[EL] Rohrabacher-Lowenthal bill

[Justin Levitt]

There are two ways to construe Clement's argument below.  One is an 
assertion that Congress does not have the authority under the Elections 
Clause to choose a state _decisionmaker_ different from the state 
legislature -- that is, an assertion that Congress may have the power to 
draw lines itself, but that it cannot delegate that authority to 
others.  Another is an assertion that Congress does not have the 
authority under the Elections Clause to choose substantive state 
boundaries different from those the state legislature would prefer.

I think both propositions are questionable (and difficult to derive from 
the text of the Clause itself).  But the second construction -- Congress 
has no power to set the location of the lines -- seems far more 
aggressive.  And it would take the second construction to jeopardize the 
validity of the bill that Dan circulated, no?  If, rather than say that 
each state shall "retain" the lines in place, the bill were to lay out 
metes and bounds for each specific district precisely mirroring the 
districts currently in place, it would rest on the same power.  And _if_ 
the court comes down against the AZ map based on process but not on 
substance, I don't see a tenable legal distinction between a 
Congressional bill laying out metes and bounds that happen to coincide 
with the current districts, and a bill drawing districts from scratch.

Justin

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 5/22/2015 9:13 AM, Marty Lederman wrote:
> If the Court declares the AZ map invalid (which is by no means a sure 
> bet), and if Congress were to enact this law, it would almost 
> certainly be challenged on constitutional grounds.  In his briefs and 
> argument to the Court, Paul Clement argued that "[w]hatever power 
> Congress has under the second subclause of the Elections Clause, it 
> does not include the authority to
> override the first subclause. . . .  [A federal] law authorizing 
> States to deprive state legislatures of their 
> constitutionally-conferred role in prescribing
> regulations for congressional elections and redelegate that authority 
> elsewhere would be [a] palpable violation of the Constitution."
>
> I tend to think the question of limits on Congress's "second 
> subclause" power is not nearly as clear-cut as Paul suggests; but I 
> think it's fair to say that if the Court rules against the AZ law, 
> this legislation /might/ preserve the Commission's districting map . . 
> . or it might not.  (Of course the Court itself might say something in 
> its opinion to clarify the scope of Congress's power that could 
> greatly affect the analysis and point either in favor or against 
> Congress's authority to, in effect, ratify and instantiate otherwise 
> unconstitutional commission-drawn maps.)
>
> Thoughts?
>
> On Fri, May 22, 2015 at 11:49 AM, Dan Vicuna <DVicuna at commoncause.org 
> <mailto:DVicuna at commoncause.org>> wrote:
>
>     Hello everybody,
>
>     The Rohrabacher-Lowenthal bill defending Congressional maps drawn
>     by independent commissions is attached.
>
>     Dan
>
>     Dan Vicuna
>
>     National Redistricting Coordinator
>
>     Common Cause
>
>     Phone: (213) 623-1216 <tel:%28213%29%20623-1216>
>
>     Twitter: @DanVicuna <https://twitter.com/danvicuna>
>
>     www.commoncause.org/redistricting
>     <http://www.commoncause.org/redistricting>
>
>
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