CJ Roberts: “State” Means “Federal,” But “the Legislature” Can’t Mean “The People.”

June 29th, 2015

A little King v. Burwell fun with Chief Justice Roberts’s dissent in Arizona State Legislature:

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment re- sulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner ap- proval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

Rick Hasen adds at Slate:

Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
But while Roberts was willing to be less than literal in the Obamacare case in order to further the obvious purposes of the statute, he was not so flexible in the Arizona case. At issue in Arizona was whether Arizona voters could take away the power to draw congressional districts from the self-interested and partisan Arizona Legislature and put it in the hands of an independent redistricting commission. The Constitution’s Elections Clause vests in each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override. In some earlier cases, the Supreme Court had rejected narrow readings of the word legislature, for example by letting the people use a referendum to review congressional redistricting plans from a legislature. Roberts said today that cutting the legislature out entirely violated the Constitution. “What chumps!” he declared sarcastically of those who believed the word legislature should be interpreted literally.