Taking the initiative

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)