[EL] Rohrabacher-Lowenthal bill

[Marty Lederman]

I strongly concur with Sam's second point about congressional assimilation
of Commission maps as distinguished from delegating the authority to the
Commission--an especially salient distinction where, as here, the maps that
Congress would be ratifying are already drawn (i.e., it's not a prospective
"assimilation").  Cf. Sharpnack

On Fri, May 22, 2015 at 12:22 PM, Samuel Bagenstos <sbagen at gmail.com> wrote:

> 1.  I'm not sure Paul is right about that (though I could easily see the
> Court agreeing with him).
>
> 2.  Even if he is, one could draw a distinction between Congress
> delegating districting authority away from the legislature and Congress
> deciding to adopt a districting plan first generated by someone else.
>
> 3.  The "might . . .  but might not" therefore seems right.
>
> On Fri, May 22, 2015 at 12:13 PM, Marty Lederman <lederman.marty at gmail.com
> > 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>
>> 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
>>>
>>> Twitter: @DanVicuna <https://twitter.com/danvicuna>
>>>
>>> www.commoncause.org/redistricting
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
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>>>
>>
>>
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>
>
>
> --
> Samuel Bagenstos
> sbagen at gmail.com
> Twitter: @sbagen
> My University of Michigan homepage:
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>
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