By Salvator R. Tarnmoor.1

Through an unusual series of events, the author has come into possession of a copy of The Constitutions of the United States: The First 500 Years, publication date 2276 Anno Domini. There follows an excerpt from Chapter 14, on the allocation of authority in the Fourth American Republic.

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The Constitutional Crisis of the 2030s finally settled the purely ceremonial character of Congress, and at the same time repudiated the judicial overreach of the Warren and Roberts courts. The Fourth Constitution of the United States would no longer permit the elected House and Senate to present proposed legislation for the President’s signature or veto, and neither would it permit a panel of nine appointed justices to purport to judge the legitimacy of presidential actions. But neither did the President of the Fourth American Republic exercise untrammeled authority, despite his new honorifics of Defender of the People’s Health and Voice of the Living Constitution. Rather, through a peculiar series of institutional transformations, a new representative body emerged, itself lacking the power to enact laws, but empowered to exercise a veto over presidential legislation.

In its mature form, the system worked as follows. First, the President would promulgate a new law, styled as an Executive Order (“EO”). Then the ball was in the court of a body of representatives appointed by the governors of the various states; students of comparative constitutionalism will note the resemblance to how senators were selected under the first American Constitution and (in theory at least) for the first half of the second. These appointed representatives would caucus among themselves regarding whether to veto the EO. If at least a third of the representatives agreed to exercise the veto, they would co-sign an open letter to that effect. The legal force of the EO would then be suspended unless an equal or greater number of representatives co-signed a second open letter indicating the contrary intent. Upon the signing of such a letter, the EO would take permanent effect. If no such letter were signed within a month, the EO would be terminated. This new representative body, which never convened in person and so cannot properly be called an assembly, was titled the Groupchat of Solicitors General (“SGs”).

The title gives a hint as to the new system’s origins. The waning days of the Third American Republic had witnessed a multiplicity of lawsuits–sometimes brought by private parties, sometimes by the governors of states dominated by a rival political party–seeking to enjoin the President. For obscure formal reasons these suits began in the district court, and made a brief pit stop in the court of appeals before escalating via the so-called “rocket docket” up to the so-called Supreme Court. There coalitions of state SGs would file documents styled, for example, “Brief of 17 States in Support of Petitioner” (which is to say, attempting to veto the EO), or “Brief of 22 States in Support of Respondent” (which is to say, negating the attempted veto). At first these so-called “briefs” were dozens of pages long and contained copious legal argument directed at the sitting justices, who purported to wield the power of Judicial Supremacy to decide whether the EO was permissible as a matter of law and policy. But after the Crisis, the Supreme Court’s role was reduced to the mere formality of verifying the SGs’ signatures and tallying the number of states on each side. And the briefs became brief indeed, little more than a list of signature blocks.

Some revisionist legal historians have suggested that this diminishment of the Supreme Court’s role was merely customary, and that the Court retained the authority, albeit never exercised, to find an EO to have been vetoed–as the traditional language puts it, to reverse the decision of the court of appeals staying the preliminary injunction entered by the district court against the EO–even if more states supported the EO than opposed it. It is true that the authority of the Groupchat of SGs was nowhere enshrined in an authoritative legal instrument. But the revisionist position is nevertheless untenable. Legal commentators of the mature Fourth American Republic considered this proposed interpretation of the Supreme Court’s authority and uniformly rejected it. These commentators recognized the unfairness of allowing an EO to come into effect when 26 high-population states opposed it and 27 low-population states supported it; indeed, the loss of any mechanism of proportional representation was seen even at the time as one of the Fourth American Republic’s major failings. But these commentators were also unanimous in their view that any justice who sought to usurp the Groupchat’s role in deciding whether to veto the EO would be guilty of treason. Given the impeachment proceeding and subsequent treason prosecutions that inaugurated the Fourth American Republic, it is unsurprising that none even attempted such a usurpation.

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