Wednesday, April 29, 2020

It Is Still Possible To Reschedule Indiana's 2020 Primary Elections Using Lawful Means

Less time remains for us to act than when I mentioned this before.

A little over a month ago, Governor Eric Holcomb of Indiana issued "Executive Order 20-07" for the purpose of rescheduling Indiana's 2020 primary elections.  This was one of the many orders that the Governor has issued in order to compensate for the drastically altered circumstances of the present pandemic.

Considered purely as a matter of policy, it was and it remains a good idea for Indiana to hold these elections on a later date than that which is set by state law.  Indiana law establishes May 5th* as the date of Indiana's 2020 primary elections.  Executive Order 20-07 affects to suspend this legal provision and replace it with another which would move the election from May 5th to June 2nd.

Unfortunately, this is inadequate to legitimately cancel the election scheduled for May 5th and authorize one to be held on June 2nd in its place.  I do not blame Governor Holcomb for trusting that Indiana's "Emergency Management and Disaster Law", Indiana Code chapter 10-14-3, would limit its grants of power to the Governor to grants of power that the Governor is constitutionally capable of possessing.  Why wouldn't it limit itself that way?  It should.  Regrettably, IC 10-14-3 is a mess (in addition to being an excellent demonstration of the kinds of laws servile-minded people will make when they get the chance).  That chapter claims to grant the Governor an array of extraordinary powers during a "State of Disaster Emergency" (which it authorizes the Governor to declare), including a power to suspend certain types of laws.  The suspending power that it pretends to grant is both hostile to our very form of government and directly prohibited by Section 26 of the Indiana Bill of Rights.  (I question whether the kind of statutes that it supposedly allows the Governor to suspend would actually include one determining when an election is to be held, but there are bigger issues that deserve our attention, right now.)

All of us are or ought to be aware of the pressure that Governor Holcomb is under, right now.  The present is a fairly unfamiliar, unusually high-stakes situation, and the Governor happens to be responsible for making a great number of decisions respecting which every available option is profoundly objectionable -- even when it is clear which options are right and which are wrong.  I consequently find it impossible to become angry with him for innocently exercising a power that he no doubt believed he had, and which I assume unknown advisers assured him that he had, to achieve something that clearly was needed: rescheduling Indiana's 2020 primaries.

However, a lawful way to reschedule the primaries exists.  The Governor can call a special session of the Indiana General Assembly (Article 4, Section 9 of the Indiana Constitution).  In addition to giving him the power to call special sessions, the Indiana Constitution (Article 5, Section 20) explicitly empowers the Governor to convene the General Assembly in a safe place if an infectious disease makes it dangerous to meet in the usual location -- a provision that reads as though it were designed for this very moment.  Once it is convened in a suitably spacious, well-ventilated meeting place, the General Assembly can use the legislative power to modify the law as needed -- the right and legitimate way.

Some would question the need to do this, as Executive Order 20-07 has almost certainly already ensured that there will, in fact, not be elections in Indiana on May 5th, 2020.  They may also question what we would gain by obtaining legal authorization for the primaries to be held on June 2nd, given that, strictly speaking, it will be possible to hold elections on that date whether the laws of Indiana sanction it or not.  Even if obtaining legality for the rescheduling of an election would not ordinarily be a sufficiently compelling reason for the state legislature to meet -- though I must insist that it would be and is -- I ask each of us, and all of us, to recognize its special importance at this moment.

Indiana's government is not alone (and was not the first) among the state governments in toppling law and justice when these might have stood in the way of contemplated measures to combat COVID-19.  Americans throughout the United States are now accustomed (whether from having been mere witnesses or actual subjects) to the fact of entire states instituting -- indefinitely -- a general suspension of liberty.  Nothing less than these words could satisfactorily characterize the general form of what has been done, though the suspension may have come with many provisos.  Subjection has become commonplace, but in how many of our states have these measures of such magnitude been carried out though nothing better than executive imitations of legislation?  In how many states has it been thought necessary even to seek the consent of the elected representatives of the governed?  We have good reason to doubt that we currently live under governments of law, much less of justice.  Indiana deserves better, as does all of America.

I believe that the Governor issued Executive Order 20-07 innocently, believing this executive order for the delay of Indiana's 2020 primary elections to be no less legal than its object was necessary.  But now that the legal inadequacy of the executive order has been brought to light, and the remedy has been identified and requested, the General Assembly must be summoned and called upon to exercise the legislative powers that a Governor may not.

It is true that, in a short-sighted kind of way, it would be more convenient to continue to rely on the vaunted authority of Executive Order 20-07 than to call a special session of the Indiana General Assembly.  However, apart from the lawlessness of that course of action (which I see as a very considerable argument against it), this is a moment when Hoosiers and Americans at large need to see an American government choose to follow the law for the simple but invaluable reason: that there remains at least one government which accepts that it is bound by the law.  We cannot control the decisions of other states, but we must decide that this is the type of government that we will have in our own.


Wednesday, April 15, 2020

From 1816 to 1851

Among the state constitutional provisions prohibiting the exercise of powers to suspend laws other than by legislative authority (which I posted yesterday), I included the version that Indiana had in its 1816 constitution.  That version, from Article 1, Section 6 of Indiana's previous (and original) constitution, reads, "That no power of suspending the operation of the laws, shall be exercised, except by the Legislature, or its authority."

That way of phrasing it, adding those three words so as to permit the suspension of the operation of the laws by the legislature "or its authority," appeared in a few additional state constitutional provisions that I listed, yesterday, and they seem to indicate an intent (for the states that have or had those provisions in their constitutions, for as long as they actually had them in their constitutions) to allow someone other than the legislatures of such states to suspend their laws, provided that the suspension is carried out in accordance with authorization for it that had been granted by the legislature.  It would be unjustifiable to assume that this necessarily would permit the legislature of such a state to grant an unconditional, open-ended authority to anyone to suspend the laws of the state (or the operation of its laws), which would itself permit the legislature to make a major change to the state's form of government without even being required to amend its constitution in order to do so.  I also note that a few states that used that sort of wording (which would allow their laws to be suspended either by the state legislature itself or by someone acting with the authority of the legislature) required that any such authority delegated by the legislature be limited to specific, defined cases.

However, none of that any longer concerns Indiana.  The current version of this rule, which, as I have stated before, now appears in Article 1, Section 26 of the Indiana Constitution, replaced the previous version when our current state constitution was adopted in 1851.  Article 1, Section 26 reads, "The operation of the laws shall never be suspended, except by the authority of the General Assembly."  It would take much more effort (and imagination) to believe that this version leave the Indiana General Assembly the latitude to confer upon somebody else the lawful power to turn our state's laws off and on at will.  That possibility is even less plausible considering that this wording of Article 1, Section 26 was chosen as a replacement for the wording of its 1816 counterpart: the change eliminates the "or its authority" language.  In addition to this, we should never forget that the entire purpose of these "suspension" clauses is to prevent the executive from assuming a power to suspend the laws, and, ultimately, to ensure that the power to alter the laws either temporarily or indefinitely remains in the hands of the legislature -- where it is supposed to be.

Tuesday, April 14, 2020

Denial Of A Power To Suspend Laws

I mentioned that the Constitution of Indiana forbids suspension of the operation of the laws other than by the authority of the General Assembly -- the body in which the legislative power of the state is vested.  Considering that the legislative power can be used to create or add to the statute law of the state, or to amend it, or to expunge parts of it (if the General Assembly chooses to do so), it makes sense that the power to temporarily mute or modify the effect of a provision of law would belong to the General Assembly itself.

This conclusion would be unavoidable even if the Indiana Constitution's Bill of Rights (Article 1 of the constitution) did not explicitly forbid suspension of the operation of the laws by any other authority.  It is among the principal settled doctrines defining the republican form of government as known to America that the legislative power may not be used without the consent of the representatives of the people in their legislative assembly.  However, I will provide some information about the history of Article 1, Section 26 of the Indiana Constitution in order to intercept and correct an error that I would otherwise expect many people to be tempted to make -- thinking that the rule imposed by Section 26 of Indiana's Bill of Rights is an unimportant, trifling provision that happened to find its way into our constitution but which nobody ever really even know or cared about.  (Believing that might make it easier for some people to justify to themselves willfully disregarding and directly violating it.)

The appearance of rules against any power of suspending the laws (or the execution of them) in American constitutions began around the beginning of the independence of the newly United States, which states had before that time been (as everyone reading this presumably knows) English colonies.  Though the American Revolution did result in independence, it began with Americans of these colonies attempting to vindicate rights that they understood the laws of England to have guaranteed to them.  It consequently can be no surprise that when the time came for these Americans to form their own governments and laws, they made an effort to protect these rights for themselves.

In English law, it was the English Bill of Rights in 1689 (sometimes dated to 1688 for technical reasons that are not worth explaining) that explicitly established protection from the suspension of laws.  Many parts of the English Bill of Rights responded to and were meant to prohibit in the future the exercise of powers that had been assumed by James II, a king of England whose reign had very recently ended -- powers which Parliament alone could lawfully possess.  Among these were the powers to dispense with or suspend the laws or their execution.  One part of the English Bill of Rights is a list of grievances against England's former king, and among the ways it identifies in which that king had wronged the kingdom, the Bill of Rights names, "By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament".

A different part of the English Bill of Rights is a declaration of rights, or a declaration of some of the laws of England in relation to rights.  This part of the Bill of Rights also condemns as illegal the powers to dispense with or suspend the laws without consent of the legislature: "...That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;" and "...That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal".

The American Declaration of Independence condemned a similar offense in 1776, though the grievance in that case had (quickly) grown more severe: “For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever”....

Beginning in the spring of 1776, these former colonies began to create state constitutions to govern themselves.  Following independence and the creation of the United States Constitution, they were joined by additional new states which likewise created for themselves new state constitutions.  The following are all of the state constitutional provisions that I found concerning the suspension of laws (up through the year 1842).  From this point, there is little that I can add through narration, so I will just list the following American state constitutional provisions.  They are grouped by state.


Delaware declaration of rights, 1776.  "Sect. 7.  That no power of suspending laws, or the execution of laws, ought to be exercised unless by the Legislature."

Delaware Declaration of Rights, 1792.  "Article I.  Section 10.  No power of suspending laws shall be exercised, but by authority of the legislature."

Pennsylvania, 1790.  "Article IX.  Of suspending laws.  Sect. XII.  That no power of suspending laws shall be exercised, unless by the legislature, or its authority."

Pennsylvania, 1838.  "Article IX.  Suspending laws.  Section XII.  No power of suspending laws shall be exercised, unless by the legislature, or its authority."

Massachusetts, 1780.  "Art. XX.  The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for."

Maryland, 1776.  "VII.  That no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed."

New Hampshire, 1783.  "XXIX.  The power of suspending the laws, or the execution of them, ought never to be exercised but by the Legislature, or by authority derived therefrom, to be exercised in such particular cases only as the Legislature shall expressly provide for."

Virginia Declaration of Rights, 1776.  "VII.  That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised."

North Carolina, 1776.  "V.  That all powers of suspending laws, or the execution of laws, by any authority, without consent of the Representatives of the people, is injurious to their rights, and ought not to be exercised."

Vermont, 1786.  "XVII.  The power of suspending laws, or the execution of laws ought never to be exercised, but by the Legislature, or by authority derived from it, to be exercised in such particular cases only as the Legislature shall expressly provide for."

Vermont, 1793.  "Article XV.  The power of suspending laws, or the execution of laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases, as this constitution, or the legislature, shall provide for."

Kentucky, 1792.  "Article XII.  XIV.  That no power of suspending laws shall be exercised, unless by the Legislature or its authority."

Kentucky, 1798.  "Article VI.  14.  That no power of suspending laws shall be exercised, unless by the Legislature or its authority."

Ohio, 1803.  "Article VIII.  Sec 9.  That no power of suspending laws shall be exercised, unless by the Legislature."

Louisiana, 1812.  "Article VI.  Sec. 17.  No power of suspending the laws of this state shall be exercised, unless by the legislature or its authority."

Indiana, 1816.  "Article I.  Sect. 6th.  That no power of suspending the operation of the laws, shall be exercised, except by the Legislature, or its authority."

Mississippi, 1817.  "Article I.  Section 15.  That no power of suspending laws shall be exercised except by the Legislature or its authority."

Mississippi, 1832.  "Article I.  Sect. 15.  That no power of suspending laws shall be exercised, except by the legislature, or its authority."

Alabama, 1819.  "Article I.  SEC. 15.  No power of suspending laws shall be exercised, except by the General Assembly, or its authority."

Maine, 1820.  "Article I.  Sect. 13.  The laws shall not be suspended but by the legislature or its authority."

In addition to the relevant provisions from these state constitutions, I also include the following requests for an amendment (which are nearly identical to each other) to the United States Constitution; these requests were made by conventions called in Virginia, North Carolina, and Rhode Island to consider ratification of the Constitution.  Obviously, no such amendment to the United States Constitution was ever made, but anyone with a sincere interest in the meaning or the importance of the corresponding provision in the present-day Indiana Constitution should give them the attention that they are due.

Virginia Ratification, commentary and proposal, 1788.  "Seventh, That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised."

North Carolina Convention, Requesting Amendments but Declining to Immediately Ratify, Declaration of Rights, 1789.  "7th.  That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the Legislature, is injurious to their rights, and ought not to be exercised."

Rhode Island and Providence Plantations Ratification, declaration of rights, 1790.  "7th That all power of suspending laws or the execution of laws, by any authority without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised."

Sunday, April 12, 2020

Special Session of the Indiana General Assembly Needed Before May

A few points:

First, though in its details, this is another post that directly concerns only the State of Indiana, its subject is conceptually inseparable from one of the defining features of what government in America is supposed to be: what the U.S. Constitution refers to as the "Republican Form of Government".

Second, I apologize for not saying something about this sooner.  Though I did hear about Governor Eric Holcomb's decision to delay Indiana's 2020 primary elections in response to the pandemic (which, considered purely as a matter of policy, I think is a necessary move) when the decision was announced a few weeks ago, it did not initially occur to me that timing of Indiana's primary elections is already set by the Indiana Code itself, and I was not aware at that time that Executive Order 20-07 attempts to "suspend" that provision of state law.

Third and finally, the main point of this post is this: in order to lawfully reschedule this year's primary elections in Indiana, which in accordance with IC 3-10-1-3 were to take place on May 5th, Governor Holcomb must call a special session of the Indiana General Assembly as soon as possible.  Indiana's primary elections do need to be rescheduled from May 5th, this year, but the May 5th date was set by the laws of our state (again, specifically IC 3-10-1-3) as established by its legislative power, which is vested in the General Assembly (see Article 4, Section 1 of the Indiana Constitution; for those seeking optional material for personal enrichment, see also Article 3).  Only the legislative power can alter or suspend prior acts of legislation, and only the General Assembly can use the legislative power.

I have no serious doubt that in issuing Executive Order 20-07, to suspend IC 3-10-1-3 and temporarily substitute for it a new rule to operate just as though it were the law, Governor Holcomb believed that he had lawful authority to do so.  I assume that advisers told him so, though that regrettably would mean that whatever they told him was wrong.  They ought to have known something about our form of government, and the notion of a legislative power being vested in the legislature ought to have been comprehensible enough to them, but it is a mystery how they managed to keep their error intact given that the Indiana Constitution was designed to drive that very error into extinction.  Indiana's Bill of Rights is Article 1 of the Indiana Constitution, and Section 26 of that Bill of Rights provides: "The operation of the laws shall never be suspended, except by the authority of the General Assembly."  In placing this in our Bill of Rights, Indiana has followed the example set by the English Bill of Rights (1689), which explicitly abolished this power in England (shortly after a recent king had effectively created it by asserting that power, despite having no lawful authority to do it, and getting enough people to act as though it were legal ... for a while, anyway), in addition to the example set by a number of the individual United States.  It is probable that those advisers simply had never read the Indiana Constitution.  (If I ever receive confirmation of that, I will try to find the Governor some better advisers.)

Though the Indiana Constitution explicitly forbids any authority other than the Indiana General Assembly to suspend the operation of the laws of the state, the same constitution fortunately has granted the Governor ample lawful power to ensure that this year's primaries are rescheduled as needed.  Article 4, Section 9 gives the Governor the power "at any time by proclamation" to "call a special session" of the Indiana General Assembly.  Additionally, Article 5, Section 20 provides, "Should the seat of government become dangerous from disease or a common enemy, the Governor may convene the General Assembly at any other place."  This is both fortunate and fitting; we can see that the Indiana Constitution was designed for people who would not surrender or abandon either the rule of law or the determination to remain a free state, even when facing the extraordinary dangers posed by infection or invasion.

The usual chambers of the House of Representatives and the Senate at the Statehouse would most likely be an unsuitable meeting place until the infamous virus ceases to be a problem.  Consequently, the Governor will be able to convene the General Assembly "at any other place".  It is convenient that in calling this immediate special session, there will be (I suspect) an abundance of spacious, well ventilated, vacant space where the General Assembly will be able to conduct its business with the danger of infection all but eliminated.  Unless we are certain that the Statehouse will be a safe meeting place for the General Assembly later in the year, though I doubt that we can be entirely certain what the state of the pandemic will be at that time, we ought to be prepared for the possibility that the General Assembly will need to be convened at some "other place" then.  For the General Assembly to conduct its business efficiently at a location other than the Statehouse, I assume that there will be problems needing to be solved, details needing to be settled, and, perhaps, appropriations needing to be made.  It ought to be easier to deal with that experience now than later, as it currently will at least be easy enough to find enough vacant (and, ideally, inexpensive) space so that the legislature will have somewhere to sit.

I urge Governor Holcomb to immediately call a special session of the Indiana General Assembly.  Only by doing so can Indiana's 2020 primary elections be legally moved.  It will give the General Assembly the opportunity that it needs to reschedule the primaries itself, legitimately -- as well as to pass any other laws needed in order to adapt the machinery of Indiana's government to the unusual circumstances of this pandemic (and, as always, for the redress of grievances).

This is a matter of greater importance than it might superficially appear, so expect me to keep an eye on this issue.