Do the State Shutdowns Violate the U.S. Constitution?

This article appeared on The Bulwark on May 12, 2020.
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Here’s something you probably didn’t know: states like Michigan, Maryland, Virginia, and Kentucky have all ceased in recent weeks to be organized in political terms as republican forms of government. The culprits in each case are the states’ governors—Gretchen Whitmer, Larry Hogan, Ralph Northam, and Andy Beshear respectively—and the actions each has taken in response to the spread of the novel coronavirus. All four states, or so it would seem, are therefore in violation of the U.S. Constitution, which specifies that every state in the union shall be guaranteed a republican form of government.

That may sound like a wacky theory. All right, let’s face it—it is a wacky theory. But it’s a common thread in lawsuits filed against all four governors in recent weeks challenging the virus shutdowns. Moreover, claims that the governors have violated the Constitution’s Guarantee Clause have been circulating in some populist corners of Trumpland for weeks, sometimes helping to furnish a scenario under which the president might have an inherent power to give direct orders to state governors, as the current White House occupant briefly seemed to imagine he had the constitutional power to do.

There’s little prospect any of these notions will convince a judge to enjoin a shutdown anytime soon. Since the 1849 case Luther v. Borden, involving a Rhode Island dispute, the U.S. Supreme Court has consistently held that the Guarantee Clause does not create any rights that can be enforced in federal court—as a nonjusticiable “political question,” it is instead entrusted to the elected branches. Just last year, in the gerrymandering case of Rucho v. Common Cause, Chief Justice John Roberts reminded everyone that the clause creates no rights that can be sued over. Ironically, while there has been no shortage of legal commentators yearning to breathe life into the clause as a means for courts to reshape state government, such interest has come above all from progressives. Conservatives have a lot to lose policy‐​wise should the courts ever decide to rouse the Guarantee Clause from its slumber—and even more ironically, Trump fans may have more to lose than do conservatives.

The clause—Article IV, Sec. 4 of the document—reads in its entirety:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Scholars agree on one thing about this clause: It was meant to exclude monarchical forms of government, in which elections are dispensed with or high office could be inherited within a family. And it worked: No state, not even Massachusetts with the Kennedys, has adopted formally dynastic methods of filling high office.

How much more than that does the clause require? Agreement soon breaks down, as many schools of thought will argue that their preferred ways of organizing political life are indispensable to a properly functioning republic and should be seen as implied requirements under the clause. In the dispute that the Court refused to resolve in the 1849 case, Rhode Island had retained a high property qualification that essentially kept the government in the hands of larger landowners while excluding the majority of male citizens. Later cases sought to challenge as departures from republicanism innovations that made government too democratic—for example, the use of initiative and referendum was assailed on this basis as bypassing the aspect of republicanism under which power is ordinarily exercised through representative institutions rather than directly by the people. Those challenges failed too.

In truth, the more modest readings of the clause are the most persuasive. In our day, as in the Founders’, republics can be organized in all sorts of ways, including dysfunctional and regrettable ways, while still counting as republics. Switzerland is an archetypal republic whose structure influenced the Founders; its cantons are not all organized the same way, just as no two American states organize their legislature in the same way. The Republic of Italy may be a dysfunctional polity in many ways, but it would be idle to deny it the status of republic. Gerrymandering is an ill typical of republics, but it does not keep them from being so—in fact you might say it even perversely serves to confirm their status as republics, the way certain ailments specific to canines confirm that your suffering pet is indeed a dog. And so forth.

As Ryan Williams recounts in the introduction of this Harvard Law Review piece, notable left‐​of‐​center law professors have long wished and hoped for an invigoration of the Guarantee Clause that would empower the Court to impose on the states modern ideas of how a good republic should function. One early effort proposed that courts should begin forcing more equal spending on K-12 education because, after all, an educated populace is essential for a well‐​functioning republic. Other, more recent proposals would use the clause to set the Court up as a corrector both of gerrymandering and of what critics blast as voter suppression. Libertarian thinkers have sometimes gotten into the act as well.

Needless to say, the results of inviting courts to begin redesigning state voting and electoral systems would probably dismay many Republican partisans, as well as others who doubt the all‐​round reform competence of federal courts. But the new round of lawsuits aimed at “reopening” the states—I analyzed the very bad Maryland one here, while Prof. Sam Bagenstos of the University of Michigan did the same for his state’s—are weirdly lacking in any real engagement with the electoral processes that you might think define a republic. Of course the governors of all four states are duly elected, as are the legislatures. In each case the governors are purporting to act on the basis of public health and emergency powers conferred on them by statutes enacted by those same elected legislatures. It is possible, of course, that one or more of the governors might have overstepped the letter of these authorizing laws, and if so the courts of those states can yank them back into line. But unless one of the governors has sent out the National Guard to keep the state supreme court from hearing such a challenge, that doesn’t implicate a Guarantee Clause claim, which contends that the whole system has ceased to be republican.

The Kentucky lawsuit contends that the governor’s “impermissible exercise of exclusive and unaccountable executive authority” violates “the right of the people to choose their own governmental administration and pass their own laws.” The suits in Virginia and the other states use similar language. So if the complaints mean anything, it is that there is some sort of separation of powers problem going on here. Maybe the thinking is that governors should somehow be conferring more with legislators while using the emergency powers those legislators have expressly delegated to them—although that’s not actually how separation of powers works.

It may be worth noting that Virginia, Maryland, and Kentucky all have part‐​time legislatures that have adjourned for the year. The whole idea of emergency power statutes, especially in states without continuously serving legislatures, is that emergencies sometimes come up while the legislature isn’t there to help hold the reins of the sleigh. This isn’t new. It isn’t unconstitutional. It’s the way things work and are supposed to work in state government.

But imagine for a moment that the plaintiffs in these cases find a friendly jurist, one who decides that under proper republican principles judges should start rigorously scrutinizing a chief executive’s unilateral issuance of executive orders even when those orders are based on powers well spelled out in law, and even if that means second‐​guessing the traditional scope of executive discretion during an emergency. Do you think that might open up a new front by which federal judges could begin overseeing the actions of Donald J. Trump?

They never think through the implications of these things, do they?

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.