of big implication on the federal government. Usually if a state passes a law, or a statement with the same sort of majority that is needed to pass a law, that is considered to be the state speaking. (But that can cause all sorts of problems when state laws confusingly delegate powers to specific officials)


PF, OK, you have zero knowledge either way. I OTOH, recently saw a claim by a person that I respect a great deal, that there are several such cases. Also, late baove provide text that said exactly that with a link.

PF, I came back to say this.
The Constitution say in "Article 3, Section 2
1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

There it says, "as the Congress shall make." In some other places it said 'Congress, by law, '; here it just says "Congress shall make". Do you think that the President can veto a law or other action of Congress that might say that the USSC may not declare that the Privacy Right that has been ruled by earlier USSC decisions to be one of the unenumerated rights in the 9th Amendment that is reserved to the people does not exist as it pertains to abortions, sex acts, contraception, and interracial marriage? Do you think tat the USSC could delare such a law as that to be unconstitutional? Why?

If not, why not? How is this different from the place where the Constitution referred to sates by their legislature may regulate Federal elections? Why does this wording overrule the state constitutions, that existed before the Constitution was written?

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