The Constitution Will Survive Covid-19

By David B. Rivkin Jr. and Lee A. Casey

Nov. 27, 2020, in the Wall Street Journal

The Covid-19 pandemic “has served as a sort of constitutional stress test,” Justice Samuel Alito observed this month. “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” The setting underscored the point: Justice Alito made his remarks in an online speech that ordinarily would have been delivered in a cavernous hall, before a crowd of hundreds gathered for the Federalist Society’s annual dinner.

A public-health emergency may justify curtailments of liberty that would be unacceptable in normal times. But even in an emergency, America’s government doesn’t wield unlimited powers. Measures taken to deal with this pandemic have imposed severe restrictions on the most basic rights and liberties, often with little consideration of their legal basis. The U.S. Constitution prohibits many of the most draconian measures taken or under consideration.

Joe Biden has implicitly acknowledged the point. Accepting the Democratic presidential nomination in August, the former vice president declared: “We’ll have a national mandate to wear a mask—not as a burden, but to protect each other. It’s a patriotic duty.” But his transition website promises only to “implement mask mandates nationwide by working with governors and mayors.”

A federal mask mandate is a nonstarter because it would have to be grounded in one of Congress’s constitutionally enumerated powers, all of which have limits. The go-to section to justify federal regulation is the clause granting lawmakers the power “to regulate commerce . . . among the several states.” As the Supreme Court held in National Federation of Independent Business v. Sebelius (2012), which involved the ObamaCare mandate to buy medical insurance, individuals must be engaged in commercial activity before Congress can regulate them. Congress cannot impose requirements on the citizenry “precisely because they are doing nothing,” Chief Justice John Roberts wrote.

The same is true of other prospective federal anti-Covid measures, such as a national “stay at home” order or an overall economic lockdown. Congress does have broad authority to regulate business, which it could use to impose workplace safety rules, including mask mandates. But nationwide lockdowns are a dubious legal proposition. Congress has never attempted to eliminate all or most economic activity. Any such requirement, even if supportable under the Commerce Clause, would raise significant concerns about the constitutional rights of people prevented from earning a living.

State and local mandates pose a more complicated question. Unlike the federal government, states have a general “police power” that permits them to enact public-health regulations. State and local mask mandates will likely survive judicial scrutiny, as the burden is relatively small. But quarantine requirements imposed on otherwise healthy people, and especially stay-at-home orders and shutdowns of economic activity, are another matter.

Courts have generally upheld quarantines as proper exercises of state police power. But they have traditionally required the involuntary seclusion only of infected individuals and those exposed to them. Quarantines for travelers may survive constitutional challenges. They are generally limited to 14 days or less and arguably supported by the states’ interest in limiting the potential to spread the infection from viral “hot spots.”

But states have no constitutional authority to discriminate against out-of-state persons, goods or services or to burden interstate commerce unduly. It would be hard to justify restrictions that draw arbitrary distinctions between intra- and interstate travelers or among states. New York’s current rules, for instance, exempt travelers within New York and from adjacent states while ordering quarantine for those from distant states with lower Covid rates.

Universal, open-ended stay-at-home mandates and general economic shutdowns are unprecedented in America. The former amount to the imposition of house arrest on vast numbers of people without due process or any provision for basic needs. They raise important constitutional issues involving freedom of assembly, due process and equal protection.

Mandating how many individuals can meet in one’s home, as some states did in time for Thanksgiving, is particularly difficult to justify. If the government can regulate your dinner guests, what can’t it do? Although the government has imposed location-specific curfews in times of war and civil disorder to address specific public-safety concerns, protracted populationwide curfews directed at more-nebulous threats will be difficult to justify.

Some of these issues will doubtless reach the Supreme Court, but lower courts are already wrestling with them. In County of Butler v. Wolf, William S. Stickman IV, a federal district judge in Pittsburgh, struck down Pennsylvania’s most draconian anti-Covid-19 measures. These included strict limits on indoor and outdoor gatherings, stay-at-home requirements, and the lockdown of businesses that aren’t “life-sustaining.” Judge Stickman found these measures wanting on First Amendment, due-process and equal-protection grounds, even under an “intermediate” level of scrutiny.

“A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists,” Judge Stickman concluded in his September decision. He took particular note of Pennsylvania’s diversity of communities—and hence of Covid risks—as against the state’s “one-size fits all approach” to stay-at-home orders, which were not in any way tailored to minimize the burden while achieving the government’s legitimate ends.

Judge Stickman concluded that Pennsylvania’s business lockdown requirements failed to meet even the lowest level of constitutional scrutiny—being rationally related to a proper state purpose. He noted that the state had not articulated “a set, objective and measurable definition” of “life-sustaining” businesses, and that its requirements arbitrarily favored large retailers over small ones. Pennsylvania has appealed Judge Stickman’s decision, but it is difficult to see how the state can defend such capricious and comprehensive restrictions. The same goes for other states: Such details as closing health clubs but not beauty salons (New York), or imposing restrictions on the use of sailboats but not motorboats (Michigan), appear driven not by any rational basis but by government officials’ aesthetic and ideological preferences.

No doubt some judges will be inclined to defer to government officials in an emergency. Five Supreme Court justices did so earlier this year when churches in California and Nevada sought to enjoin state orders limiting the number of worshipers at services. In both cases, Chief Justice Roberts voted with the court’s four Democratic appointees to deny immediate relief.

But the other four justices dissented in both cases on the grounds that the orders violate freedom of religion by imposing greater limits on religious activities than comparable secular businesses, including casinos. As Justice Alito quipped during his Federalist Society speech: “Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty. You will not find a craps clause.”

This Wednesday the court granted injunctive relief to the Roman Catholic Diocese of Brooklyn and an Orthodox synagogue, which are challenging New York Gov. Andrew Cuomo’s occupancy limits. Justice Amy Coney Barrett joined the new 5-4 majority. In a concurring opinion, Justice Neil Gorsuch observed that the state had ignored “long-settled principles” that almost always prohibit government officials “from treating religious exercises worse than comparable secular activities.”

One area in which the states clearly can impose anti-Covid mandates is vaccinations. In Jacobson v. Massachusetts (1905), the Supreme court upheld the city of Cambridge’s authority to respond to a smallpox outbreak by mandating vaccines for all inhabitants. The justices affirmed that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Congress may also be able to impose vaccination or testing on employees or others engaged in commerce. But proponents of economic lockdowns overreach when they cite Jacobson in support. The case was modest in scope and dealt with a far surer remedy for a deadlier virus than Covid-19.

Federal and state officials have every right to urge Americans to take precautions against viral spread, though it would help if they consistently followed their own advice. But when the government moves beyond persuasion to coercion, its requirements must meet constitutional muster.

Some of them will, such as well-tailored state-level mask and vaccination mandates. Others probably won’t, including broad curfews, stay-at-home orders, economic lockdown mandates and measures that target protected First Amendment activities. There may be a “judicial impulse to stay out of the way in times of crisis,” Justice Gorsuch wrote in the New York case. “But . . . we may not shelter in place when the Constitution is under attack.”

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/the-constitution-will-survive-covid-19-11606502792

How Trump or Biden Can Get Serious About Human Rights in Cuba

By Paula J. Dobriansky and David B. Rivkin Jr.

Nov. 11, 2020, in the Wall Street Journal

As an insular nation with a population smaller than Ohio’s, Cuba plays an outsize role in both world affairs and U.S. domestic policy. Either President Trump, who won Florida, or Joe Biden, who’d have liked to, should take stock of the Cuban regime’s actions—among them gross violations of human rights, efforts to destabilize the Western Hemisphere, and broad collaboration with China, Iran, North Korea and Russia. The U.S. needs a bold new approach, using corruption-focused sanctions against Cuban officials and their accomplices.

One of the most reprehensible aspects of Cuban statecraft has been its trafficking every year of some 50,000 medical doctors, who are effectively enslaved and forced to work in other countries. “The Cuban regime takes up to 90% of what they charge . . . other countries for each doctor, pocketing considerable revenues and exploiting the doctors, who receive but a pittance,” Michael Kozak, the acting assistant secretary of state for Western Hemisphere affairs, said in an April briefing. Cuban government 2018 figures indicate slave labor brings in $7 billion a year and that it is the regime’s single largest source of revenue, accounting for 60% of its total foreign income.

Past U.S. administrations have pursued various policies toward Cuba, ranging from the decades-long economic embargo and restrictions on travel to a “normalization” policy under President Obama. Mr. Trump rolled back the Obama administration’s policy and reimposed comprehensive sanctions—but more needs to be done.

The U.S. should target Havana’s most heinous policies and do so in a way that would be difficult for its allies and supporters to counteract. The key to the new strategy is the Global Magnitsky Act of 2016, known informally as GloMag. It authorizes sanctions to cut off Cuban officials and their accomplices from global financial services, augmenting traditional sanctions that have cut them off from the U.S. financial industry.

The 2012 Magnitsky Act targeted individual Russian officials involved in the killing of lawyer Sergei Magnitsky in prison in 2009. The GloMag expanded that regime to cover foreign government officials implicated in human-rights abuses and corruption anywhere in the world.

President Trump further expanded the GloMag program in 2017, through Executive Order 13818, which broadens the scope of conduct that can trigger sanctions from “gross violations of internationally recognized human rights” to “serious human rights abuse,” and replaces “significant acts of corruption” with the broader term “corruption.” Since the law’s passage, the U.S. has imposed GloMag sanctions on individuals and entities from more than 20 countries, most recently designating for corruption Gibran Bassil, a senior Lebanese official. Still, these designations came in a trickle, rather than a wave.

Sanctions—including asset freezes, travel bans and exclusion from financial services—should be imposed on Cuban government officials involved in a variety of acts, all of which inevitably involve corruption, such as human trafficking, violating sanctions against Iran and North Korea, and drug trafficking. Sanctions should also target their agents or associates, whether or not they work for the government. There is sufficient available evidence that the Treasury’s Office of Foreign Assets Control could quickly make GloMag designations and rapidly adjust them as the targets attempt to circumvent sanctions. These designations could also be made even more expeditiously by a presidential executive order.

If adroitly deployed on a large scale, GloMag sanctions would cut deeply into Havana’s revenues and impair the ability of virtually all Cuban officials and their allies to do business or even travel. GloMag and other legal tools also allow the U.S. to reach third parties, who have financial or other dealings with targeted Cuban officials. Those parties could be subjected either to sanctions or criminal prosecution. The availability of these legal tools would reduce support for the Cuban regime world-wide.

Because European Union governments and other U.S. allies have vigorously embraced anticorruption policies, they would find it difficult to oppose this strategy. Canada, Britain and several other Western countries have GloMag-like sanction statutes of their own.

Domestically, a strong stand against the modern slave trade that underpins Havana’s statecraft should draw bipartisan support. Internationally, given Britain’s indispensable role in eradicating the trans-Atlantic slave trade in the 19th Century, London should be a U.S. partner in cracking down on Cuba-driven slave trade and corruption. By strategically employing GloMag, the U.S. can curtail Cuba’s malign activities and push the Cuban regime toward major reforms.

Ms. Dobriansky is a senior fellow at Harvard’s Belfer Center. She served as undersecretary of state for global affairs, 2001-09. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/how-trump-or-biden-can-get-serious-about-human-rights-in-cuba-11605134209

Another Election Goes to Court

By David B. Rivkin Jr. and Andrew M. Grossman

Nov. 6, 2020, in the Wall Street Journal

Whoever first quipped “It’s all over but the counting” forgot about the lawyers. Over the past year, Democrats and their allies marched through state after state in an unprecedented legal campaign to upend longstanding rules of election administration. The result is more uncertainty than ever over the basic rules of voting, and an increased likelihood that races will have to be called by the courts. Although it’s too early to say for certain, that may include the presidential election.

The battle lines are being drawn in states President Trump needs to win. Pennsylvania provides a typical illustration. In 2019 the state overhauled its election code to allow everyone to vote by absentee ballot. What had been a relatively restrictive regime, with early deadlines and limited availability, was transformed into one of the most liberal in the nation, requiring only that ballots be received by the statewide voting deadline, 8 p.m. on Election Day.

Even that wouldn’t hold. After three lawsuits to extend the deadline struck out this summer, the Pennsylvania Democratic Party hit a home run on the fourth at-bat. What changed was that the secretary of state, charged with defending state law, switched sides to support her own political party. The Pennsylvania Supreme Court held that the ballot-receipt deadline, established by state law, violated the state constitution’s “Free and Equal Election Clause” and legislated a three-day extension along with a presumption of timeliness for unpostmarked ballots received by Friday. It dismissed out of hand arguments that the U.S. Constitution’s Elections and Electors clauses vest exclusive authority in state legislatures to set the rules of federal elections that can’t be rewritten by state judges or executive-branch officials.

The U.S. Supreme Court split evenly on requests by the state Republican Party and the GOP-controlled Legislature to block the lower-court ruling—effectively denying them. But both have asked the court to review the case on the merits, and the Trump campaign filed a motion on Wednesday to join that case as a party. If Pennsylvania is close, the Biden campaign will join the other side, creating a 2020 reincarnation of Bush v. Gore.

We’ve come to this pass because of Democratic politicians’ recklessness and the Supreme Court’s timidity. Democrats knew from the beginning that it was risky for state courts to shift the rules of federal elections, because voters might rely on state-court decisions later overturned under federal law. The justices also could have avoided the problem by deciding the issue before Election Day, when voters still had the opportunity to get their ballots in on time according to the rules.

In this case, Chief Justice John Roberts’s inclination to duck politically charged cases may prove self-defeating. If the court has to step in now, after the votes have been cast and counted, a political storm could become a hurricane.

Republicans filed two Election Day lawsuits in Pennsylvania challenging local election officials’ disparate treatment of defective mail-in ballots. While state law doesn’t permit mail-in voters to be notified of defects with their ballots—doing so would interfere with the timing and confidentiality of the counting process—officials in several counties apparently contacted voters to allow them to cure defects. The problem, aside from violating state law, is that this treats voters differently depending on where in the state they live, in contravention of equal-protection principles. It’s little different from the gerrymandered recount the high court rejected in Bush v. Gore.

The backdrop in Arizona is a long-running lawsuit by the Democratic National Committee challenging the state’s requirement (shared by most states) that voters cast their ballots in assigned precincts, along with its prohibition on “ballot harvesting,” the collection of ballots by parties outside the voter’s family or household. The Ninth U.S. Circuit Court of Appeals ruled in favor of the Democrats and enjoined both policies in 2016, but the Supreme Court blocked the injunction a day later, with no recorded dissents.

The litigation dragged on. After a 10-day trial, a district court held that neither of these policies violates the Voting Rights Act. The Ninth Circuit reversed, but it stayed its own decision, anticipating that the Supreme Court would do so if it didn’t. The Supreme Court agreed last month to hear the state’s appeal, but it has yet to schedule arguments in the case. Meanwhile, Democrats stand ready to challenge the disqualification of wrong-precinct votes if that’s necessary to nudge up the numbers.

The presidential race may require legal decisions resolving such issues, as well as recounts and all the additional questions they implicate, to be decided in as many as half a dozen states. Manual recounts may be requested in several states, adding additional delays to the overall process. The Trump campaign has already filed lawsuits challenging various aspects of ballot handling and counting in Michigan and Georgia; suits in Nevada and Arizona may follow. Every case will have to be decided before Dec. 8, the federal statutory “safe harbor” deadline for states to appoint elector slates, or, at the absolute latest, by Dec. 14, when the Electoral College votes.

The media is already accusing the Trump campaign of attempting to litigate its way to victory, but practically every issue in play arises from the Democrats’ march through the courts in the run-up to Election Day. For all the cries of “disenfranchisement,” both sides agree that every lawful ballot should be counted. But after so many conflicting court decisions over the past year, what’s uncertain now is the law, and there’s no dishonor in asking the courts to say what it is.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin has served in the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/another-election-goes-to-court-11604618993?mod=e2two

China Deserves a Day in Court

By David B. Rivkin Jr. and Lee A. Casey

Oct. 19, 2020, in the Wall Street Journal

As Donald Trump and Joe Biden debate how to deal with malign Chinese behavior, Beijing’s National Bureau of Statistics reports its economy has largely recovered from the Covid-19 pandemic, growing 4.9% year-on-year in the third quarter. Meanwhile American class-action lawyers and the attorneys general of Mississippi and Missouri are suing the Chinese government over the novel coronavirus. Plaintiffs accuse Beijing of various forms of misconduct, ranging from negligence in handling the original infections in Wuhan to the reckless operation of biolabs and even perpetrating bioterrorism against the U.S.

Some of these claims are more plausible than others, but all face an insurmountable obstacle in court: the Foreign Sovereign Immunities Act of 1976, which prevents most lawsuits against foreign countries in U.S. courts. Litigation could be a way of holding China accountable, but only if Congress changes the law.

FSIA makes a few limited exceptions to immunity. Although lawyers in these cases have cited them, all seem clearly inapplicable. One permits suits against foreign governments based on their commercial activities in the U.S., or elsewhere if there is a direct effect in America. But these complaints allege governmental, not commercial, negligence or duplicity in handling the epidemic.

The tort exception allows foreign governments to be sued for wrongful actions, whether negligent or intentional. But Supreme Court precedent limits the exception to torts that take place entirely within the U.S. It would cover, for instance, an auto accident in Washington but not in Beijing.

There’s also an exception for terrorism, but that requires either that the defendant be designated a “state sponsor of terrorism” by the U.S.—currently only Iran, North Korea, Sudan and Syria are—or a specific act of international terrorism within the U.S. A biological attack would surely qualify, but there’s no evidence of that here.

FSIA gives federal courts jurisdiction over all lawsuits against foreign governments, and it’s almost certain judges will dismiss these actions even if Beijing refuses to participate in the proceedings. Reinterpreting any of the FSIA exceptions to cover suits involving the pandemic would open the door to further attacks on sovereign immunity. The U.S., a sovereign state itself, should be careful about creating broad new exceptions, and judges should be especially cautious, since they have neither the authority nor the expertise to conduct foreign policy.

That said, Congress has the power to limit or withdraw a foreign state’s sovereign immunity, and it should consider doing so in response to Covid-19. Such changes to deal with novel problems are legitimate and well-recognized. In May the Supreme Court held unanimously in Optai v. Republic of Sudan that plaintiffs in a lawsuit over al Qaeda’s 1998 attacks on U.S. embassies in Africa could recover punitive damages under an amendment to FSIA enacted in 2008.

Congress could enact a new exception to FSIA for cases in which a foreign state has failed to inform, or deliberately misinformed, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December to comply with the 24-hour notification requirement of the 2005 International Health Regulations would be an important factor to consider.

Such a statute could either create a new federal tort or give federal courts jurisdiction over suits alleging injuries under state law. As with the Justice Against Sponsors of Terrorism Act of 2016, Congress should authorize the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harms.

The U.S. judiciary is respected around the world and would be a better venue than any governmental or international investigation for getting at the truth of Covid-19. Beijing has accused the U.S. military of creating the virus and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. Chinese nationals have filed several lawsuits in China against the U.S. military, the Centers for Disease Control and Prevention and other American government entities. In these pages in May, a senior Chinese official, Xie Feng, suggested that the virus might have originated outside China. If Chinese officials have evidence to support any of these assertions, they could introduce them in court. In any case, their claims underscore the need for an impartial inquiry.

Congress could also withdraw immunity from international organizations that allegedly aided and abetted China’s efforts to play down the virus’s transmission and the health risks. Western intelligence services have suggested that Beijing gave detailed instructions to World Health Organization on what it should say. Plaintiffs could use the discovery process to identify other governmental and private-sector collaborators and hold them accountable for their Covid-related activities and other likely offenses, such as garden-variety corruption, committed while collaborating with Beijing.

They could also explore evidence that Covid-19 stemmed from an accidental release from a Wuhan biolab.

Beijing wouldn’t be able to ignore U.S. lawsuits. If it refused to participate, U.S. courts would enter enforceable default judgments. If it did participate, it would have to submit to discovery. It may be tempted to cheat in this process, but modern discovery techniques make that exceedingly difficult, and cheating would entail further liability and judicial punishments.

The Chinese government could try to avoid complying with any court-ordered damages and injunctions. But that wouldn’t be easy. Successful plaintiffs could collect judgments against Beijing by seizing Chinese government-owned commercial property around the world and the proceeds of sales of government goods and services. Ignoring injunctions would lead to monetary fines and other punishments.

Several bills featuring some of these provisions have been introduced by Sens. Tom Cotton, Josh Hawley, Martha McSally and Marsha Blackburn. Congress should proceed with caution. The law is usually a blunt and inflexible policy tool, wielded by an unelected judiciary rather than the president and Congress, where the Constitution vests the power to run foreign affairs. The political branches are accountable for their decisions in a way that the judiciary is not.

Yet Covid-19 has taken a tremendous human and economic toll world-wide. Lawsuits may become a powerful instrument for changing China’s behavior and can aid U.S. diplomatic and economic efforts to accomplish the same goal. Deterring China from future aberrant behavior requires holding it accountable for its Covid-19-related misconduct.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/china-deserves-a-day-in-court-11603148463

War-room podcast, October 2020

“If Democrats win, if they take the White House and the Senate, they abolish the filibuster by a simple majority, and they extend the Supreme Court to any size they want. It is completely Constitutional. It is not unlawful. But it will be a horrible result for everybody. Court packing would dramatize and enshrine in all its ugliness for everybody the Democrats’ view of the Supreme Court, which is essentially a legislature whose job is to ensure policy outcomes… I have no doubt that if they were to win, they would do that.”

The Supreme Court and the Election Returns

By David B. Rivkin Jr. and Lee A. Casey

Oct. 11, 2020, in the Wall Street Journal

The U.S. Supreme Court will decide as early as Monday whether to grant a stay in Pennsylvania Democratic Party v. Boockvar, in which the Keystone State’s supreme court, despite state election law to the contrary, ordered officials to count mail-in ballots received up to three days after Election Day. The justices should do so. This may turn out to be a normal election, in which we know the result by Nov. 4 and the Electoral College meets Dec. 14 to make it official. But a lot could go wrong, and the complex legal issues can be resolved only by the high court. Consider these possible scenarios:

• The counting drags on. If the election is close—and even if it isn’t—the process of tallying the vote could end up making the 2000 election dispute look simple. This year’s election procedures are being revised by courts in multiple states. This raises such questions as whether widespread mail-in voting and “ballot harvesting” are permissible and whether ballots received after Election Day can be counted, along with the overarching question of whether state or federal courts can create new election rules to address the Covid-19 pandemic.

In Bush v. Gore, the justices were forced to act by an impending deadline. Based on a specific constitutional grant of authority, Congress established the date on which the Electoral College must vote—a hard deadline (this year Dec. 14). In addition, Congress created a “safe harbor,” Dec. 8 this year, by which the state’s electoral slate is presumed to be valid. The court in 2000 acted to stop the recounts to meet the latter deadline.

Regardless of the statutory safe harbor, Article II of the Constitution requires each state to appoint electors “in such manner as the legislature thereof may direct” in time for the Electoral College vote. Because this is a specific constitutional duty conferred on state legislatures, they are exercising federal authority. Therefore neither state nor federal courts may rewrite election laws applicable to the selection of presidential electors. Justice Brett Kavanaugh emphasized that point concurring in Andino v. Middleton, an Oct. 5 order in which the justices stayed an injunction by the Fourth U.S. Circuit Court of Appeals that would have prevented South Carolina from enforcing its witness requirement for absentee ballots.

The Constitution similarly authorizes Congress to establish a single day—this year Nov. 3—on which presidential electors (and members of Congress) must be chosen. The election must be conducted on that day. This was the Supreme Court’s conclusion in Foster v. Love (1997), which involved congressional elections. The justices ruled that “the combined actions of voters and officials meant to make a final selection of an officeholder” must take place on Election Day, even if some aspects of voting may take place earlier. Thus although ballots can be completed beforehand and returned through the mail, they must be received by Nov. 3.

The justices have discretion over which petitions to hear and when. In cases involving a pending election, they should err on the side of speed and decisiveness. The sooner and more clearly these disputes are adjudicated, the likelier the election will go smoothly—and the less likely the need for an 11th-hour judicial intervention à la Bush v. Gore.

If counting isn’t complete by the time the Electoral College votes on Dec. 14, it’s possible one or more states will fail to appoint electors, violating its constitutional duty and leaving it disfranchised.

In that case, another question may arise: If states are absent from the Electoral College, does a candidate need a majority of the 538 available electoral votes (270) to be elected president or vice president, or is a majority of the votes cast sufficient? The 12th Amendment calls for “a majority of the whole number of electors appointed,” but the Supreme Court has never addressed this issue because it has never arisen. In only three elections—1789, 1864 and 1868—have any states’ electors gone unappointed, and in all three cases the winner had a majority either way.

• State authorities certify competing slates of electors. That’s what happened in the election of 1876 between Republican Rutherford Hayes and Democrat Samuel Tilden. Competing officials claimed their party had won 21 electoral votes from Florida, Louisiana and South Carolina, plus a single vote from Oregon—together enough to be decisive. Congress enacted legislation establishing a 15-member bipartisan “electoral commission” to resolve the dispute. The result, just in time for Inauguration Day on March 4, 1877, was a political deal that recognized Hayes as president and ended Reconstruction throughout the South.

The law creating the commission rested on no obvious congressional authority and thus was surely unconstitutional. But in an era when the federal judiciary’s role was far more circumscribed than today, the issue didn’t come before the Supreme Court. That would be different today—and rightly so. A dispute over the certification of electors is a legal question, not a political one. It would have to be resolved in the courts, and, given the stakes, ultimately by the Supreme Court.

• Congress attempts a power grab. In the years after the 1876 dispute, lawmakers enacted statutes to address the presidential election process, including barely intelligible language that purports to establish rules for determining which electoral votes Congress will count and authorizing members to lodge disputes. This too is constitutionally dubious although like the 1876 solution, it has never been litigated.

The 12th Amendment provides that once the electoral votes have been cast, the vice president receives and opens the votes before a joint session of Congress. (Under current statutory law, this takes place Jan. 6, after the new Congress has taken office.) But this is a purely ministerial function. If no candidate has an Electoral College majority, the House and Senate, respectively, choose the president and vice president. That is Congress’s only legitimate role in deciding the election.

This is for good reason. The Framers considered having Congress choose the president but concluded it would give too much power to the legislative branch and violate the separation of powers. Their solution was the Electoral College, an ephemeral body with no institutional interests of its own. Judges don’t decide election outcomes either, but the Supreme Court has recognized since Marbury v. Madison (1803) that it is their duty to “say what the law is.”

However disputed the election results may be, there is no basis for Congress to override the Electoral College or refuse to count the votes. The House recognized this in its 1932 report proposing the 20th Amendment, which noted that it was using “the term ‘President elect’ in its generally accepted sense, as meaning the person who has received the majority of the electoral votes, or the person who has been chosen by the House of Representatives in the event that the election is thrown into the House. It is immaterial whether or not the votes have been counted [in Congress], for the person becomes President elect as soon as the votes are cast.”

Whichever candidates receive the majority of electoral votes on Dec. 14 immediately become president and vice president elect, and they will take office on Jan. 20, 2021—even if it takes a Supreme Court ruling to make it so.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/the-supreme-court-and-the-election-returns-11602435660