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George Will: Two reading lessons from the Supreme Court

March 3, 2015

Originally published in the Washington Post by George Will

On Wednesday, the justices will consider this: Did Congress mean what it said when, with patently coercive intent, it stipulated in the Affordable Care Act that subsidies for persons compelled to purchase health insurance can be disbursed only through exchanges “established by the state”? If so, billions have been illegally disbursed through federal exchanges in the 34 states that resisted the ACA’s pressure to establish exchanges.

On Monday, however, the court will consider whether the Constitution’s Framers meant what they said when, in the election clause, they assigned an important function to each state’s “legislature.” This clause says: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

Arizona’s Independent Redistricting Commission(IRC) supposedly is a better idea. It was created by a state constitutional amendment passed by voter initiative. The commission is composed of five members. Four are chosen by the majority and minority leaders of the two parties in the two legislative chambers — but these leaders must pick from a list of just 25 (of the 4.9 million Arizonans of voting age) selected by another state commission, one for appellate court appointments. No member of the legislature may serve on the IRC. It draws congressional district maps that are not subject even to such checks as a gubernatorial veto or referendum. The legislature’s role is reduced to submitting nonbinding recommendations to the IRC — “a function without consequence,” as the legislature says in its brief to the court.

The question is whether this process, which reduces the Arizona legislature’s role to the vanishing point, complies with the Constitution’s mandate that the “manner” of elections shall be “prescribed” by the state’s legislature. The Supreme Court’s elections clause jurisprudence permits limited checks on the legislature’s redistricting prerogative, such as a governor’s veto. It has, however, never authorized a state to divest its legislature of all meaningful power to prescribe district lines.

Clearly the clause restricts states’ abilities to do what the IRC does — nullify the Arizona legislature’s primacy in the redistricting process. The “I” in the IRC denotes independence from the legislature.

To the suit brought by Arizona’s legislature, the IRC’s limp response is that the elections clause uses “legislature” to denote any process, such as a referendum, that creates any entity, such as the IRC, that produces binding edicts. Surely, however, in writing the elections clause the Framers used the word “legislature” as it was and still is generally understood, to mean the representative body that makes a state’s laws. Arizona cannot strip its legislature of a power that flows to it from the U.S. Constitution.

Were it not for an unfortunate 19th-century decision, the court could rule that Arizona’s redistricting arrangement also violates the guarantee clause,which says “the United States shall guarantee to every state in the Union a republican form of government.” To the Framers, who were economical and precise with words, this clause had clear content. They believed that in a republic, the involvement of the people in governance is indirect and mediated but real. The essence of republicanism is the principle of representation: The people do not decide questions, they decide who will decide — their elected representatives, such as state legislatures.

In 1849, however, the court held that the meaning of the guarantee clause is non-justiciable. That is, its meaning is a “political question” to be determined by Congress rather than courts. But Clint Bolick of Arizona’s Goldwater Institute says that here “non-justiciable” means that the clause “is written in disappearing ink.” So, the guarantee clause is less a guarantee than a suggestion.

This is another example of what is lost when judicial modesty becomes dereliction of the judicial duty to judge. It is, Bolick says, arguable that the guarantee clause is inapplicable in the Arizona case because the clause is “an affirmative obligation on the national government rather than a restriction on the states. But because of the judicial abdication 166 years ago, we never get that far in the argument.”

So the Arizona case is another legal log fueling the crackling fire of the conservative argument for a vigorously engaged rather than passive judiciary. Which is another reason not to wait until Wednesday to watch the court.

George F. Will writes a twice-weekly column on politics and domestic and foreign affairs. He began his column with The Post in 1974, and he received the Pulitzer Prize for Commentary in 1977. He is also a contributor to FOX News’ daytime and primetime programming.



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