[Note: This is the tenth and hopefully the last – at least for now; we won’t promise that we won’t ever write more on this topic! – in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first nine essays can be found here, here, here, here, here, here, here, here, and here.]
Since final fall, when our article The Sweep and Drive of Part Three was accepted for publication by the College of Pennsylvania Legislation Assessment and first posted on SSRN, we now have obtained additional feedback and options concerning the draft and brought them into consideration as we now have gone by the enhancing course of. As famous on the outset of this sequence, none of those feedback has led us to rethink and alter our core substantive propositions in a serious manner. Because the article goes to press within the subsequent few weeks, it stays very shut in substance to the variations from final fall. (We’re grateful for all of the feedback and options, and particularly thank all who recognized errors within the manuscript.)
We have now made only one extra significant substantive change since September, which we want to word publicly earlier than the article is printed. Although the article is about to seem in print someday this month, it won’t beat the Supreme Courtroom’s resolution in Trump v. Anderson to press. Certainly, it’s a small irony that though our article was written and posted earlier than these lawsuits had been filed (and with no contemplation of quick litigation) the Supreme Courtroom would possibly nonetheless win the race to publication, leaving some elements of our article probably overtaken by occasions. (We’d strongly resist, nevertheless, any notion {that a} legislation evaluate article turns into “moot” in consequence of a Supreme Courtroom resolution! Our views stay our views, and stay right, or not, whether or not the Supreme Courtroom embraces them, or not.)
In any respect occasions, if we don’t point out a substantive change within the content material of the article now, no one would possibly ever discover it. (Or, equally troubling, individuals would possibly discover and suppose we surreptitiously altered the manuscript, simply earlier than publication, to take account of the Courtroom’s resolution.)
The change happens starting within the place of the draft that occupies pages 32-33 of the model now posted on SSRN. We’re discussing the assorted conditions through which completely different governmental actors would possibly possess duties or powers that present event for utility of Part Three as a authorized rule. In the midst of contemplating sure “Special Situations” (p. 29), we take into account who all might need authority to implement Part Three with respect to the constitutional ineligibility of a person for the workplace of President of the US. We argue that state election officers, courts, and presidential electors all have the duty to faithfully apply Part Three’s constitutional disqualification rule, every throughout the sphere of its respective powers and duties underneath state or federal legislation.
We then flip to this query: Does the Twelfth Modification (and related federal legislation), by offering for a joint session of Congress through which the votes of electors for President and Vice President, transmitted sealed to the seat of presidency, are then opened and counted, implicitly confer upon Congress authority to not depend votes solid for a candidate who’s constitutionally ineligible by advantage of Part Three of the Fourteenth Modification.
Within the model of the article posted on SSRN, we acknowledged categorically that the reply was No: Congress possesses no energy to reject on substantive grounds votes truly solid by electors (versus an influence to find out the authenticity of the submitted votes; that’s, whether or not the votes to be counted had been truly the votes solid by the electors of the state).
Whereas we now have not modified our final conclusion – we nonetheless imagine that the higher reply is that Congress at the moment lacks a substantive energy to judge the propriety of votes solid by electors – we now have modified the extent of certainty with which we categorical this conclusion. And we now have additionally set forth at better size the competing arguments on either side. We have now turn into persuaded by many discussions that the argument for an implied energy of the joint session of Congress to say no to depend electoral votes solid for a constitutionally disqualified candidate is at the very least believable, though we finally disagree with it.
Right here is how the textual content of our article now reads on this level, as scheduled for publication someday very quickly. (We have now omitted the footnotes):
If the voters and presidential electors do choose a constitutionally disqualified candidate for the Presidency, does Congress have the ability –maybe even the obligation – to reject such a candidate when the votes of electors are counted in joint session referred to as for by the Twelfth Modification? That is an unsettled query and we’re, candidly, unsure of the reply.
On the one hand, the textual content of the Twelfth Modification doesn’t in phrases confer a energy on the joint session of Congress to evaluate the propriety, authorized or in any other case, of the votes solid by electors. The duty to depend the votes solid isn’t solid by way of an influence to decide the validity of such votes. Certainly, even the function of counting is formulated in a (very) passive voice: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That is hardly the language of affirmative energy to evaluate, consider, or determine. It contrasts reasonably sharply with the Article I energy of every home of Congress to “Judge of the Elections, Returns, and Qualifications” of “its own Members.” Additional, the Twelfth Modification particularly limits Congress’s function in choice of the President to the ability of the Home of Representatives to “choose immediately, by ballot, the President,” from the three individuals receiving the very best variety of votes, solely “if no person have such majority [of the votes of the whole number of Electors appointed].” To the extent an influence to evaluate the constitutional validity of votes submitted by electors would possibly verge on a sensible energy of the joint session to pick out the President be selective counting of votes, it subtly infringes on the Twelfth Modification’s constitutional design.
Alternatively, maybe such an influence to implement Part Three’s disqualification could be inferred from constitutional construction and historical past. The argument would go like this. As a result of Part Three is binding on all officers exercising powers or duties that contain questions of election to, appointment to, or continuance in workplace of individuals who’re constitutionally disqualified by Part Three from holding such positions. A case could be made that the logic of this precept—buttressed by the duty of the oath to the Structure sworn by the individuals exercising duties affected by Part Three—implies that Congress, sitting in joint session pursuant to the Twelfth Modification, has a constitutional duty to refuse to accede to the election of an individual for president who’s constitutionally disqualified from holding that workplace. Furthermore, one other provision of the Structure, the Twentieth Modification, is specific {that a} disqualified candidate doesn’t turn into president, even when he has probably the most votes. It states that at “the time fixed for the beginning of [the President’s] term,” “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The language thus particularly confirms the potential for a failure to qualify and specifies the implications of that failure. If the President-elect is roofed by Part Three, he can’t turn into President–until Congress chooses (by supermajority votes) to take away Part Three’s incapacity. If this prohibition isn’t enforced in the course of the counting of the electoral votes in joint session, then when would it not be enforced, and by whom?
Furthermore, think about the state of affairs the place a presidential candidate receiving a transparent majority of votes solid of electors engaged in plainly constitutionally disqualifying acts of revolt or insurrection between the time when electors solid their votes and the time for starting his or her time period. Once more, and much more emphatically, if Congress can’t decide that such an individual can’t constitutionally turn into President, who can? Should Congress nonetheless pliantly accede to the election of such individual as President? (Or, as truly occurred in 1872, what if a presidential candidate has died between election day and the day prescribed by legislation for votes of electors to be counted? Should votes for a useless man to be president be counted? In 1872, Congress mentioned no, refusing to depend solid votes for Democratic presidential candidate Horace Greeley as a result of he had died between election day and the assembly of the electors.)
Lastly, Congress has enacted two statutes, the Electoral Depend Act and the Electoral Depend Reform Act. These statutes have been on the books for 137 years and assume that Congress has some function, albeit restricted, in judging the validity of electoral votes. They’d probably implicate Congress’s powers underneath the “necessary and proper” clause as properly. Even when these statutes are constitutional—that’s, even when Congress does have a substantive energy to reject votes for a disqualified candidate—there’s a further query whether or not the present statutes permit it to take action. (This activates the which means of the phrase “regularly given,” and we take no place on it right here.)
On stability, we’re inclined to suppose the stronger argument is that neither Congress nor the Vice President (performing as President of the Senate) has the authority to judge the selections or actions of the electors themselves (versus maybe figuring out the authenticity of submitted votes).
However we confess to some uncertainty right here. If the Structure doesn’t provide a transparent, determinate reply, the assorted branches of presidency are constitutionally entitled every to train their very own unbiased constitutional judgments on the query. Thus, even when state election officers, voters, electors, and the judiciary all assist (or acquiesce to) the election of a president barred from holding workplace by Part Three, there’s a severe argument that Congress would possibly act as a final constitutional backstop towards the set up of such a constitutionally disqualified individual within the presidency.
We predict the principle impact of this revision is solely to not overstate the understanding of our assertion that the Twelfth Modification doesn’t give Congress energy to evaluate the substantive propriety of votes solid by electors. The difficulty is harder than we initially thought, and there could also be separation-of-powers implications that should be extra absolutely explored.
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With that, we conclude this sequence of essays responding to objections made towards our interpretation of Part Three, whether or not on coverage or authorized grounds. A short recap (with hyperlinks to every prior essay):
Our first essay launched the sequence, and the explanations for it.
Our second essay responded to the objection that imposing Part Three would intervene with “democracy.”
Our third essay responded to the objection that imposing Part Three could be too “dangerous.”
Our fourth essay responded to the argument that federal prison prosecution and conviction for revolt underneath 18 U.S.C. §2383, is one way or the other a prerequisite to Part Three’s constitutional rule of disqualification.
Our fifth and sixth essays addressed the misuses of legislative historical past employed by some critics and advocates to counsel that Part Three won’t be self-executing, won’t apply to the workplace of President of the US, or won’t apply to insurrections after the Civil Battle.
Our seventh essay mentioned why Part Three points should not nonjusticiable “political questions.”
Our eighth essay addressed the “off ramp” argument {that a} legally disqualified candidate should nonetheless be positioned on the poll, state legislation however, as a result of Congress theoretically would possibly at some point relieve the incapacity.
Our ninth essay mentioned why, within the Trump v. Anderson case, it’s important that there was a full trial of disputed problems with truth, leading to findings of truth by a trier of truth.
And on this, our closing essay on this sequence, we defined our present interested by Congress’s powers underneath the Twelfth Modification and federal legislation, acknowledging a better diploma of uncertainty than our posted draft had beforehand expressed.