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Coleman v. Miller and the Political Question Doctrine

Following on my last post, our analysis of the justiciability of claims related to the Article V convention will begin with Coleman v. Miller, 307 U.S. 433 (1939) and the political question doctrine. Coleman involved the purported ratification by the Kansas legislature of a child labor constitutional amendment proposed by Congress in 1924. After both houses of the Kansas legislature had rejected the proposed amendment in 1925, the Kansas house passed a resolution of ratification in 1937. The Kansas senate then equally divided (20-20) on the resolution, and the Lieutenant Governor, over the objections of those who opposed the amendment, broke the tie in favor of ratification.

Kansas legislators, including the 20 senators who voted against ratification, challenged this action in state court, and the case was ultimately appealed to the U.S. Supreme Court. The plaintiffs advanced three grounds for invalidating the purported ratification: (1) that the 13 years between proposal and ratification was too long; (2) that the prior rejection of the amendment by the Kansas legislature precluded subsequent ratification and (3) that the Lieutenant Governor was not part of the “legislature” under Article V and therefore could not vote on ratification.

In a famously splintered opinion, the Coleman Court declined to reach the merits of any of these issues. In an opinion by Chief Justice Hughes designated as the “Opinion of the Court” (but joined by only two other justices), the Court held the Kansas legislators had standing to bring the suit, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress.

With respect to the whether the Kansas legislature’s previous rejection of the child labor amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.” 307 U.S. at 450. The Court found no basis for the proposition that it “should restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments.” Id.

Although the Supreme Court had previously held that ratification of amendments must take place within a reasonable time, the Coleman Court rejected the notion that “in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had.” 307 U.S. at 452. Determining what constitutes a reasonable time for ratification in any particular case would require “an appraisal of a great variety of relevant conditions, political, social, and economic,” which according to Chief Justice Hughes would involve questions that are “essentially political, and not justiciable.” Id. at 453-54.

With regard to the issue of the Lieutenant Governor’s participation in the ratification process, the Coleman Court declared: “Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided, and therefore the Court expresses no opinion upon that point.” Id. at 447. (If you wonder how a 9-member Court came to be “equally divided,” the answer, though not relevant to our analysis, may be found here)

In his concurrence (joined by Justices Frankfurter, Roberts and Douglas), Justice Black suggested that the Court had not gone far enough in denying judicial power to resolve Article V controversies. While agreeing with the Court that Congress has the “exclusive power” to resolve “political questions” such the validity of ratification after prior rejection and the length of time within which an amendment could be ratified, Black criticized the Court for leaving an opening for any judicial resolution of Article V questions. See Coleman, 307 U.S. at 458 (“To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial determination of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.”). Instead, Black stressed that all Article V questions should be considered political and not justiciable:

Such a division between the political and judicial branches of the government is made by Article V, which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress.  The process itself is “political” in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point.

Coleman, 307 U.S. at 458-59 (Black, J., concurring).

Two additional opinions were written in Coleman. Justice Frankfurter wrote for himself and Justices Black, Roberts and Douglas in a separate opinion rejecting the Court’s conclusion that the Kansas legislators had standing to sue. See Coleman, 307 U.S. at 460 (Frankfurter, J., concurring). Frankfurter argued that the injury asserted by the plaintiffs, namely that the Kansas legislature had followed unconstitutional procedures in ratifying the child labor amendment, was not the type traditionally redressed by the judiciary and would open the federal courts to “sit[ting] in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies.” Id. at 469-70.

Finally, Justice Butler authored a dissent, for himself and Justice McReynolds, arguing that the Court should have reached the merits and struck down Kansas’s ratification as untimely. Coleman, 307 U.S. at 470 (Butler, J., dissenting). It should be noted, however, that Butler did not actually express an opinion on whether the timeliness of ratification was a political question. Instead, he pointed to the fact that the Court had previously treated it as a justiciable question, and he argued that the Court should not have reversed itself on this point without argument or briefing.

Coleman’s Impact on Compact/Article V Litigation

So where does this leave us on the applicability of the political question doctrine to Article V issues generally, and matters related to the Article V convention specifically? Seven justices in Coleman found the political question doctrine applied to bar judicial review of certain aspects of the constitutional amendment process. Only four justices, however, clearly indicated that all (or virtually all) aspects of the constitutional amendment process fell within the political question doctrine.

The conventional wisdom among legal scholars has been to read the Hughes and Black opinions together as recognizing congressional primacy in deciding Article V issues and therefore effectively establishing the broad applicability of the political question doctrine to Article V cases. See Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U.L.Rev. 1908, 1930-31 n. 118 (2015) (“Even scholars who argue that the amendment process should not be a political question agree that Coleman v. Miller . . . has been construed to render Article V claims nonjusticiable.”). For example, Professor Dellinger, while noting that Hughes’s opinion is limited in its holding, nonetheless believes its reasoning would “preclude judicial review of all issues concerning the validity of ratifications that might be considered and resolved by the Congress that decides whether to promulgate the amendment.” Walter Dellinger, The Legitimacy of Constitutional Change” Rethinking the Amendment Process, 97 Harv. L. Rev. 386, 392 (1983).

Professor Paulsen has a slightly different take on Coleman. See Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L. J. 677, 713-21 (1993). Paulsen describes Hughes’s opinion as a “model of unclarity” as to its rationale, sounding in some places as though it is relying on the absence of judicially manageable standards to make certain determinations (e.g., what constitutes a “reasonable period” for ratification) and in others on the notion that Article V specifically commits decision-making about constitutional amendments to Congress. Id. at 714. Because only the Black opinion clearly adopts a position of “plenary congressional power,” Paulsen contends, “it cannot be claimed that the Supreme Court actually adopted this position.” Id. at 717. Indeed, the various opinions are so splintered and confused that “Coleman may simply not be authoritative at all.” Id. Nonetheless, “Coleman—the Hughes opinion uncomfortably combined with the Black opinion—has come to be regarded as standing for the proposition that legal issues presented by the amendment process (or at least the issues of prior rejection and attempted rescission) are political questions that are practically and perhaps even substantively committed to Congress’ exclusive determination.” Id. at 718 (emphasis in original).

Paulsen’s suggestion that Coleman could be disregarded as not “authoritative at all” is probably not going to fly with the courts. Justice Scalia, in a 2015 dissent joined by Justice Thomas, called Coleman “a peculiar case that may well stand for nothing.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. __ (2015) (Scalia, J., dissenting). In particular, he questioned whether a majority of justices had actually joined Hughes’s opinion with regard to legislative standing, which was the issue in Arizona State Legislature. However, the majority in that case, in an opinion authored by Justice Ginsburg, responded that Hughes’s opinion was styled as “the Opinion of the Court” and contended that previous Supreme Court cases had recognized Coleman’s “precedential weight.” Arizona State Legislature, 576 U.S. at  __ n.13. Although this exchange related to the standing issue, it seems unlikely that the Court is prepared to disavow Coleman’s precedential status as to the political question doctrine either.

This leaves us with a debate as to how broadly the principles enunciated in Coleman should be applied. On the one hand, they could be applied narrowly only to questions that lack judicially manageable standards, such as the need to weigh political, social and economic factors in determining the timeliness of ratification, as opposed to pure questions of law. On the other hand, they could be applied more broadly, as Justice Black urged, to preclude judicial review of any question that could be resolved by Congress rather than by the courts.

Purely as a matter of precedential authority, Coleman does not resolve this debate one way or the other. On one of the three legal issues presented, whether the Lieutenant Governor could validly participate in the ratification vote, the Court evenly divided as to whether it was a political question. Presumably the four justices who favored reaching the merits believed, contra the four who joined the Black concurrence, that such a pure issue of law was suitable for judicial resolution even though it could have been left to Congress to decide.  Thus, how broadly to apply the political question doctrine in Article V cases remains an open question.

Paulsen suggests that the outcome in Coleman may be best explained not by the reasons given in the various opinions, but by a prudential concern regarding the legitimacy of judicial intervention in the constitutional amendment process. 103 Yale L. J. at 717. As Paulsen notes, the child labor amendment in Coleman was intended to reverse prior Supreme Court decisions, and “[i]t might have looked unseemly for the Court to intervene in a dispute over an amendment repudiating the Court’s own decisions, especially if the result hindered adoption of the amendment.” Id.; see also Goldwater v. Carter, 444 U.S. 996, 997, 1002 (1979) (Powell, J., concurring) (offering the same explanation for Coleman). Although this rationale has particular resonance with regard to amendments that overrule Court decisions, it counsels for judicial restraint in Article V cases generally. See, e.g., Thomas Millet, The Supreme Court, Political Questions, and Article V—A Case for Judicial Restraint, 23 Santa Clara L. Rev. 745, 747 (1983) (“By exercising review over article V cases . . ., the Supreme Court’s ability to say what the law is would be unchecked, a result at odds with the concept of a republican government of separated powers.”). It would also argue that the federal judiciary should not interfere with state authority to initiate constitutional amendments under Article V.

No court has yet had occasion to consider the application of the political question doctrine to cases involving the Article V convention. It should be noted again that Coleman’s rationale of deference to Congress is particularly questionable with regard to the Article V convention because the very purpose of the convention is to enable the states to obtain constitutional amendments without Congress’s consent or cooperation. As Dellinger perceptively notes, deference to congressional determinations in such cases is “squarely contrary to the deliberate conferral of amendment-proposing power on a national convention provided as an alternative to Congress.” 97 Harv. L. Rev. at 399 (emphasis in original).

As discussed in my last post, however, there are other reasons counseling against federal court intervention on matters related to the Article V convention. While it would be improper for the courts to view Congress as the final authority with regard to a convention, it does not necessarily follow that the courts themselves should be the final authority. At the very least, judicial intervention might be limited to the instance where Congress is in clear breach of its ministerial duty to call a convention.

Our focus here is not on what courts should do, but what they are likely to do. This in turn may well depend on the context in which the issue arises. Consider the example given in the Wines article—Congress calls a convention based on 34 non-identical state applications for a balanced budget convention, and it is challenged in court. In this situation, the court might be inclined to hold that the political question doctrine applies under Coleman. After all, Coleman deferred to Congress on matters not explicitly discussed in Article V at all (e.g., the length of time during which ratification may take place), it may seem logical to defer to Congress with respect to a function (calling the convention) which Article V explicitly assigns it.

Moreover, in this situation there is not necessarily a conflict between deference to Congress and deference to state legislatures under Article V. The court might presume that the states which have been included in the count have consented to such inclusion because they have long been on notice that they appear on the “list” of balanced budget amendment states, yet have not rescinded their applications or otherwise taken action to disassociate themselves from the applications of their sister states. Indeed, the most recent applications by state legislatures explicitly list the prior applications with which their application should be aggregated.

The matter might appear differently if one (or more) of the applying states were to be plaintiffs in the litigation. In that case, the state plaintiff might argue that Congress had called a convention other than the one for which it had applied. Here the tension between Coleman’s theory of deference to Congress and Article V’s purpose of empowering the states to seek a convention to circumvent Congress would become more apparent. But one could still argue that the court should not intervene, but should leave the issues to be resolved by the various political actors named by Article V (Congress, the state legislatures, the convention for proposing amendments and, in some cases, state ratifying conventions).

Even if a court were to adopt a narrow reading of Coleman, it might block some of the claims in our hypothetical lawsuit. Consider three possible arguments against the convention called by Congress: (1) the call was invalid because an Article V convention cannot be called for a limited purpose; (2) the call was invalid because the applications were not identical in their wording; and (3) the call was invalid because some of the applications were not sufficiently similar to the others.

The first of these would not be barred by the political question doctrine, at least under a narrower reading of Coleman, because it presents a pure issue of law and would not seem to call for the exercise of political judgment or discretion. The same is true of the second, though it may be a somewhat closer question. Once it is conceded that applications need not be exactly identical, however, the issue of how close is “close enough” for aggregation is one not easily susceptible to judicially manageable standards. Thus, the third argument might well be barred even under the narrower view of Coleman.

At the end of the day, no one can say with confidence that the political question doctrine will bar all litigation arising out of the Article V convention. Coleman itself does not go as far as some assume, and I tend to think (in part based on subsequent cases that will be discussed in future posts) that it will probably not be applied that broadly. Nonetheless, the political question doctrine will almost certainly be raised in any Article V litigation, and there are some types of claims, such as the aggregation issue just mentioned, where it will most likely serve as a bar to justiciability.

 

 

 

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