Again in August 2023, I wrote a few potential Seventeenth Modification battle in Kentucky. Underneath Kentucky legislation, within the occasion of a Senate emptiness, the Governor might solely appoint a short lived Senator of the identical political get together as the previous Senator. The Kentucky Legislature has a Republican super-majority with a Democratic Governor. And the Governor indicated that he thought this constraint on his powers to nominate a Senator violated the Seventeenth Modification. Vikram Amar urged there have been certainly issues. As historical past performed out, Senator Mitch McConnell of Kentucky stays in workplace, so this situation was by no means examined.
Nevertheless, the Kentucky legislature took one other, much more potent step: it stripped the Governor of the facility to nominate any momentary Senator. The Seventeenth Modification doesn’t require the Governor to even have this energy. It supplies, partially:
When vacancies occur within the illustration of any State within the Senate, the manager authority of such State shall situation writs of election to fill such vacancies: Offered, That the legislature of any State might empower the manager thereof to make momentary appointments till the individuals fill the vacancies by election because the legislature might direct.
Could, not should. I see no constitutional issues with the textual content of Home Invoice 622, which repealed KRS 63.200. However, maybe unsurprisingly, the Governor vetoed HB 622. He wished to maintain the identical momentary appointment energy that his predecessors had. In the end, the legislature overrode the veto, so HB 622 grew to become legislation.
This kind of politics isn’t new. Think about the flip-flop by the Massachusetts legislature. In 2004, Senator John Kerry was working for President, and there was a Republican Governor, Mitt Romney. The Democratic legislature stripped the Governor’s energy to make a short lived appointment, lest Mitt Romney quickly appoint a Republican Senator. 5 years later, in 2009, Senator Ted Kennedy was fairly ailing, and there was a Democratic Governor. The Democratic legislature restored the Governor’s energy to make a short lived appointment. That manner, a short lived appointment would preserve the Democrats’ 60-vote bloc within the Senate, and help the Inexpensive Care Act. (I wrote about this historical past in Unprecedented.)
For a second, contemplate a counterfactual. If the Kentucky legislature didn’t override the Governor’s veto, would the veto have been efficient? You might say, after all a Governor’s veto could be efficient. However not so quick. If the Structure assigns a perform to the “legislature of any state,” does the Governor have any position in that course of? Or does the “legislature of any State” really confer with the whole equipment of the state authorities, together with the manager’s veto energy, and maybe judicial overview by the courts? This latter argument would sound within the anti-ISL concept from Moore v. Harper.
There are some textual variations between the Seventeenth Modification and the Elections Clause. The Elections Clause supplies, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Moore Court docket noticed that this clause particularly refers back to the broader lawmaking course of below the Structure, which would come with the manager and judicial branches. Legal guidelines which can be prescribed by the state are handed by the legislature, authorized by the governor, and reviewed by the courts for conformity with the state structure.
In contrast, the second paragraph of the Seventeenth Modification refers to 2 particular actors: “the executive authority of such State” and “legislature of any State.” This textual content appears to differentiate between the separate branches of state governments. If the legislature provides the Governor the facility to fill these vacancies, the Governor can fill these vacancies. (I don’t suppose the Governor is required to make a short lived appointment, however he “shall issue writs of election.”) However the Governor lacks that energy if the Legislature withholds it. The Moore v. Harper argument doesn’t naturally graft onto this textual content. Likewise, the choice to “empower” or disempower the manager belongs to the “legislature.” Would it not flout the Seventeenth Modification if the Governor might prohibit the legislature from disempowering the Governor by means of a veto? And question whether or not the repeal invoice would even be topic to judicial overview?
There may be additionally a associated line of circumstances about whether or not the President should signal a constitutional modification. Seth Barrett Tillman wrote about it right here. And Mike Rappaport provided some ideas about when governors need to signal constitutional amendments.
Furthermore, it’s helpful to check the Seventeenth Modification with the predecessor provision in Article I, Part 3, Clause 2:
if [Senate] Vacancies occur by Resignation, or in any other case, in the course of the Recess of the Legislature of any State, the Govt thereof might make momentary Appointments till the following Assembly of the Legislature, which shall then fill such Vacancies.
This textual content expressly granted the Governor the facility to make momentary appointments, and that energy couldn’t be taken away by the legislature. In contrast, the Seventeenth Modification took away absolutely the momentary appointment energy from the Governor, and allowed the state legislature to make the choice. This shift is sensible, since within the regular course the pre-Seventeenth Modification legislature would select senators; the governor performed no formal position in that course of. The Seventeenth Modification a minimum of preserved some position for the legislature to play within the occasion of a short lived emptiness.
Lastly, if we’re being originalists, we must always look to the that means of “legislature” in the course of the Progressive Period, fairly than in 1787.
Then once more, I believe there must be a cautious examine of apply. For instance, have been the appointments of Senators by state legislature previous to the Seventeenth Modification offered to Governors? Did the state courts play any position in reviewing these appointments? This can be a query that winds up within the building zone.
I have no idea if the Governor’s veto of the invoice would have been efficient. Because the legislature overrode it, there isn’t a want to check the difficulty.
I thank Professors Rob Natelson, Seth Barrett Tillman, and Mike Rappaport, for serving to me suppose by means of a few of these enjoyable points.
