The Constitution grants enumerated powers to officials and agencies of the federal government. But as I pointed out in a column six years ago, the Constitution also grants powers to persons and entities outside the federal government. These persons or entities include (1) state legislatures as free-standing assemblies, (2) the state legislative apparatus as a whole, including the legislature, the governor’s signature, and the initiative and referendum process, (3) state conventions, (3) state governors, (4) voters in federal elections, (5) jurors in federal courts, (6) presidential electors, and (7) the “convention for proposing amendments.”
When those persons or entities exercise constitutional powers, the courts say they are carrying out federal functions. Authority to exercise these federal functions ultimately comes from the Constitution rather than from federal or state law. Thus, with some exceptions, neither state nor federal law can manipulate how a non-federal actor carries out a federal function.
The exceptions are listed in the Constitution. For example, Article I, Section 4 authorizes Congress to override state legislative regulation of congressional elections. Congress’s power to “constitute [set up and regulate] Tribunals inferior to the supreme Court” gives it some authority over jury rules. Several amendments grant Congress power to protect individual rights.
Other rules pertaining to these federal functions are fixed by the Constitution. The courts deduce those rules from the text and history of the document.
Most lawyers—even most law professors—are unaware of this special area of constitutional law. This is because, like most of the Constitution, the subject is not taught in law school.
This ignorance has led to some common mistakes. For example, the current National Popular Vote movement is based on the misconception that state legislatures may undercut the Constitution’s presidential election/Electoral College mechanism. Also, some claim state legislatures or electorates may manipulate the amendment process by using their Tenth Amendment powers: The now-moribund “Compact for America” proposal was based on this false premise, which the courts have rejected repeatedly.
Still another mistake is that because an amendments convention executes a federal function, Congress can control it. But as just noted, the rules and protocols for carrying out federal functions come from the Constitution, not from Congress.
I recently completed an article summarizing the law of federal functions exercised by non-federal actors. It will be published later this year by the University of Pennsylvania Journal of Constitutional Law. Here it is, together with a link:
Federal Functions: Execution of Powers the Constitution Grants to Persons and Entities Outside the Federal Government, 23 U. Penn. J. Const. L. (forthcoming, Fall 2020).
