This article first appeared at The Originalism Blog. It is quite technical, but I include for those interested in the details of constitutional law.
I’ve become known among state lawmakers for my contributions to the popular press and as a member of the board of scholars for a legislative trade organization. So I should not have been surprised when, in the aftermath of the November 3, 2020 presidential election, I started getting calls and emails from state lawmakers and their associates in those states where the apparent results were disputed.
They had been receiving multiple reports of serious voting irregularities. By “reports” I don’t mean the claims of the Trump campaign. I mean statements from constituents about what they had seen on the ground. These statements seemed reliable enough to outweigh media efforts to dismiss them.
“We may have a mess,” they said. “What, if anything, can we do about it?”
The usual answer from their legislative counsel seems to have been: “Nothing.” Counsel told lawmakers that because the popular vote was over and the results had been (or were about to be) certified, the choice of presidential electors was a fait accompli. Moreover, in all states with disputed presidential elections, the governor (whether Republican or Democrat) opposed legislative response. Lawmakers were told, “The governor is not going to call you into session. And even if the state constitution allows you to call yourselves into session, the governor will veto anything you try to do.”
However, this advice was erroneous.
In fact, lawmakers could have called themselves into session, whether the state constitution authorized it or not. They could have acted without the governor’s cooperation. They could have (1) investigated to ascertain whether there were serious irregularities and, if so, their likely effects, (2) called a re-vote for presidential electors, or (3) chose the electors themselves. The only caveat was that any new slate of electors would have to be chosen before the constitutionally-authorized federal deadline of December 14—the day designated as the time presidential electors cast their ballots.
This post builds on that episode to develop three principal points:
* There is a significant, but little-understood field of law governing the exercise of constitutional power (“federal functions”) by persons and entities not acting as part of the federal government.
* The rules governing federal functions often are different from those governing other enumerated powers. Neither ordinary legislation nor the Necessary and Proper Clause applies to them.
* A primary reason this field is little understood, including by legislative counsel, is that we don’t teach it in law school constitutional law courses. We are too busy teaching more transient doctrines.
I. Federal Functions.
The Constitution grants enumerated powers to Congress, the President, the Courts, and the federal government per se. (The grants to the federal government are phrased in words of obligation. They appear, for example, in the Guarantee Clause of Article IV and the Debt Assumption Clause of Article VI.) But the Constitution also grants powers to persons or entities acting outside the federal government. The courts refer to the exercise of those powers as “federal functions.” Detailed citation in support of the following discussion is available in my recent article on the subject (pdf).
Some “federal function” grants are to ad hoc entities. By way of illustration, the Constitution grants the Electoral College power to select the President and Vice President. It grants conventions power to propose and ratify amendments.
Other federal functions are performed by state officials. The Constitution gives governors authority to issue writs for election to fill congressional vacancies. It gives state legislatures power to regulate the times, places, and manner of holding congressional elections. It also authorizes state legislatures to force the call of a “Convention for proposing Amendments” and, if designated by Congress, to ratify amendments. Before the Seventeenth Amendment, the Constitution entrusted state legislatures with power to elect U.S. Senators as well.
Additionally, the Constitution bestows power on Congress (acting bicamerally) to propose constitutional amendments and (acting unicamerally) to oversee the count of electoral votes. It grants the House of Representatives (acting under special rules) and the Senate power to conduct run-off elections for the President and Vice-President respectively.
Finally, the Constitution bestows the choice of presidential electors on the states qua states, but authorizes only their legislatures (not, for example, their constitutions or other institutions) to determine the “Manner” in which the choice is made.
The power to exercise a federal function comes directly from the Constitution. Occasionally, the Constitution grants the function to the entire legislative apparatus of a state and contemplates that the function will be exercised by state law. For example, in Arizona State Legislature v. Arizona Independent Redistricting Commission (pdf) the Supreme Court held that the Election Clause grant to set the times, places, and manner of congressional elections is given to the entire legislative apparatus of the state. Thus, it includes any local provisions for initiative and referendum and gubernatorial veto. From an originalist standpoint, this decision probably was correct, because (as far as I have been able to determine) colonial and early state legislatures adopted election regulations by ordinary statute.
Most federal functions, however, are carried out by the person or entity named in the Constitution, acting alone. Thus, in 1798, the Supreme Court held that when Congress proposes a constitutional amendment it does not act in a legislative capacity, so the signature of the President is unnecessary (pdf). Later jurisprudence has extended the same principle to state legislative action in the amendment process. Participating assemblies act pursuant to the Constitution as representatives of the people, without participation by the governor and without mechanisms of direct democracy. Similarly, in 1892 in McPherson v. Blacker (pdf), the Supreme Court compared the state legislature’s power to determine the manner of choosing presidential electors to the legislature’s then-prevailing authority to select U.S. Senators—both of which the legislature could do without regard to state constitutional limitations, such as the gubernatorial veto. Indeed, McPherson held that state legislative power over the choice of electors was “plenary.” (SCOTUS reaffirmed McPherson as good authority in 2020 (pdf).)
In McPherson, the court made it plain that state constitutional limitations on the legislature do not apply to its federal function of determining the manner of choosing electors. In 1922 the Supreme Court, speaking through Justice Louis Brandeis, held that because ratification of a constitutional amendment is a federal function, the governing law is solely federal constitutional law (pdf); state laws and constitutions are irrelevant. In 1982, a federal district court held that Congress’s Article I lawmaking power is likewise irrelevant to the amendment process (pdf).
II. The Necessary and Proper Clause, the Electoral Count Act, and the 2020 Election
A number of legal writers, including Professor Michael Ramsey in his excellent recent commentary on the Electoral Count Act, have assumed that the Necessary and Proper Clause grants Congress power to regulate federal functions. But consideration of the foregoing principles shows that this is not so. The Necessary and Proper Clause authorizes Congress to make “Laws.” If federal functions are governed directly by the Constitution and not by federal laws, the Clause is inapplicable on its face. Moreover, the Clause applies to the “Government of the United States” and to its “Department[s]” and “Officer[s].” State legislatures, governors, the Electoral College, and independent conventions are not “Departments” of the federal government. Nor, really, is Congress when it acts in the amendment process or in a joint session for counting electoral votes. It exercises those functions as an independent assembly.
In 1975, John Paul Stevens, who was just about to ascend to the Supreme Court, chaired a three-judge district court panel in a case called Dyer v. Blair (pdf). The issue was the validity of the Illinois legislature’s ratification of the Equal Rights Amendment. I commend this case as a source of federal function law. Justice Stevens’ most relevant point for our purposes is this: When a legislature or convention exercises a federal function, statutory law on the subject is advisory only. The assembly may choose to comply with it, and that choice may be inferred from the assembly’s action. But the assembly is not required to comply with it.
It follows that the Electoral Count Act is unconstitutional as a statute. It is valid only as a recommendation to the joint session of Congress, which may opt to follow or disregard it.
As for the 2020 presidential election, federal function law makes it clear that the legislatures in states with disputed presidential election results could respond as independent assemblies. They didn’t need the governor to call them into session. They could call themselves into session. They didn’t need the governor to sign their bills. They didn’t need the governor at all.
By the time state lawmakers learned this, however, it was too late to pursue most of the options they otherwise could have pursued.
III. A Failure in our Constitutional Law Courses
The realm of federal functions is an important area of constitutional law. It governs the amendment process. It governs, in large part, our presidential elections. It governs, to a certain extent, our congressional elections. But I’ve never heard of the subject being addressed in a law school constitutional law course. Perhaps a reader can tell me of one. Is it any wonder that state legislative counsel were ignorant of it?
One reason we exclude federal functions from constitutional law courses is what we include. If the available law school case books are any measure, we spend an average of two-thirds of our course time on only two percent of the Constitution—that is, on the First Amendment and on Sections 1 and 5 of the Fourteenth Amendment. Perhaps this is because we feel comfortable with the “common law”-type methodology the Supreme Court has imposed in those areas. Or, just as likely, it is because law professors like to talk about race, sex, and porn—or believe their students do.
Whatever the reason, I think it is perverse to spend so much class time on areas of recurrently-shifting jurisprudence, while neglecting constitutional principles that are just as central and far more enduring.
I retired from law teaching in 2010. Sometimes (although admittedly not often) I think I’d like to do it over.