In this essay, I’ll try to lay out the facts about the independent legislature doctrine as objectively as I can. Before going further, though, let’s see how the doctrine works in practice, using two related illustrations.
Illustration No. 1: You live in a state with a Republican legislature and a Democratic governor. Your state constitution says the governor may sign or veto bills. May the legislature, acting without the governor’s approval, draw boundaries for the state’s congressional districts?
The answer to this question currently is “no.” The legislature is not “independent” because its rules for congressional elections must be signed by the governor. Moreover, the legislature may be overridden by citizen ballot measures if the state constitution so provides.
Illustration No. 2: You live in the same state. May the legislature, acting without the governor’s approval, decide on a procedure for choosing presidential electors?
The answer to that question is “yes.” The legislature may act independently of the governor, and generally of the state constitution and laws, although it's still subject to federal law.
A Problem of InterpretationThe Constitution assigns many powers and tasks to the federal legislature (Congress) and to state legislatures. The Constitution also assigns tasks to state governors, to courts, to the Electoral College, and to conventions. The courts refer to the exercise of these tasks as “federal functions.” (pdf)
When the Constitution delegates a federal function to Congress, the word “Congress” can have either of two meanings: (1) the entire lawmaking apparatus, including passage by the Senate and House of Representatives and signature by the president, or (2) Congress acting independently, without the president.
Similarly, when the Constitution delegates a federal function to a state “Legislature,” that word can have either of two meanings: (1) the entire state lawmaking apparatus, including the legislative assembly, the governor, and any state procedure for citizen ballot issues, or (2) the legislative assembly acting independently.
Often, the Constitution specifies that a function must be carried out “by Law.” This tells us that the legislature doesn't act independently, but only as part of the larger lawmaking apparatus. However, the Constitution isn't always so clear. To get the meaning, you have to study the text and the surrounding history.
The Constitution assigns many other “federal functions” to state legislatures. Sometimes the function is assigned to the legislature acting independently and sometimes to the entire state legislative apparatus. Let’s consider two examples.
The first is Article I, Section 8, Clause 17. It gives power to Congress to create federal enclaves lying within state boundaries, but governed by federal law. To create an enclave, it must be “purchased by the Consent of the Legislature of the State in which the Same shall be ...”
Must the state “Consent” via the entire procedure for passing a law? Or is a simple legislative resolution sufficient?
The United States ... shall protect each [state] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.Unlike a cession of territory, a request for help is a time-limited event. Also, notice how this clause distinguishes between “the Legislature” and the “Executive.” These two factors imply that a state legislature can call on the United States for assistance independently of the governor.
State Legislatures and Federal ElectionsNow we come to the state legislatures’ powers over federal elections—the topic that has incited academics and the media. As originally written, the Constitution gave each state “Legislature” three powers over federal elections. They are:
- Electing the state’s U.S. senators (Article I, Section 3, Clause 1) (since superseded);
- fixing the “Manner” of choosing the state’s presidential electors (Article II, Section 1, Clause 2); and
- fixing the “Times, Places and Manner of holding Elections for Senators and Representatives,” except that “the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators” (Article I, Section 4, Clause 1).
The first topic, senatorial elections, is easy. Before the 17th Amendment transferred the election of senators to the people, it was understood universally that the legislature chose senators on its own. There was no role for the governor or anyone else. The legislature was “independent.”
Regulating Congressional ElectionsThe Supreme Court considered this issue in 2015. It ruled that the power to regulate congressional elections belonged to the state’s legislative apparatus as a whole—not just to the legislature (pdf). However, the vote was only 5–4, with Chief Justice John Roberts writing a strong dissent. Two of the five-member majority are no longer on the court, and a third, Justice Stephen Breyer, is about to leave.
What Are the Merits?Was the Supreme Court correct in 2015? Or is the North Carolina legislature correct now? Frankly, I’m not sure.
Detailed, objective scholarship on this precise subject has never been performed. The understanding of the Constitution’s ratifiers likely rests in the election practices of the time. Complicating the search for an answer is that state constitutions were different then: Most didn't allow governors to veto bills and there was no statewide lawmaking through ballot measures.
My impression is that during the years before the Constitution was written, the British Parliament, the American colonies, and the American states regulated popular legislative elections through standing election laws rather than through ad hoc resolutions. For example, when the South Carolina legislature established rules for the first congressional elections in 1788, it did so by an ordinary law. This suggests the Supreme Court was correct to say that legislatures must regulate congressional elections by law, not by independent resolutions.
On the other hand, the Massachusetts legislature laid down the rules for early federal elections one election at a time—that is, by resolutions. Notably, also, the Constitution requires Congress to regulate congressional elections “by Law,” but it doesn't impose a similar mandate on state legislatures.
We need more high-quality research on the question. It should come from qualified scholars without political axes to grind.