Ed Whelan has a post today on Bench Memos rejecting the argument made by Walter Dellinger (and endorsed to some degree by Michael McConnell) in an amicus brief that proponents of Proposition 8 defining marriage as limited to a man and wife lack standing to defend the proposition they sponsored and campaigned successfully to see adopted by the voters of California. Although I disagree with both Ed and my colleague Nick Rosenkranz about whether Congress has a general Definitions Power that enables it to define any term “for purposes of [any and all] federal law” regardless of whether such a definition improperly invades the traditional province of the states, I agree with Ed here. Walter’s brief is forceful, as is to be expected from him, and from my Georgetown colleague Irv Gornstein who is counsel of record, but it fails to come to grips with a fundamental issue. This is an issue that Ed glosses over in his more technical reply to Walter, but which is strongly emphasized by Ed Meese and John Eastman in their amicus brief to which Ed links. The principle is this: In some states, the people — or more accurately the voters on their behalf — have a constitutional power to enact laws and amend the state constitution by popular initiative or referenda. This is a power specifically intended to be used when the purported “agents” of the people in any branch of state government are not doing what the voters want, whether this be to make new or enforce existing law. In these states, in addition to the general power to defeat current state office holders, or impeach state supreme court justices, citizens have the added power to put constraints on these government actors by the initiative process. Proposition 8 was a specific example of the use of this power to contest the exercise of judgment of the California Supreme Court who had held that a statute defining marriage as between a man and a woman was unconstitutional under the California Constitution. So the voters got a chance to change the California constitution and correct the justices without having to defeat them in a retention election. In other words, California’s constitution gives the people an additional and direct remedy against their ‘faithless agents” in government aimed at specific government actions, rather than the indirect means of removing their agents from office. Given this structural protection afforded the citizens of California, does it make any sense to limit the standing to defend the laws or constitutional amendments adopted by this means to the very agencies of government that this power exists to correct or constrain? Here is the relevant portion of the Meese and Eastman brief quoting from Perry v. Brown, 265 P.3d 1002 (Cal. 2011), the California Supreme Court case affirming the standing of initiative proponents:
The initiative process was added to the state constitution in 1911 to provide a mechanism for the exercise of that inherent power by ―afford[ing] the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions. Id. at 1016. Because ―[t]he primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt, id., the Court recognized the ―distinct role‖ that California law recognizes for the official proponents of an initiative ―with regard to the initiative measure the proponents have sponsored, id. at 1017-18. It was for this reason that ―decisions of both [the California Supreme Court] and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties—either as interveners or as real parties in interest—in both preelection and postelection litigation challenging the initiative measure they have sponsored. Id. at 1018. And this intervention had been routinely permitted, the Court noted, ―whether or not the Attorney General or other public officials were also defending the challenged initiative measure in the judicial proceeding in question. Id. The Court then described the number of such cases in which such intervention was permitted as ―legion. Id. And the Court specifically noted that initiative proponents had been permitted not just to appear as formal parties but ―to appeal from an adverse judgment. Id. at 1019 (citing Amwest Surety Ins. Co. v. Wilson, 906 P.2d 1112, 1116 (Cal. 1995); 20th Century Ins. Co. v. Garamendi, 878 P.2d 566, 598 (Cal. 1994); People ex rel. Deukmejian v. County of Mendocino, 683 P.2d 1150, 1152 (Cal. 1984); Simac Design, Inc. v. Alciati, 92 Cal.App.3d 146, 153 (Cal.Ct.App. 1979)).
Among the Dellinger brief’s central claims is the lack of a limit to the power of states to authorize proponents of state referenda and initiatives to defend challenged enactments when state authorities refuse to do so. But this rational for standing in popular sovereignty contains within it a principled limit, without any slippery slope to extending the power to citizens who have only a “general interest” in any state law: standing should be extended to those who invested their time and energy into proposing popular initiatives when the state authorities refuse. There is, therefore, a good structural basis both for the recognition of standing, as well as for limiting standing to just this sort of circumstance.
Standing doctrine is complex. But here “first principles” of popular sovereignty suggest that measures enacted directly by voters deserve to be defended from constitutional challenge when the supposed “agents” of the people fail to do so. The fundamental misstep of the Dellinger brief is to stress “the states’s interest in defending initiatives.” But it is the people’s interest, not the state’s, that is at issue here. And the California Supreme Court seems to have gotten this point right. There should be no barrier based on standing to prevent the U.S. Supreme Court from reaching the merits of this constitutional challenge to Proposition 8.