In a June 30th op-ed published by Time, Illinois law dean and professor Vikram David Amar wrote about the dire consequences the country could face, should the Supreme Court decide to embrace the so-called independent legislature theory when it decides Moore v. Harper in the 2022 term. An excerpt follows:
ISL theory is as wrong-headed as it is treacherous. True, Articles I and II of the U.S Constitution do refer to “legislatures” of the states. Under Article I, section 4, the “Times, Places and Manners” of holding congressional elections “shall be prescribed in each State by the Legislature thereof.” And Article II says that “Each state shall appoint, in such manner as the Legislature therof may direct” a slate of presidential electors. But careful examination of constitutional text shows the lie to ISL. For example, the text of Article II (the presidential-election context at issue in Bush v. Gore) empowers “states,” not state “legislatures,” and adds merely that legislatures “may”—not that they “must” or “shall”—be involved in setting presidential selection rules. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the state constitution that creates, defines, and limits such legislature. Certainly to the founding generation, it was well accepted that a state “legislature” was an entity created and constrained by its state constitution.
Read the full op-ed at Time.com.
Note: The views expressed are those of the author and do not necessarily reflect the views of the University of Illinois College of Law.