California’s Next Senator Lives in Maryland!
A mere technicality?
In today’s open forum, Bill Jempty points us to a Mark Joseph Stern piece in Slate titled “The Strange Constitutional Loophole Exposed by Dianne Feinstein’s Replacement.”
On Sunday, California Gov. Gavin Newsom announced his appointment of Laphonza Butler to the Senate seat formerly held by Dianne Feinstein, who passed away on Friday at 90. Butler is set to be sworn in on Tuesday by Vice President Kamala Harris, whom Butler advised during her 2020 presidential bid. Before her swearing-in, however, senators will have an opportunity to object—and there is a possibility that Republicans will do so on the grounds that she is a resident of Maryland, not California, and thus constitutionally disqualified from representing the Golden State. Butler’s defenders have noted that she intends to re-register as a California voter, and that she owns property in the state, establishing her residency. Is that enough?
The short answer is: Nobody knows for certain, and the Constitution does not say, at least not in remotely clear terms. The Senate is the final arbiter of this question, and given Democrats’ (slim) majority, it is likely to vote down any objections.
As a practical matter, of course, that ends it. This is a political decision and there’s no reason to think the Democratic majority is going to vote down a Democratic Senator appointed by the Democratic Governor of California on the mere technicality that she’s currently working in Maryland. Indeed, it’s rather convenient that she already has a domicile within easy commuting distance to the Capitol!
Regardless, Stern has a broader point to make:
The profound legal ambiguity at the heart of this brewing dispute serves as a timely reminder that our antiquated, unamendable Constitution simply cannot answer many basic questions about the government it created.
I mean . . . sure. Its genius was that it’s relatively short and left some wiggle room, allowing it to continue limping along for 234 years. That it’s antiquated, with compromises designed to get around discrete political disputes extant in 1787 for 13 states comprising four million people living along the Eastern Seaboard applied to a continental superpower of 330 million, is hard to dispute. And, while we could easily amend the document if there were something that had wild support across the land, the fact that we haven’t done so in half a century* is testament to the difficulty in reaching such a consensus.
As originally ratified in 1788, the Constitution directed state legislatures to elect U.S. senators, and imposed three qualifications to serve. First, senators must be no younger than 30 years old. Second, they must have been a U.S. citizen for nine years or more. Third, they must be “an inhabitant” of the state they represent. This last requirement expressly applies to the candidate “when elected,” while the first two don’t. So a Senate candidate must meet the inhabitancy requirement at the time of their election, but need not meet the age or citizenship requirements until they are sworn in. That’s why Joe Biden could be elected to the Senate at age 29: He turned 30 before he was sworn in.
The snag with Butler is, of course, the “inhabitant” requirement. And understanding it requires some history. As Michael Thorning has pointed out, the Framers deliberately chose the word “inhabitant” instead of “resident” to avoid strict home-state residency requirements for senators. Residency means a person’s primary home and location, the place where they live on a long-term basis. Inhabitance, by contrast, requires some physical presence in a state, but it may be intermittent, interrupted by long absences. As James Madison put it, the term “inhabitant” encompasses people who may leave a state “for a considerable time on public or private business.”
My take is a bit different. In 1787, everyone knew perfectly well what it meant to be a “resident” of a state, especially in the context of a prospective US Senator. We were considerably less mobile in those days, after all, and the aristocratic class tended to be large landowners. Further, because the state legislature appointed Senators, the requirement was almost pro forma. They were naturally going to pick someone with deep ties to the state who they could be confident would represent local interests.
It is unclear whether Butler satisfies even this more limited inhabitance requirement. She currently lives in Silver Spring, Maryland, where she moved to work at Emily’s List in 2021. Newsom’s office says she owns a house in California and that she intends to re-register to vote there before her swearing-in—which suggests she has voted in Maryland for the past two years. In federal filings, Emily’s List identified Butler as living in Maryland from September 2021 through August 2023.
The best way for Butler to nip this problem in the bud would be to take a quick trip to California before Tuesday, where she can re-register to vote in person and signal her intention to remain in the state long-term. This physical presence in the state would surely satisfy the Constitution’s inhabitance requirement. Even if Butler were not an “inhabitant” of the Golden State when Newsom announced her appointment, she would regain her inhabitancy status with this homecoming. If she doesn’t have time for an in-person trip, she could start planning a move back to her California home, or begin the application process for a California driver’s license. Such actions indicating her intent to return to the state and remain there could plausibly suffice to reestablish residence.
This is another instance where the concepts of “residence” are simply different than they were at the time of the framing. First, it would have been damned near inconceivable for someone of the political class to move out of state to take a job outside of military service or elective office. Second, we now have overlapping laws, with different residency requirements for different things. It’s much easier to move to a new state and get eligibility to put kids in the public schools or register, obtain a driver’s license, or vote than to pay in-state college tuition. And different states have different requirements for things like running for public office.
But there’s a weirder question lurking beneath the surface here: Does Butler even need to be an inhabitant of California to represent the state in the Senate? You might think the obvious answer is yes. It isn’t.
The confusion here derives from both the original Constitution and the 17th Amendment, which was ratified in 1913. That amendment revoked state legislatures’ authority to pick senators, instead empowering voters to elect senators directly. It also carried over a rule from the original Constitution governing Senate vacancies: The “executive” (governor) of a state may appoint someone to fill them. Everyone agrees that the first two requirements—age and citizenship—apply to these appointees. But what about the inhabitance rule? Remember, that applies at the time of a senator’s election. But appointees aren’t elected! So does the rule apply at all?
Law professor Stephen Sachs, a fair-minded conservative, argues yes. Sachs points out that the Constitution said senators were “elected” when chosen by a state legislature, indicating that the term has a capacious meaning that stretches beyond the “general citizenry” casting their ballots. In this context, he asserts, the word “elected” must mean the “whole process of official choice,” whether made by a governor, a legislature, or the people at large. If Sachs is correct, then Butler will be “elected” when Newsom formally appoints her by signing a certificate of appointment. And if Newsom already signed that certificate, Sachs claims, he should summon her to California and re-sign it once she has established residency. Only then would the qualification problem disappear.
Sachs’ strongest argument for this theory is that otherwise, a governor could appoint an inhabitant of any state to fill a Senate vacancy. “The Constitution might have had good reason for wanting Senate candidates to be state residents,” he writes—chiefly, a desire to ensure that “the interests of each state’s residents receive equal representation.” That does sound like a good idea. But if it’s so important for every senator, elected or appointed, to inhabit the state they represent, why doesn’t the Constitution actually say that? Why, instead, does the inhabitance requirement apply only to “elected” senators by its plain text?
Again: because it would simply never occurred to the Framers that this would be an issue. A state governor would never have even considered appointing someone to the Senate who wasn’t a died-in-the-wool member of the state’s aristocracy. Our sense of residency—and, indeed, of what constitutes the political class—has changed beyond the recognition of the Framers.
There are surely plausible arguments in the other direction. Maybe the Framers of the original Constitution and the 17th Amendment didn’t want to limit the pool of potential appointees by adding yet another qualification for Senate service. (They certainly took care to keep the list short.) Maybe they entrusted governors to appoint a senator who would represent the state’s interests and didn’t think it was worth enshrining that principle in the Constitution. (These appointments are, after all, only temporary.) Maybe they felt a state’s political process would be sufficient to deal with a governor who chose an out-of-state appointee, entrusting the people to vote him or her out of office. (This deference to decisions made by a state’s elected officials and voters would promote the same federalist principles that Sachs highlights.) Or maybe the Framers of these constitutional provisions just never contemplated this question at all.
Again almost surely the last.
And would that be so surprising? The Framers didn’t seriously contemplate a vast range of issues that dominate political debates today, or never reached a consensus. None of them knew what a “direct tax” was, yet they restricted it anyway, and the Supreme Court may soon preemptively kill a wealth tax on the grounds that it is “direct.” The Framers don’t seem to have thought much about state courts’ power to regulate federal elections, or about rudimentary aspects of habeas corpus. On disputes about the meaning of “equal protection” and “liberty”—affirmative action, women’s equality, reproductive rights, marriage—they provided no explicit guidance. The 14th Amendment ostensibly bars insurrectionists from holding public office, but we still have no idea how that ban should operate in practice.
That the Framers didn’t anticipate issues that would arise several generations after their internment just isn’t shocking. For that matter, the fact that the original text doesn’t answer questions about things that we’ve changed in practice (the Electoral College serving as an indirect ratification of a popular vote rather than a selection by the state legislatures) or actual amendment (the direct election of Senators) is hardly their fault.
The Constitution does not have all the answers. And when we pretend it does, we empower unelected judges to make up the answers and attribute them to the infinite wisdom of long-dead Framers.
Honestly, I don’t know who it is that pretends that the Constitution “has all the answers.” Rather, some of us think that we should either follow it, amend it, or replace it.
It’s fortunate, then, that the Constitution does empower the Senate—and not the courts—to judge the qualifications of “its own members.” When a would-be senator’s qualifications are contested, the Senate must decide, by a vote, whether to accept them. Even with one vacancy, Democrats hold a small majority in the chamber, and they can overrule any GOP objections to Butler and seat her on Tuesday. By doing so, they will effectively resolve this constitutional quandary in Butler’s favor. The text of the Constitution may not offer a definitive answer here. But the people and their representatives still can.
One suspects Stern would be less sanguine about the majesty of the people’s representatives if we instead had a Republican majority refusing to seat Butler on a technicality.
UPDATE (4:13pm): Butler was sworn in about an hour ago. It doesn’t appear that the issue was even seriously raised.
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*As a technical matter, the 27th Amendment, restricting increases in Congressional compensation, was ratified in 1992. But it’s a complete fluke, a part of the original Bill of Rights proposed in 1789 and ratified in a highly dubious manner more than two centuries later. The 26th Amendment, lowering the national voting age to 18, which was passed by Congress in March 1971 and ratified in July 1971, is the most recent “new” amendment.
And Hawley doesn’t live in Missouri, and Tuberville doesn’t live in Alabama.
Have a nice day.
A quite easy matter given it’s California which works 24/7 to ensure residents, inhabitants, people who visit to long, pay state income tax. So, did she pay CA income tax the last 2 years? Or did she claim she was no longer a CA taxpayer when the revenuers came calling.
As I understand it, she’s a long time CA resident who took a job in Washington overseeing a non-profit. Before airplanes and even well into the jet age it was not unusual for Congressional Reps to only keep a house in Washington and move their families there. It was actually a source of collegiality since their kids went to the same schools, played on the same teams etc
I always wonder — but not to the point of doing the research — about Senators from western states. Especially the older ones. Given that it’s five to six hours flying time, plus transit at each end, it must be enormously tempting to find a place in Maryland or Virginia to actually live, and only return to the home state for the longest recesses.
@JKB:
I must have missed something. Was she the junior senator for California the last two years when I wasn’t looking? Or did you just invent the “last two years” rule as some sort of gotcha?
As I said in the other thread, in California, from the perspective of the Franchise Tax Board, you establish residency when you enter the state with the intention of staying. That’s the sum total of the requirements.
My guess is that she has been filing as a part-year resident for years, counting the days in and out of state, as I did for years.
@MarkedMan:
Exactly. It’s not quite the ‘gotcha’ that … @JKB:
thinks it is.
@Daryl:
And Robert Wexler didn’t live in Florida while he was in the House of Representatives. I remember that well, he was my Congressman at the time.
Don’t like this by members of either party.
@al Ameda: As far as gotcha goes, there is none. She’s not trying to hide anything. This is in contrast to Tuberville, who is just outright and blatantly lying about where he lives.
As an aside, it’s one of the things that I despise about modern Republicans. They seem to consider it some kind of dominance display when they puff out their belly and chest and blatantly lie to your face, something they do with metronome-like regularity (“We are only concerned with the health of the mother!”, “The Hunter Biden thing is evidence of impeachable crimes”, and on and on). I don’t know why they think this makes them the big man, because to me it is what slimy little toads do. To use dated language, it’s unmanly and degrading, something I would expect from a 13 year old wannabe bully. It immediately tells me you are an untrustworthy lightweight, someone to be pushed aside as soon as possible. Just another reason why Alabamians and their actual pride in Tuberville are unfathomable to me. I don’t know how he was as a coach and couldn’t care less (because, c’mon, teenager sports teams!) but as a human being and a man he is at best fourth rate.
@Michael Cain: It used to be quite normal for longterm Reps and Senators to buy a house in DC, Maryland or Virginia, move their family there and eventually retire in the district. I don’t consider it a negative, and feel it is much healthier than what people do now: leave their families for months at a time and live in shared apartments that seem to turn into drunken frat houses. In my mind we are hiring a Rep or a Senator to do a specific job, one that predominantly takes place in Washington DC and it should be up to them to organize their living arrangements as they best see fit. It’s one thing for Joe Biden to go back to Delaware on the train ten minutes from the Capitol, where you can walk up 30 seconds before departure and still get on, and a completely different thing from some poor sole who has to drive through rush hour traffic to get to Dulles and then make one or two connections trying to get to Seattle, and then a couple of hour drive over the mountains if you are repping the dry side of Washington DC. It’s essentially a full day of travel either way.
@Daryl: @MarkedMan: @Michael Cain: I do think these are separate issues, although mostly non-issues.
Alabama law essentially requires that you “live” in the state for at least a day and has no requirements to maintain a domicile in the state while serving in Washington. So, Tuberville–who sold all but one of his Alabama properties since getting elected—seems to be in the clear.
Hawley was living in Missouri for years, first as a law professor at the state flagship and then as state AG, before getting elected to the Senate. He lives full-time in the DC area with his family but claims his sister’s house as a “residency.” He also owns a piece of property along with his parents and I gather both are in the process of building houses on said property. I have no idea what Missouri law is but gather that no state requires that you actually “live” there while serving in Washington.
Butler is currently not a US Senator and has been living in the DC area for two years. There’s some legal question as to whether she’s a California resident. I’d say she rather clearly isn’t. But it’s a technicality, in that there’s no way the majority Democratic Senate refuses to seat her.
@MarkedMan: Along the same lines, there’s the matter of time in office. If I’ve done the arithmetic right, if Michael Bennet finishes his current term, he will become the longest-serving US Senator in Colorado history.
@James Joyner:
Just to be clear, this particular reason I despise Tuberville has to do with his lying about living in Alabama when he was running, not whether he met some legal standard
I would opine that the requirement does not apply, since she is not being elected. This is not the normal procedure, but a stop-gap temporary one. One might imagine this happening in a different era, as a way to get someone into the Senate role quickly for an important vote rather than taking a 3-week train journey or a 3-month boat ride.
And, she has lived in the state for a long time. I say she’s not all that different from the aristocrats you describe in those olden days. It’s just that instead of “aristocrat” she belongs to a particular political group.
Tuberville’s residence doesn’t bother me that much either, other than as a demonstration of a double standard.
It’s funny how the issue of Constitutional interpretation reverses on a dime depending on whose Ox gets gored and not on principle.
For me, I am universally skeptical of these technical gambits that are rooted in attempts to gain political advantage.
She’s legitimately appointed. End of story IMO.
I disagree, I think the standard should be that anyone holding an office should be qualified to run for that office.
Looked at another way, there is no requirement in the Constitution that states that a VP be a natural-born citizen. But given the line of succession, we’d naturally assume that a VP would need to be a natural-born citizen.
Or, to recast this same argument in a scenario that would be incredibly unlikely, let’s say a Presidential candidate chose a running mate who, although a natural born citizen, lived outside of the US for much of the last fourteen years, either working in a global company or maybe as an ambassador.
The Constitution requires that a President be “fourteen Years a Resident within the United States.” If the VP is not qualified to assume the presidency, having not been “fourteen years a resident” can they actually hold the office?
(This is more a matter of being consistent in my thoughts/arguments. I argued a few weeks ago that if Trump isn’t qualified to hold office, he’s not qualified to run for it either.)
Edited to add: I think the fact that she’s been a longtime resident of CA and moved to Maryland for the Emily’s List job–as MarkedMan pointed out–is the more salient fact than her current housing situation. /shrug
@Jen: Well, I suspect that the business where she doesn’t live in CA any more was seen by Newsom as a positive, as it reinforces the narrative of “I’m not interfering in the primary”. I think if she were to run for the office, where she lives becomes much more salient.
This issue of who’s a Californian or not kind of calls into question the whole idea of Federalism. I’m a citizen of the country, I’m at best a resident of FL. And except for a bit more concern about beach maintenance issues, none of my interests are different than they were in OH.
From what I’ve seen today, whether she’s eligible comes down to whether 51 senators, or 50 plus the veep, vote that she is.
@JKB:..revenuers…
Maybe JKB can tell us when his boyfriend Trump will release his tax records.