The Fallacy of Judicial Supermajority Clauses in State Constitutions

Abstract

In 2008, when TransCanada proposed to route its Keystone XL (KXL) pipeline route through the heartland of the United States, it likely did not believe the proposal would generate much attention. After all, it already had another pipeline running through Nebraska and several other affected states. The thought that the Keystone XL project would be at a standstill seven years later seemed unfathomable. The possibility that a rarely invoked constitutional supermajority clause would play a key role in the controversy seemed equally unlikely. By 2012, vehement opposition to KXL had arisen, both nationally and locally. Even so, LB 1161 allowed “major oil pipeline” carriers to bypass the Public Service Commission and receive approval directly from the governor to exercise eminent domain. Landowners challenged the law as an unconstitutional delegation of power. The district court agreed. By the time the dispute reached the Nebraska Supreme Court, it appeared the case would definitively decide LB 1161’s fate and, possibly, the fate of KXL as well. However, the manner in which the court eventually decided the case did not resolve the nondelegation issue. Four out of seven judges found LB 1161 unconstitutional, but, invoking a moribund constitutional provision, the Supreme Court dismissed the lawsuit due to Nebraska’s judicial supermajority or “five judges” clause. Only two other states — Ohio and North Dakota — have adopted judicial supermajority clauses, and Ohio’s has been repealed. This essay examines the impact of such clauses and demonstrates how they allow statutes like LB 1161 to evade judicial review and thereby prevent important constitutional issues from being resolved on the merits. When the delegates in Nebraska, North Dakota, and Ohio adopted their supermajority clauses in the early 20th Century, the protection of the common citizen was arguably at the forefront of their minds; perversely, in effect, these states have hobbled the judicial branch and disrupted the system of checks and balances.

As this essay goes to press, President Obama has exercised his power over transboundary pipelines to disapprove KXL and Transcanada has taken the dispute to a NAFTA tribunal and a federal district court, but the nondelegation issue raised by judicial supermajority clauses remains relevant.

Keywords: Keystone XL; Transcanada; Judicial Supermajority; Nondelegation; Progressive Era; Populist; William Jennings Bryan; Eminent Domain

JEL Classification: K23, K32