Back in August 2023, I wrote about a potential Seventeenth Amendment conflict in Kentucky. Under Kentucky law, in the event of a Senate vacancy, the Governor could only appoint a temporary Senator of the same political party as the former Senator. The Kentucky Legislature has a Republican super-majority with a Democratic Governor. And the Governor indicated that he thought this constraint on his powers to appoint a Senator violated the Seventeenth Amendment. Vikram Amar suggested there were indeed problems. As history played out, Senator Mitch McConnell of Kentucky remains in office, so this issue was never tested.
However, the Kentucky legislature took another, even more potent step: it stripped the Governor of the power to appoint any temporary Senator. The Seventeenth Amendment does not require the Governor to even have this power. It provides, in part:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
May, not must. I see no constitutional problems with the text of House Bill 622, which repealed KRS 63.200. But, perhaps unsurprisingly, the Governor vetoed HB 622. He wanted to keep the same temporary appointment power that his predecessors had. Ultimately, the legislature overrode the veto, so HB 622 became law.
This sort of politics is not new. Consider the flip-flop by the Massachusetts legislature. In 2004, Senator John Kerry was running for President, and there was a Republican Governor, Mitt Romney. The Democratic legislature stripped the Governor’s power to make a temporary appointment, lest Mitt Romney temporarily appoint a Republican Senator. Five years later, in 2009, Senator Ted Kennedy was quite ill, and there was a Democratic Governor. The Democratic legislature restored the Governor’s power to make a temporary appointment. That way, a temporary appointment would maintain the Democrats’ 60-vote bloc in the Senate, and support the Affordable Care Act. (I wrote about this history in Unprecedented.)
For a moment, consider a counterfactual. If the Kentucky legislature did not override the Governor’s veto, would the veto have been effective? You may say, of course a Governor’s veto would be effective. But not so fast. If the Constitution assigns a function to the “legislature of any state,” does the Governor have any role in that process? Or does the “legislature of any State” actually refer to the entire apparatus of the state government, including the executive’s veto power, and perhaps judicial review by the courts. This latter argument would sound in the anti-ISL theory from Moore v. Harper.
There are some textual differences between the Seventeenth Amendment and the Elections Clause. The Elections Clause provides, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Moore Court observed that this clause specifically refers to the broader lawmaking process under the Constitution, which would include the executive and judicial branches. Laws that are prescribed by the state are passed by the legislature, approved by the governor, and reviewed by the courts for conformity with the state constitution.
By contrast, the second paragraph of the Seventeenth Amendment refers to two specific actors: “the executive authority of such State” and “legislature of any State.” This text seems to distinguish between the separate branches of state governments. If the legislature gives the Governor the power to fill those vacancies, the Governor can fill those vacancies. (I do not think the Governor is required to make a temporary appointment, but he “shall issue writs of election.”) But the Governor lacks that power if the Legislature withholds it. The Moore v. Harper argument does not naturally graft onto this text. Likewise, the decision to “empower” or disempower the executive belongs to the “legislature.” Would it flout the Seventeenth Amendment if the Governor could prohibit the legislature from disempowering the Governor through a veto? And query whether the repeal bill would even be subject to judicial review?
There is also a related line of cases about whether the President must sign a constitutional amendment. Seth Barrett Tillman wrote about it here. And Mike Rappaport offered some thoughts about when governors have to sign constitutional amendments.
Moreover, it is useful to compare the Seventeenth Amendment with the predecessor provision in Article I, Section 3, Clause 2:
if [Senate] Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
This text expressly granted the Governor the power to make temporary appointments, and that power could not be taken away by the legislature. By contrast, the Seventeenth Amendment took away the absolute temporary appointment power from the Governor, and allowed the state legislature to make the decision. This shift makes sense, since in the normal course the pre-Seventeenth Amendment legislature would choose senators; the governor played no formal role in that process. The Seventeenth Amendment at least preserved some role for the legislature to play in the event of a temporary vacancy.
Finally, if we are being originalists, we should look to the meaning of “legislature” during the Progressive Era, rather than in 1787.
Then again, I think there would have to be a careful study of practice. For example, were the appointment of Senators by state legislature prior to the Seventeenth Amendment presented to Governors? Did the state courts play any role in reviewing those appointments? This may be a question that winds up in the construction zone.
I do not know if the Governor’s veto of the bill would have been effective. Since the legislature overrode it, there is no need to test the issue.
I thank Professors Rob Natelson and Seth Barrett Tillman for helping me think through some of these fun issues.
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