North Dakota has a constitutional rule that requires a supermajority of its state courts to invalidate a statute, on both state and federal constitutional claims. So a decision with 3 votes to invalidate a law under the federal constitution is not sufficient–you need 4. Will Baude questions whether such a rule is permissible in light of due process and doctrinal preemption. I pose a related question, in light of my work on State Judicial Sovereignty.
Say Congress wasn’t happy with decisions like North Dakota, which it considers frustrating the supreme law of the land, and passes a law that only a majority vote is needed in all state courts to invalidate a law based on a federal constitutional claim. Would that law be constitutional? (I’ll assume for the moment that there is no independent reason why the North Dakota statute, on its face, is unconstitutional.)
There are a few layers to this question. First, would Congress have the enumerated powers to enact such a law. In the case of ensuring that state courts do not frustrate federal constitutional rights, Section 5 of the 14th Amendment, coupled with the Necessary and Proper Power, would probably be the strongest basis for such a law. It’s unclear if it would meet the “Congruence and Proportionality” standard from Boerne v. Flores, but I’ll assume for the moment that it does.
Second, would such a decision intrude upon what I’ve called “state jurisdictional sovereignty,” which entails the the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution? Historically, Congress has taken virtually no action to control how the state courts are structured. One of the primary outliers are mandatory jurisdiction statutes, which force the state courts with competent jurisdiction to hear federal claims. These are almost certainly constitutional. But the law I proposed in this post would do something different. Rather than force state courts of competent jurisdiction to entertain federal causes of action, this law would provide a rule of decision that impacts state jurisdictional law. Even if such an approach may be necessary to protect federal rights, it is unclear if it is proper, under NFIB, as it intrudes on an area of law long reserved to state autonomy–design of the state courts.
Third, would this law impose on what I’ve called “state judge sovereignty,” which places a limit on the federal government’s power to regulate the state courts, based on the anti-commandeering principle. Even though federal judges are bound by the supremacy clause, the state legislators who vest their courts with jurisdiction, and rules such as the North Dakota rule, are not. This law would directly impact the ability of the legislators–or in the case of a constitutional referendum, the people themselves–to manage their own courts. It would also force judge sto comply with the federal rule, over the state rule. I suppose a related question, was whether Congress could pass a law that requires state legislatures enact laws only by a super-majority. Granted, the issue of invalidating a law under the federal constitution is different from enacting state laws under the police power, but the commandeering aspect of the law remains. Here, the Congress is telling the state legislators how to do their jobs of governing. This seems to be a distinctly local function, that unless they are violating the constitution, is beyond the purview of federal authority.
I don’t think such a law would be valid. (By the way, if you are screaming at me that the state jurisdictional statutes are preempted, please read my article where I argue that jurisdictional statutes, unlike other state laws, are different, and cannot be preempted in the same manner due to the sovereignty of the states to design their own judicial system).