[EL] Allison Hayward has issues.

[Barnaby Zall]

It's a good point, but not necessarily dispositive of what Commissioner Hayward should be doing.


Try telling Sally Yates that "constitutional issues are not your problem." https://thinkprogress.org/trump-becomes-first-president-since-nixon-to-fire-an-attorney-general-5b5439d2ef25  Yes, President Trump had the constitutional power to fire her for not doing her duty, but did Yates have the power to ask someone whether what she was doing was constitutional? Whatever your views on the first travel ban and the subsequent judicial orders, Yates' analysis was upheld by the courts. (Although, considering that particular case, I will point out that the 9th Circuit's analysis under the three-step analysis of the sources of Presidential power from Jackson's concurrence in Youngstown Steel finding conflicting provisions in the INA governing the issuance of visa vs. the President's port manteau powers under 8 USC 1182(f) was very similar to these questions Hayward is raising. When is a branch of government's authority at its maximum or minimum, and what does a reviewing court look to for guidance? See Justice Jackson's concurrence, which has mostly become the controlling guidance.) 


I believe that Commissioner Hayward's request for input was not to try to perform some unconstitutional act, but to try to gather information to evaluate how the FPPC performs its duty as a whole. She could, for example, raise the issue whenever one of these fines comes before the FPPC. 


As one who has been involved in more than 300 ballot initiatives, I am troubled whenever the Legislature enacts an "exception" to a ballot initiative, especially when the Calif. Constitution provides other alternatives. I don't suggest that, having found what appears to be a "troubling" (your term) problem, Hayward leave the FPPC as Yates did the USDoJ, but I do think it's valuable that Hayward is at least questioning the Legislature's actions rather than "going with the flow." Because, assuming, as in California, power of the power through the ballot initiative is not mentioned in Jackson's Youngstown concurrence, the principle of the legislative power in this case surely seems like it comes within the third step (any constitutional power of the legislature is limited, rather than bolstered, by other limits of other branches of government). 


These are great questions that should be fundamental to any agency's thinking. 


Barnaby Zall 
Law Office of Barnaby Zall
685 Spring St. #314
Friday Harbor, WA 98250
360-378-6600



-----Original Message-----
From: David A. Holtzman <David at HoltzmanLaw.com>
To: Allison Hayward <ahayward at fppc.ca.gov>; Election Law Listserv <law-election at uci.edu>
Sent: Mon, May 1, 2017 12:27 pm
Subject: Re: [EL] Allison Hayward has issues.


    
            
        Well, your issues are troubling, very troubling.  
        
        Your staff appears to be wrong about the statutory issue.
        
        But at this point, the constitutional issues are not your        problem.         
        You may have taken an oath to uphold the Constitution, but the        Constitution        says you can’t decide what it means to uphold the Constitution.  
        
        
        Here is Section 3.5 of Article III of the California        Constitution:
        
        SEC. 3.5.  
        An administrative agency, including an administrative agency        created by the        Constitution or an initiative statute, has no power:
        (a) To declare a statute unenforceable, or refuse to enforce a        statute, on the        basis of it being unconstitutional unless an appellate court has        made a        determination that such statute is unconstitutional;
        (b) To declare a statute unconstitutional;
        (c) To declare a statute unenforceable, or to refuse to enforce        a statute on        the basis that federal law or federal regulations prohibit the        enforcement of        such statute unless an appellate court has made a determination        that the        enforcement of such statute is prohibited by federal law or        federal        regulations.
        (Sec. 3.5 added June 6, 1978, by Prop. 5. Res.Ch. 48, 1977.)
        
        
        Litigation might resolve the issues.
        But litigants might settle before they reach an appeals court.
        Over and over?
        Who knows?
        
          - dah                                                      
      




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