Can Congress Tax Wealth by ‘Deeming’ It Income?

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

September 2, 2021, in the Wall Street Journal

Charles and Kathleen Moore have done well, but they certainly aren’t billionaires. Yet the couple’s constitutional challenge stands to slam shut the door on a federal wealth tax like the one Sen. Elizabeth Warren wants to enact.

The story is complicated, though less so than the tax code. In the 1990s Mr. Moore, a software engineer, worked at Microsoft on its Office applications and grew close to a fellow programmer, Ravi Agrawal. Mr. Agrawal dreamed of returning to his native India to do something for the small-scale farmers he knew growing up in the state of Chhattisgarh.

On a series of trips to India in the early 2000s, he saw an opportunity. Unlike the massive agricultural operations that feed the U.S., capital-poor farmers working a few acres each serve much of India. What struck Mr. Agrawal is that their tools were plainly inadequate, far less reliable and effective than what any American could buy for a few dollars at Home Depot. His idea was to close the gap by providing India’s poorest farmers with tools that would improve their livelihoods and lives, even in the face of the labor shortages in many rural areas as workers migrated to the cities.

Mr. Agrawal needed capital to get the business off the ground. He approached friends to invest in his new company, KisanKraft, and the Moores put up $40,000. It was a lot of money for them, but they believed in Mr. Agrawal and the mission. They knew they were unlikely to earn much of a financial return on their investment, because the plan was to reinvest any profits in the business and serve more of India’s rural poor.

That was the real return, and it proved massive. Mr. Agrawal had put his finger on an unmet need, and by 2017 KisanKraft had expanded to reach the entire country, with hundreds of employees, thousands of dealers and millions of customers. The Moores have never received a dime from their investment, yet it paid off beyond their greatest hope.

Then the tax bill came. As part of the Tax Cuts and Jobs Act of 2017, Congress reworked the way multinational corporations are taxed, limiting the amount that they had to pay on foreign income. Offsetting part of the cost was a new, one-time tax on earnings that certain foreign corporations had accumulated over the preceding 30 years but not distributed to their shareholders through dividends. The law deemed those earnings as 2017 income to the shareholders and taxed them on it. The Moores’ bill amounted to $15,000. They paid and are now suing for a refund, on grounds that the new tax is unconstitutional.

The Constitution grants Congress the “power to lay and collect taxes,” but with limits. Article I requires that any “direct tax”—one that falls directly on the payer rather than being passed on to someone else, such as the consumer—“be apportioned among the several states” according to population. The idea was that taxation, like representation, should be fairly apportioned so that no state or region could be singled out for disadvantage. Alexander Hamilton explained in Federalist No. 36 that tax apportionment was a key component of federalism, given that direct taxes could disrupt local economies in ways federal lawmakers couldn’t even imagine. By contrast, men of commerce would understand the effects of indirect taxes like tariffs or sales taxes, which the Constitution therefore didn’t subject to apportionment, only uniformity.

The Supreme Court held the first income tax unconstitutional as an unapportioned direct tax in 1895, and Congress eventually responded by proposing the 16th Amendment, ratified in 1913. It authorizes Congress to tax “incomes, from whatever source derived, without apportionment.”

So far as tax law goes, the Moores’ argument is straightforward. The new tax is a direct tax, and it isn’t on income—after all, they haven’t received any from KisanKraft. Instead, they’re being taxed on their property, the KisanKraft shares. The tax is therefore constitutionally invalid because it isn’t apportioned.

The government insists that the Moores are being taxed on income, because KisanKraft could theoretically distribute its accumulated earnings in the future. The courts, however, have consistently defined “income” to require, as the Supreme Court put it in Commissioner v. Glenshaw Glass (1955), “undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” As the Moores observe, they haven’t realized a dime in income. The government argues that the courts should abandon the realization requirement, giving the federal government carte blanche to tax “deemed” income without apportionment.

The stakes of the Moores’ case go well beyond their own tax liability. If they prevail, that would confirm that the Supreme Court’s precedents generally requiring apportionment and limiting the exception for taxes on “income” to its common understanding remain good law, clearly barring any kind of federal property tax, including a wealth tax—unless Congress apportions it, which there is no obvious way to do.

What makes the case an especially attractive vehicle to resolve this issue is the simplicity of their situation, a rarity in tax cases. There’s also the timing: If the courts confirm the 16th Amendment’s limited reach now, that would relieve them from having to do so in a politically explosive case directly challenging a wealth tax. The courts would do well to remind Congress at this opportune time that its taxing power is not without limits.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington. They represent the Moores in their refund action.

Source: https://www.wsj.com/articles/congress-tax-wealth-courts-constitution-moore-agrawal-kisankraft-elizabeth-warren-11630529642

The Temptation of Judging for ‘Common Good’

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

July 23, 2021, in the Wall Street Journal

As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.

The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.

Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.

A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”

As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.

There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”

One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.

And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?

The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whalen of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”

The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.

For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/supreme-court-conservative-liberal-originalist-vermeule-11627046671

H.R.1 Would Steamroll the Constitution

By David B. Rivkin, Jr., and Jason Snead

June 3, 2021, in the Wall Street Journal

President Biden and his media partisans are stepping up the pressure campaign on Joe Manchin. The West Virginia senator is the only Democrat in the upper chamber who hasn’t signed on to H.R.1, styled the For the People Act, an unprecedented federal takeover of U.S. election laws that the House passed in March and that the Senate plans to consider this month. The bill’s supporters describe it as a vital safeguard of democracy, but it’s the opposite: If enacted it would destroy the Constitution’s careful balance of federal and state powers, taking common election safeguards along with it.

H.R.1 plainly exceeds Congress’s power to regulate presidential elections, as we argued in these pages in February. That’s only the start of its constitutional infirmities.

The primary asserted constitutional basis of H.R.1 is Article I’s Elections Clause, which authorizes state legislatures to establish the “times, places and manner” of congressional elections, while providing that “Congress may at any time by law make or alter such regulations.” In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court held that several state election-integrity measures were invalid because federal law pre-empted them.

Yet H.R.1’s sponsors fail to recognize that the Elections Clause limits Congress’s authority to time, place and manner. “Prescribing voting qualifications,” Justice Antonin Scalia wrote for the court in 2013, “forms no part of the power to be conferred upon the national government by the Elections Clause.” Article I’s Qualifications Clause provides that “the electors”—that is, voters—“in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” Determining those qualifications is up to the states, except where the Constitution says otherwise—for instance in the 19th and 26th amendment, enfranchising women and 18-year-olds, respectively.

Yet H.R.1 purports to establish federal voter qualifications for congressional elections. A prime example is the section mandating “democracy restoration”—a euphemism for enfranchising felons except during imprisonment, a decision the Constitution leaves to the states. The bill’s provisions governing internet voter registration, automatic registration and same-day registration are also suspect. Justice Clarence Thomas, dissenting in Inter Tribal Council, argued that registration is a matter of qualifications, not manner. Scalia and the majority didn’t disagree, so that issue remains open for adjudication.

Other provisions would intrude into states’ efforts to ensure the integrity of elections—such a fundamental aspect of sovereignty that erasing it extinguishes states’ status as coequal sovereigns. H.R.1 would require states to accept a voter’s sworn statement attesting to his identity and eligibility in lieu of any other identification requirement. The Inter Tribal Council majority held that “the power to establish voting requirements is of little value without the power to enforce those requirements” and stated that a statute precluding “a State from obtaining the information necessary to enforce its voter qualifications” would “raise serious constitutional doubts.”

The constitutional problems with H.R.1 are more fundamental than its specific provisions. One arises from their sheer magnitude, which would effectively create a comprehensive federal elections code. The Constitution’s framers and early commentators were united in their rejection of a congressional takeover of federal elections.

Federalist 59 affirmed that the Elections Clause granted power, “in the first instance, to the local administrations” and merely “reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” Justice Joseph Story’s “Commentaries on the Constitution of the United States” (1833) noted that Congress would pass election legislation only if “there has been some extraordinary abuse” and would provide merely “a check upon state legislation.”

H.R.1’s supporters claim the bill provides such a check against a supposed rash of “voter suppression” measures. That claim is flimsy given historic turnout and diversity in recent elections, as well as data showing that voter-ID laws don’t depress turnout. H.R.1 features provisions Democrats have long favored—further evidence that it isn’t a response to a new crisis.

H.R.1’s extreme federal election takeover raises the question of how far Congress can go to oust states from the entire field. Federalist 59 describes Congress’s role as regulating elections “in the last resort”; H.R.1 does so as the first resort. The Supreme Court has never had to address the outer limits of Congress’s power because nothing like H.R.1 has ever passed. But if it does, its comprehensiveness should be its undoing.

There’s another problem. H.R.1 would also compel states to administer and fund the new election regime through state-established and funded redistricting commissions and online registration schemes. Such requirements violate the Supreme Court’s anticommandeering and anticoercion doctrines, which prohibit Congress from mandating that states do its bidding or unduly burdening those that refuse.

Some courts have found the anticommandeering doctrine inapplicable to election laws, reasoning that Congress’s Elections Clause power authorizes it to regulate federal elections. That’s a non sequitur. The doctrine applies when Congress has constitutional authority to regulate the matter directly; it condemns the indirect manner of dictating “what a state legislature may and may not do,” as Justice Samuel Alito put it for the court in Murphy v. NCAA (2018). The high court has never endorsed a different view, and in Inter Tribal Council, it stated that the Elections Clause “is none other than the power to pre-empt”—implying it is not the power to commandeer.

The anticoercion doctrine also prohibits H.R.1’s proposed federal takeover of state authority, and no court has denied that it applies in the electoral context. As Chief Justice John Roberts stated in NFIB v. Sebelius (2012), the anticoercion doctrine requires Congress to afford states “a legitimate choice whether to accept . . . federal conditions” in choosing whether to administer a federal program.

H.R.1 would leave no choice at all. It isn’t a cooperative federalism program giving states benefits in exchange for implementing federal laws. Instead, it would force states to do what Congress can’t: administer national elections in every state.

The constitutional problems with H.R.1 are legion, and no new federal election legislation is necessary. States are exercising their constitutional authority, revising election laws to balance the imperatives of voter access and election integrity. Mr. Manchin should stick to his guns.

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. Mr. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/h-r-1-would-steamroll-the-constitution-11622737590

Congress Sowed the Seeds of Jan. 6 in 1887

The Electoral Vote Count Act lets Congress think it can choose the President, but it’s unconstitutional.

By J. Michael Luttig and David B. Rivkin Jr.

March 18, 2021, in the Wall Street Journal

Congress plans to establish a commission to investigate the Jan. 6 storming of the Capitol. We already know one reason for that terrible event. Members of the mob acted in the mistaken belief, encouraged by President Trump, that lawmakers had the power to determine the election’s winner. Congress itself sowed the seeds of this belief when it passed the Electoral Vote Count Act of 1887 and could destroy it root and branch by repealing that law.

The EVCA grew out of another bitterly contested presidential election. In 1876 officials in Florida, Louisiana and South Carolina certified competing slates of electors, one for Republican Rutherford B. Hayes and one for Democrat Samuel J. Tilden ; a single electoral vote from Oregon was similarly contested. The 20 disputed votes were enough to decide the election. A congressional commission ultimately chose Hayes in a political deal. In exchange for the presidency, Republicans agreed to end Reconstruction and withdraw federal troops from the South.

The EVCA was enacted 10 years later, largely to limit Congress’s role in determining which electoral votes to accept. Yet Congress gave itself more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges. The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as “irregularly given,” a process that a single representative and senator can trigger by filing an objection.

Fortunately, this provision has seldom been invoked—only twice before 2021—and no objection has ever been sustained. But this year Republican lawmakers vowed to contest the results in six swing states that Joe Biden carried. Although the objections had no prospect of success in a Democratic House and those that were filed (for Arizona and Pennsylvania) were voted down overwhelmingly in both chambers, the law put Congress smack in the middle, where it uncomfortably found itself in 1876.

That’s not what the Framers intended. The Constitution’s Electors Clause gives state legislatures plenary authority over the manner of choosing electors and relegates Congress to determining on what day the Electoral College would cast its votes. The 12th Amendment, ratified in 1804, reformed the Electoral College by providing for separate votes for president and vice president. It also reiterates the Article II, Section 1 language that the certified state electoral results are to be transmitted to Washington, opened by the president of the Senate, and counted in the presence of both congressional houses.

No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes. Significantly, the 12th Amendment gives Congress no power to enact legislation to enforce its provisions, unlike subsequent amendments expanding the franchise. The Necessary and Proper Clause doesn’t support such legislation either. The constitutional text contains further indications that the Framers chose to exclude Congress from participating in presidential elections. While Article I, Section 5 grants Congress the authority to judge the elections of its own members, no such power is given with regard to presidential elections. And Article II, Section 1 forbids members of Congress from being appointed as electors.

In fact, after much debate, the Framers deliberately chose to deny Congress any substantive role in selecting the president and vice president, except in the rare case that no candidate has an Electoral College majority. This was for compelling separation-of-powers reasons. As Gouverneur Morris explained at the time, “if the Executive be chosen by the [National] Legislature, he will not be independent [of] it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence.”

Thus Congress’s prescribed role as audience during the process of opening and counting the electoral votes is ministerial. With electoral college votes coming from all of the states, the counting had to be performed by a federal government entity, and both the executive and judicial branches had potential conflicts of interest. That Congress has no constitutional “skin in the game” of presidential selection made it perfectly positioned for this role of official observer.

Who then does have the power to settle disputes over electoral slates, such as those in 1876 and 2020? Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.

Congress should promptly repeal the Electoral Vote Counting Act. Given the tight constitutional timeline for casting and counting votes and inaugurating a president, lawmakers should enact a statute providing for expeditious federal judicial resolution of all questions relating to compliance with state legislatively established procedures for selecting presidential electors, the validity of elector selection, and the casting of electoral votes—and requiring eventual mandatory Supreme Court review.

By ridding the country of this unconstitutional and anachronistic law, lawmakers would remove themselves from the process for choosing the president and surrender back to the federal judiciary the role Congress unconstitutionally arrogated to itself almost a century and a half ago. That would go a long way toward ensuring that America never witnesses a siege on the National Capitol on a future Jan. 6.

Mr. Luttig served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. He advised Vice President Mike Pence on the 2020 vote certification. 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/congress-sowed-the-seeds-of-jan-6-in-1887-11616086776

Legal analysis of the Democrats’ proposed elections law

In this interview (20 Feb 2021) on the Dan Proft show, David Rivkin shows that the Democrats’ proposal to regulate federal elections is unconstitutional, especially in relation to presidential ballots. The constitution stipulates that determining the manner of presidential elections is a power held by the states, not by Congress. The interview follows a recent op-ed published in the Wall Street Journal

An Unconstitutional Voting ‘Reform’

Democrats want to impose federal rules on elections for president. Congress doesn’t have that power.

By David B. Rivkin Jr. and Jason Snead

Feb. 16, 2021, in the Wall Street Journal

House Democrats have made election “reform” their top legislative priority. House Resolution 1, styled the For the People Act, would vitiate existing state election laws, federalize the rules of congressional and presidential elections, and effectively do the same for state elections, which are often conducted on the same ballot. Critics have noted that the proposed rules are designed to benefit Democrats. They’re also unconstitutional.

The key problem is that the Constitution doesn’t give Congress the authority to regulate all federal elections in the same way. Congress has significant power over congressional elections. The Elections Clause of Article I, Section 4 provides that state legislatures “shall prescribe” the “times, places and manner of holding elections for senators and representatives,” but also authorizes Congress to “make or alter such regulations.”

Yet Congress has only limited authority over the conduct of presidential elections. They are governed by the Electors Clause in Article II, Section 1, which provides: “Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” Congress’s timing determination is binding on the states, as the Eighth U.S. Circuit Court of Appeals held last year in Carson v. Simon, which rejected Minnesota’s modification of its ballot-receipt deadline. (The Honest Elections Project sponsored the litigation, and Mr. Rivkin was the plaintiffs’ lead attorney.)

But the Electors Clause gives state legislatures plenary power over the manner of selecting presidential electors. It does not permit lawmakers to promulgate a comprehensive federal elections code. Nor does the 15th Amendment, which bars racial discrimination in voting, or the other amendments extending the franchise. Each grants Congress the power to enforce its guarantees through “appropriate legislation.” But as the Supreme Court explained in City of Boerne v. Flores (1997), “Congress does not enforce a constitutional right by changing what the right is.” None of these amendments guarantee the right to vote in any particular way—such as by mail versus in person—so Congress can’t rightly be said to be enforcing them through H.R.1. And none of them repeal the Electors Clause.

Although all 50 state legislatures have provided for popular election of presidential electors, the legislatures could change state law and appoint electors directly. H.R.1 violates the Electors Clause on its face, purporting to govern not merely the time, place and manner of congressional elections, but also regulating presidential elections in exactly the same prescriptive matter as congressional elections.

The profound difference between the Electors Clause and the Elections Clause was no accident. The 1787 Constitutional Convention in Philadelphia considered many possible methods of choosing the chief executive: direct popular election, selection by one or both houses of Congress, even a vote of state governors. Ultimately, delegates settled on a college of electors, chosen in a manner to be determined by the legislature of each state, to avoid the president’s selection by Congress. As Pennsylvania’s Gouverneur Morris said at the convention, “if the Executive be chosen by the [national] legislature, he will not be independent [of] it; and if not independent, usurpation and tyranny on the part of the legislature will be the consequence.”

Another delegate, South Carolina’s Charles Pinckney, explained later: “In the Federal Convention great care was used to provide for the election of the president of the United States independently of Congress; to take the business as far as possible out of their hands.” Congress, Pinckney continued, “had no right to meddle with it at all.” The only exception is that the House chooses the president if no candidate commands an Electoral College majority.

The Supreme Court has recognized state legislatures’ primacy in regulating presidential elections. In McPherson v. Blacker (1892), the justices upheld Michigan’s apportionment of presidential electors by congressional district, holding that the Constitution “leaves it to the [state] legislature exclusively to define the method” of appointing electors. Subsequent rulings have adhered to that principle. In Burroughs v. U.S. (1934), the court held that Congress’s authority is limited to enacting laws that don’t “interfere with the power of a state to appoint electors or the manner in which their appointment shall be made.”

The court restated this principle as recently as 2000, holding unanimously in Bush v. Palm Beach County Canvassing Board that the Florida Supreme Court couldn’t change state election laws on its own authority, without action by the Legislature.

Even if lawmakers cured the constitutional deficiency of H.R.1 by applying it only to congressional elections, it would still be bad policy. Voting systems are vast and complex. Even minor, well-intentioned changes can have significant unintended consequences. Few know this better than election officials themselves. According to a recent report by Pennsylvania’s county commissioners, “uncertainty regarding court challenges” and “confusion because of ever-changing guidance” from Secretary of State Kathy Boockvar contributed to the November delays and problems experienced by counties across the commonwealth. It took Philadelphia two weeks to count 700,000 ballots.

By contrast, Florida has spent two decades bolstering its election system after the debacle of 2000. The Sunshine State processed 11 million ballots in November and reported accurate results on election night. More states should be doing what Florida does.

But H.R.1 would put Florida’s success at risk. Its law requires voters to show identification and return absentee ballots by Election Day, bans organized ballot trafficking, and requires that voters cure problems with their mail-in ballots no later than two days after an election. Common-sense measures like these help the state deliver honest elections with prompt and accurate results even in the face of a pandemic. For H.R.1’s drafters, though, these are instruments of “voter suppression.” The bill would dilute or prohibit all these measures.

Keeping states in charge of elections also limits the damage when policy changes fail. States can experiment with voting improvements, learn from missteps, and replicate successes. Not so with a one-size-fits-all system. Any troubles caused by a national voting law will instantly affect all 50 states, none of which will have the freedom to correct them. Imposing unconstitutional voting changes on the whole nation would politicize the machinery of democracy and risk permanently tainting the credibility of elections.

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. Mr. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/an-unconstitutional-voting-reform-11613497134