Legislators Timing Themselves
Americans have had a love-hate relationship with legislatures since the very beginning. At times legislative bodies are championed as the branch closest to “the people.” And at other times they’re condemned as a den of thieves and corruption. Those tensions were explored in an opinion from the Indiana Supreme Court last week, Holcomb v. Bray, where the court found the state legislature’s attempt to delegate its power to set its own schedule while out of session to a smaller group of legislators to be unconstitutional.
Who guards the guardians?
At the time of the Revolution legislatures seemed like the best mechanism to prevent tyranny. Americans were fighting a war against a government they could not vote for (either the King or Parliament), so giving strong powers to those whom the people could vote for seemed like a sensible solution. This reaction was strongest in Pennsylvania, whose 1776 constitution created an extremely powerful unicameral legislature and no separate executive.
The results of this experiment soon came back, and they weren’t so great. Legislatures pursued all kinds of populist (but not necessarily “popular”) policies and many quickly realized breaks needed to be applied to legislative power. This was, of course, part of the impetus for the constitutional convention of 1787, and various other constitutional reforms, including a complete overhaul of the Pennsylvania Constitution in 1790. (Another was the evolution of the understanding of constitutional judicial review, a different story but often told in these pages.) Later, after the crisis of 1837 and debt defaults by many crooked legislatures, numerous states reformed their systems of government to put even tighter reins on legislative power. One example was the curtailment of “special legislation.” Another was to restrict how often legislatures could be in session. The less time the bums had to pass laws, went the reasoning, the less damage they could cause.
Indiana was one of these states. In its 1851 Constitution the state ratcheted back the legislature’s (the “General Assembly”) power from the previous 1816 Constitution. Going forward the General Assembly could only meet for a regular session every-other-year, and only for 61 days. The governor could call special sessions, and they were limited to 40 days.
In the long run these limitations on the power of government turned out to prove unpopular to those in government. (Quelle surprise!) With the expansion of power in the twentieth century, state officials felt these limits too constraining. Thus, the General Assembly proposed to the voters, and in 1970 the voters adopted, reforms to when the legislature could meet (later tweaked in 1984). Now the legislature could fix its own schedule.
“fixed by law”
Under this new system the General Assembly has broad latitude to decide when it is in session. Article 4, Section 9 states that the General Assembly begins its session in January of every year unless it choses a different date. Further: “But if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session. The length and frequency of the sessions of the General Assembly shall be fixed by law.” And separately, but crucially for the Holcomb case, Article 4, Section 1 states “no law shall be enacted, except by bill.”
The case emerged from a dispute between the current governor and the General Assembly during the pandemic. The governor issued emergency public health restrictions. The leaders of the General Assembly wanted to legislate against some of those restrictions, but they were not in session and the governor did not call a special session. Once they were back in session they passed a law (over the governor’s veto) that created a “Legislative Council” of sixteen legislators that could, under certain circumstances, call an “emergency session.” In effect, it was a delegation of the power to “fix by law” when the General Assembly can meet to a committee.
The governor saw this as an attempt to circumvent what he saw as his sole authority to call special sessions in Article 4, Section 9. So he sued.
A bit of nondelegation doctrine
And he won. The opinion is lengthy and deals with a few subjects, including standing and ripeness, but the most important take-away is that when the General Assembly sets the timing of its session, i.e., “fixed by law,” it must do so through a properly enacted “bill,” per how “law” is defined in Article 4, Section 1. Whatever the Legislative Council does it is not a “bill” so it’s not a “law” so it cannot set the timing of the legislature. Further, the court agreed that the Legislative Council framework was an end-run of sorts around the governor’s specific authority to call a special session. However, the court did say that the General Assembly could expand its power to meet more often in other ways, it just can’t do so without itself passing a bill setting the timing.
TThe court didn’t say “nondelegation,” but its reasoning, specific as it was to the Indiana Constitution, was in the same family as the nondelegation doctrine that has received renewed attention in the federal and state courts recently. Nondelegation watchers may be interested for that reason. It’s also similar to the “legislative veto” under federal law, and the famous case United States v. Chahda that found it unconstitutional.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.