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Taking the initiative

Submitted by Simon on Tue, 10/28/2008 - 9:33pm

Rick Hasen asks: Is a 2004 amendment to Alaska's law on Governors appointing replacement Senators void?

The Seventeenth Amendment provides that when a vacancy occurs in the Senate, "the legislature ... may empower the [Governor] ... to make temporary appointments until the people fill the vacancies by election as the legislature may direct." In 2004, Alaska's legislature passed a law so empowering the Governor, but a subsequent ballot initiative purported to withold that authority. If Sen. Stevens resigns, does Gov. Palin have authority to appoint a replacement per the statute, or not, by force of the more recent initiative?

She does, for reasons I explained a year ago. When the federal Constitution commits a power to the legislature of a state, I argued, it vests a power in the state's legislature, rather than comandeering the state's power to make internal law. This analysis has two major consequences. It means that a Governor cannot veto action of the legislature when the latter acts pursuant to an exclusive grant of power in the federal Constitution, even if the state's constitution grants the governor a veto power. And it means that an initiative, referendum or ballot initiative can't carry out functions vested in state legislatures by the federal Constitution, even if state law says otherwise. Any other conclusion would detract from the Supremacy Clause.

Thus, the initiative is void to the extent it seeks to exercise any authority vested in the state legislature, and the statute stands as the most recent intra vires exercise of the state's authority.

HT: Volokh Conspirator Jonathan Adler

Post facto:
I don't know why you say hello... (11/9/08)

Not to rehash, but are you basically arguing that the federal

Constitution grants this power only to the states, and no ballot initiative, or referendum can take that away, and the state legislature cannot even give the power away? Makes sense to me.

"In the world you will find tribulation, but be of good cheer, for I have overcome the world."

John 16:33

I'm arguing that it's given

I'm arguing that it's given expressly and exclusively to the state legislatures, rather than to the states generically to assign as they will.

So, yes and no, depending on whether I'm just quibbling over how you worded your comment. ;)

"When someone says their heart needs lifting, don't ask how come, ask how high."

Aren't most ballot

Aren't most ballot initiatives advisory in nature? Even if passed by the required majority, doesn't the Legislature then actually have to pass a law that fulfills the ballot initiative?

I suppose it depends on how

I suppose it depends on how each state has initiatives set up. In a scenario as you mention, I suppose that as long as the redistribution is done by the legislature itself, there isn't a problem.

"When someone says their heart needs lifting, don't ask how come, ask how high."

I believe "Depends on the

I believe "Depends on the state" is absolutely correct. Some states have a constitutional initiative/referendum procedure that dictates the legislature perform the required action. I recall that being an issue in the Colorado referendum to make the state cast its electoral votes for the national pop-vote winner, when it's entirely up to the legislature to determine how to cast their electoral votes.

The ref didn't pass, so no rulings there, but the legislature indicated it WOULD fight that on constitutional grounds.

Right. I can imagine some

Right. I can imagine some closer cases where the line's quite jumbled. In Alaska, however, Article 11 the Constitution and Chapter 45 of the state code make it entirely clear that the initative is an alternative means by which the people can directly enact statutes, bypassing the legislature almost entirely. "The people may propose and enact laws by the initiative ... [and i]f a majority of the votes cast on the proposition favor its adoption, the initiated measure is enacted." Art. 11 ?? 1, 6. Although AS 15.45.010 says that "[t]he law-making powers assigned to the legislature may be exercised by the people through the initiative," this must be read to refer only to the powers granted to the legislature in the Alaska Constitution, per my post last year.

Alaska also appears to provide for a referendum veto over legislative enactments; that probably falls by the wayside under the same analysis. It'd be a different and interesting case if you had an initiative process that compelled the legislature to do something generally or to enact a specific provision.

"When someone says their heart needs lifting, don't ask how come, ask how high."

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