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

7 December 2021 in the Wall Street Journal

Congress is about to begin another debt-ceiling fight, and it threatens the Constitution as well as America’s solvency.

Over the past two years, Uncle Sam has borrowed and spent trillions of dollars to address Covid-19. Coronavirus spending added nearly $3 trillion to the national debt this year alone—and that doesn’t count the recently passed infrastructure bill and the pending Build Back Better Act. The unprecedented growth in federal outlays has contributed to inflation, which has reached a 30-year high, and caused annual budget deficits to soar.

The government is about to reach its statutory federal borrowing limit of $28.4 billion. If Congress doesn’t increase the limit, Washington will run out of money to meet its legal obligations. Republicans and Democrats are at loggerheads over how much to spend and whether to enact what the Democrats call “transformational” legislation—measures that would reshape the American economy and increase government’s role in nearly all aspects of life.

The threat to the Constitution comes from one of the options lawmakers are considering: suspending rather than raising the statutory debt ceiling, thereby authorizing the executive branch to borrow an unlimited amount of money for a limited time. Suspending the debt ceiling would undermine the structure of American democracy—particularly when government spending obligations are in flux, and the future direction of key policies is being fiercely contested.

Senate Minority Leader Mitch McConnell has warned Democrats that if they insist on enacting major and costly policy changes on a partisan basis, they will have to increase the debt ceiling without votes from Republicans. That could be accomplished through budget reconciliation, the means by which the Democrats intend to pass the Build Back Better Act with a simple majority. But Democrats are wary of unilaterally raising the debt ceiling, which isn’t popular.

In October, facing a debt-ceiling stalemate and a possible government shutdown, Republicans reluctantly supplied the votes necessary to increase the debt ceiling by $480 billion. That was constitutionally proper, but it bought only a little time. The increase will be exhausted this month, and Mr. McConnell and Majority Leader Chuck Schumer have again started negotiations on the debt ceiling.

Congress usually raises the statutory debt ceiling to a new specific dollar amount, a core part of its constitutional power of the purse. Occasionally, however, Congress (with both parties in the majority) has “suspended” the debt ceiling. As we argued in these pages during the last debt-ceiling crisis, such delegations of power are constitutional only if, as Justice Elena Kagan put it in Gundy v. U.S. (2019), “Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.”

The current unsettled budgetary environment makes the constitutional infirmity of suspending the debt ceiling acute. When suspensions were adopted in the past, there was at least a shared understanding between Congress and the executive about where the dollars were to go and how much spending there would be. Previous suspensions weren’t coupled with open attempts to transform the country’s economy and society—to upend the fundamental relationship of government to the governed.

Today’s spending plans are opaque and unpredictable. The estimated cost of Build Back Better alone ranges from $1.75 trillion to more than $5 trillion. That lack of clarity could also dramatically alter the terms upon which the Treasury can find willing buyers for new U.S. debt, greatly increasing debt-servicing costs. Suspending the debt ceiling in these circumstances would mean the executive branch is entirely unbound.

As another debt-ceiling cliff-hanger emerges, Democratic leaders appear committed to a suspension, which again would require Republican support. Giving bipartisan cover to another unconstitutional suspension would be disastrous. Decisions about the levels of spending, borrowing and taxation now under consideration require democratic accountability. Congress is almost evenly divided between the two major parties, a situation that counsels against transformative political and economic changes negotiated in back rooms.

If Democrats believe their programs are meritorious enough to burden the country with trillions of dollars in additional debt, they should accept the political risk of raising the debt ceiling without Republican votes. If Democrats are right, they’ll benefit and Republicans will pay the political price for intransigence. That’s how American democracy works, and why so many of the Constitution’s most fundamental provisions, such as Congress’s power of the purse, were adopted—to ensure accountability and the consent of the people.

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

Source: https://www.wsj.com/articles/debt-ceiling-crisis-threatens-democracy-budget-limit-build-back-better-mcconnell-schumer-11638718728

OSHA’s job is to promote safe workplaces, not to dictate medical decisions to employees.

By David B. Rivkin Jr. and Robert Alt

Sept. 28, 2021, in the Wall Street Journal

President Biden told unvaccinated Americans this month: “We’ve been patient, but our patience is wearing thin. . . So, please, do the right thing.” He backed up this request with a series of new regulatory mandates, including one from the Occupational Safety and Health Administration, which directs businesses with 100 or more employees to make vaccination a condition of employment.

The Covid vaccine has been widely hailed as a modern scientific miracle. Yet as a means to increase nationwide vaccination rates, the OSHA mandate far exceeds the authority Congress granted the agency, and if the president can order private companies to dictate such terms of employment, his power to coerce citizens in the name of public health might as well be unlimited. This would both be profoundly unconstitutional and fundamentally transform the relationship between the government and the people.

The Occupational Safety and Health Act of 1970 authorizes OSHA to enact rules that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” But the Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site.

It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement. Natural immunity tends to be more robust and longer-lasting than vaccinated immunity, according to Marty Makary of the Johns Hopkins University School of Medicine. Worse, Dr. Makary says, there is evidence that people who already have natural immunity are at heightened risk of vaccine side effects caused by an augmented inflammatory response. For these reasons, lawsuits have already been filed challenging employer vaccine mandates as applied to employees with natural immunity.

Another concern is that the administration’s interpretation of the OSHA statutory language presents a “delegation” problem. If Congress delegates discretion to an agency without a proper limiting principle, it violates the separation of powers. To avoid this constitutional problem, the courts will have to give the statute a more restrictive reading. Coming up with a meaningful judicially enforceable principle would not be easy.

Additional problems arise from the administration’s urgency. In imposing the vaccination requirement immediately, OSHA will bypass the ordinary notice-and-comment rule-making process and issue what’s known as an Emergency Temporary Standard. OSHA has used that legal authority only 10 times in 50 years. Courts have decided challenges to six of those standards, nixing five and upholding only one.

The OSH Act imposes stringent limits on emergency standards precisely so OSHA can’t easily circumvent the ordinary rule-making process. The government has to prove that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that using the emergency process is “necessary to protect employees from such danger.” Courts subject emergency standards to a what appellate courts call a “hard look” review, a more stringent standard than for ordinary economic regulations.

The White House justifies the mandate as a proportional response to the spread of Covid’s Delta variant, which is straining hospital capacity in some states. But the mandate is nationwide and indefinite, not tied to Covid rates. The administration’s vaccine rhetoric is therefore another reason to regard the standard as legally suspect. In addition to Mr. Biden’s remark about his patience wearing thin, White House chief of staff Ron Klain retweeted a journalist’s comment that “OSHA doing this vaxx mandate as an emergency safety rule is the ultimate work around for the Federal govt to require vaccinations.”

All this suggests that the administration’s statutory reliance on workplace safety is pretextual. OSHA was established to ensure workplace safety, not to act as a “work around” for achieving other political or policy objectives. In Department of Commerce v. New York (2019), the Supreme Court struck down an otherwise defensible census regulation because the Trump administration’s grounds for instituting it were pretextual.

Beyond these statutory issues lie constitutional concerns. Many commentators are under the impression that Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a vaccine mandate, settles all such questions. But that case involved a state law and a local regulation, not any federal action—a crucial distinction. The states have plenary police power to regulate health and safety. Congress has only those limited powers enumerated in the Constitution. That wouldn’t include the authority to impose a $155 fine (today’s equivalent of the $5 at stake in Jacobson) on an individual who declines to be vaccinated, much less to prevent him from earning a livelihood.

Defenders of the Biden mandate surely will justify it as a delegation pursuant to Congress’s power to regulate interstate commerce. But the actual target of the rule is individual medical choices, not commercial ones. If a personal decision not to buy medical insurance can’t be characterized as “commerce”—as the Supreme Court held in NFIB v. Sebelius (2012), the ObamaCare case—how can the decision not to be vaccinated?

Further, if public-health benefits are sufficient to justify an OSHA vaccine mandate, what principle would limit the agency’s authority? Could it ban employees from smoking or consuming foods containing trans fats while working at home? The public-health profession has already characterized everything from gun ownership to social-media use as posing a serious public-health issue. Could OSHA legitimately police these, too, even away from the workplace?

Higher vaccination rates would be a public good. But our nation’s Founders understood that much mischief can be done under the theory of being “for your own good” and provided limits to government authorities accordingly. Even during a pandemic, the Biden administration would do well to respect those limits.

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Alt is president and CEO of the Buckeye Institute, a think tank engaged in public-interest litigation and policy.

Source: https://www.wsj.com/articles/biden-lawless-vaccine-mandate-constitution-occupational-safety-11632841737

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

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

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

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