Essay

Bound Electors

Introduction

In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,”1 1.Jason Harrow, The Originalist Take on Presidential Electors, Wash. Examiner (Sept. 9, 2019, 12:09 PM), https://www.washingtonexaminer.com/opinion/op-eds/the-originalist-take-on-presidential-electors [https://perma.cc/4K7A-6SDL].Show More the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular vote.2 2.See Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019).Show More The Supreme Court has agreed to review and resolve this important issue of constitutional law before the 2020 presidential election.3 3.See, e.g., Associated Press, Justices To Consider Faithless Electors, Ahead of 2020 Vote, Politico (Jan. 17, 2020, 4:24 PM), https://www.politico.com/news/2020/01/17/justices-to-consider-faithless-electors-ahead-of-2020-vote-100631 [https://perma.cc/SF2E-FR49].Show More

Far from being a masterpiece, however, the Tenth Circuit opinion is a selective reading of incomplete linguistic, historical, and judicial materials. It ignores centuries of controversy over interpreting the law governing presidential elections. It reaches an overly broad conclusion—that “the states’ delegated role is complete upon the appointment of state electors”4 4.SeeBaca, 935 F.3d at 947.Show More—that is inconsistent with constitutional history and practice. It ultimately relies on background political principles that were contested at the adoption of the Constitution and remain contested today.

In addition, the opinion utilizes the disputed interpretive technique of attributing thick meanings to constitutional words to divine substantive results from open-textured or scant constitutional provisions.5 5.See, e.g., David Robertson, Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, 35 Ga. J. Int’l & Comp. L. 277, 279 (2007) (distinguishing thick constitutional meanings that instantiate ethical aspirations from thin ones that do not); see also Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 15 (2018) (arguing that “the thicker the communicative content” of constitutional text, “the less need there is to enter into” interpretive construction); cf. Lawrence B. Solum, Legal Theory Lexicon 028: Concepts and Conceptions, Legal Theory Lexicon, https://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_1.html [https://perma.cc/9HE5-UCTL] (last updated Oct. 13, 2019) (distinguishing between general concepts and more detailed, and competing, conceptions of those concepts).Show More This technique includes attributing prescriptively thick meanings to words—meanings that implicitly generate substantive rules of law missing from the Constitution’s express text. The Tenth Circuit finds an unwritten constitutional rule that states may not abridge the freedom of presidential electors largely because it finds that at the adoption of the Constitution the word “elector” meant someone who has freedom when voting.6 6.SeeBaca, 935 F.3d at 945–46.Show More

This Essay critiques the Tenth Circuit decision. It furnishes historical support for an interpretation that state power over electors continues after their appointment and may include the power to bind them to the result of a popular election. It identifies issues with attributing thick meanings to constitutional terms. It suggests that the Supreme Court should reject the Tenth Circuit’s reasoning and develop a coherent theory of the roles of the people, the states, and the federal government in the electoral process in order to resolve the dispute. Finally, it suggests a number of questions that the Court might consider in developing that theory.

I. Constitutional Provisions

The most perplexing issue for the Philadelphia Convention was how to select the President.7 7.See 2 Jonathan Elliot, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 473 (2d ed. 1836), https://hdl.handle.net/2027/nc01.ark:/13960/t0qs1jm66?url­append=%3Bseq=76 (statement of James Wilson).Show More The resulting provisions, as amended, appear in Article II, Section 1 (the “Appointments Clause”) and the Twelfth Amendment of the Constitution (together, the “Electoral Clauses”). The Appointments Clause provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.8 8.U.S. Const. art. II, § 1, cl. 2.Show More

For convenience, this Essay uses “Electors” hereafter to refer to presidential and vice presidential electors and “electors” to refer to voters in other contexts.9 9.Quotations retain the capitalization of the original unless otherwise noted.Show More Electors cast votes separately for the President and Vice President pursuant to the Twelfth Amendment.10 10.U.S. Const. amend. XII.Show More That Amendment provides rules for the timing, delivery, and counting of their votes and, in the absence of a majority, for the House of Representatives to choose the President (with each state having one vote) and the Senate to choose the Vice President. 11 11.Prior to the Twelfth Amendment, the Electors did not vote for the two positions separately. They cast two votes. The person with the majority of votes became President, and the one with the next greatest number of votes became Vice President. See U.S. Const. art. II, § 1, cl. 3 (repealed 1804). The Amendment did not substantially change the remaining parts of the electoral process.Show More

The sparse Electoral Clauses prescribe few details for how to fill the important positions of President and Vice President.12 12.See, e.g., Letter from James Madison to Thomas Jefferson, Nat’l Archives (Mar. 15, 1800), https://founders.archives.gov/documents/Madison/01-17-02-0218 [https://perma.cc/­ZM3C-XHMV] (“It is not to be denied that the Constn. might have been properly more full in prescribing the election of P: & V. P. . . . .”). For example, the Constitution prescribes who shall judge the qualifications of Representatives and Senators but not who shall judge those of Electors. See U.S. Const. art. I, § 5, cl. 1 (each house to judge the qualifications of its own members).Show More As a result,

upon no other problem, connected with the politics of the country, has there been propounded such a variety of views, so widely apart, by such able and eminent statesmen, and discussed with such heat and acrimony over so long a period, as those delivered in Congress touching the metes and bounds prescribed to this question by the Constitution. 13 13.David A. McKnight, The Electoral System of the United States 12 (Philadelphia, J. B. Lippincott & Co. 1878).Show More

The Tenth Circuit’s straightforward analysis belies these historical controversies, which arise from conflicting principles governing the powers of the people, the states, and the federal government.14 14.See, e.g., infra notes 82–87 and accompanying text (conflicting interpretations of “State” in the Appointments Clause).Show More

II. The Baca Decision

States typically hold popular elections for President and Vice President. They count each popular vote for a candidate as a vote for a slate of Electors pledged to support that candidate when voting pursuant to the Twelfth Amendment. The Tenth Circuit opinion in Baca considers the question of whether a state legislature has the power to bind Electors to honor their pledge, to replace those who refuse with faithful alternates, and to have the alternate votes counted under the Twelfth Amendment. The opinion utilizes five characteristically originalist approaches from constitutional text, history, and structure. It concludes that “the states’ delegated role is complete upon the appointment of state electors.”15 15.Baca v. Colo. Dep’t of State, 935 F.3d 887, 947 (10th Cir. 2019).Show More The legislature has no power to bind Electors, who are free to vote at will for anyone.

The first approach relies on constitutional history, particularly The Federalist Papers. The opinion cites the views of Alexander Hamilton and John Jay, as detailed in The Federalist Nos. 60, 64, and 68, that the Constitution gives Electors the power to appoint the President.16 16.Id. at 952–54 (quoting The Federalist Nos. 60, 68 (Alexander Hamilton), No. 64 (John Jay)).Show More In particular, the court relies on Hamilton’s view that giving independent Electors the right to elect the President disperses the power to choose the principal members of the federal government—the people elect Representatives, state legislatures elect Senators, and Electors elect the President.17 17.Id. at 953 (quoting The Federalist No. 60 (Alexander Hamilton) (Consequently, “there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”)). Senators are now popularly elected. See U.S. Const. amend. XVII.Show More

The second approach attempts to find the answer to a question of substantive law—whether states have the power to bind Electors—in period dictionary definitions of three words in the Electoral Clauses: “elector,” “vote,” and “ballot.” The court finds that all of the period definitions “imply the right to make a choice or voice an individual opinion,” supporting a finding that Electors “are free to vote as they choose.”18 18.Baca, 935 F.3d at 945.Show More The court does not identify any express text governing state power to bind Electors. Instead, it relies on prescriptively thick meanings of the three words to find an implicit rule forbidding states to bind them.

The third approach is to read the term “Electors” in the Appointments Clause consistently with its use elsewhere in the Constitution, specifically regarding individual electors voting for members of the House of Representatives.19 19.Id.Show More The opinion cites precedent finding that a “‘fundamental principle of our representative democracy,’ embodied in the Constitution,” prescribes that such individual electors are free to vote as they would like.20 20.Id. at 946 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).Show More The opinion reasons that Electors must also have such freedom because they have the same name.21 21.Id.Show More

The fourth approach is to contrast express state obligations to those of the President. Colorado argued in Baca “that the power to appoint necessarily includes the power to remove and nullify an anomalous vote,” relying on the President’s power to remove executive appointees as affirmed in Myers v. United States.22 22.Id. at 940 (citing Myers v. United States, 272 U.S. 52, 175–76 (1926)).Show More The Tenth Circuit found that Myers depended on the constitutional provision that the President “shall take care that the laws be faithfully executed” and the consequence that the President must be able to control inferior executive officers.23 23.Id. at 940–41; see also U.S. Const. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”).Show More The Constitution does not require states to “take care” that Electors perform their function, and therefore state power to appoint does not include the power to remove.24 24.Baca, 935 F.3d at 941.Show More

The fifth and final approach relies on the structure of the Constitution’s voting procedures to determine that “states may not interfere” with an Elector’s discretion.25 25.Id. at 942.Show More It details the express procedural steps that the Constitution enumerates. It notes that “the express duties of the states are limited to appointment of the presidential electors,”26 26.Id.Show More after which every subsequent step “is expressly delegated to a different body,”27 27.Id.Show More such as the Electors to vote, the President of the Senate to count the votes, and, in the absence of a majority, the House of Representatives to choose the President and the Senate to choose the Vice President.28 28.Id.Show More This leaves no role for the states after they appoint Electors. In addition, the Constitution “sets the precise number of electors,” and therefore “the state may not appoint additional electors to cast new votes in favor of the candidate preferred by the state.”29 29.Id. at 943.Show More

III. Critique of the Court’s Reasoning

A. Expectations and The Federalist Papers

The Tenth Circuit fails to consider expectations of other Founders and ratifiers that differ significantly from those of Hamilton and Jay. It also neglects to acknowledge that Hamilton’s and Jay’s other expectations about the Appointments Clause proved to be wrong. Expectations are just expectations. They do not control constitutional interpretation.

A second, competing expectation was that states would choose the President. James Madison wrote in The Federalist No. 39 that “[t]he immediate election of the president is to be made by the states in their political characters.”30 30.The Federalist No. 39 (James Madison).Show More At the Massachusetts ratifying convention, Increase Sumner explained that “the president is to be chosen by electors under the regulation of the state legislature,”31 31.2 Elliot, supra note 7, at 86.Show More and the Rev. Samuel Stillman stated that “[t]he president, and senators are to be chosen by the interposition of the legislatures of the several states, who are the representatives and guardians of the people.”32 32.Id. at 171–72.Show More A New York ratifier asserted in 1789 that the Electors are the “voice of the state governments.”33 33.Proceedings of the Legislature, N.Y. Daily Gazette, Feb. 16, 1789, at 170 (statement attributed to Harrison, presumably referring to Richard Harison).Show More Massachusetts commentators claimed in 1796 that the President represents the states, in part because in the absence of an electoral majority the Constitution requires congressional voting by states.34 34.See Legislature of Massachusetts, Argus, June 3, 1796, at 3. Each state receives one vote when the House elects the President, both under the original Constitution and the Twelfth Amendment.Show More Another New Yorker explained in 1800 that “[o]ur electors represent the government of this state.”35 35.Important Debate, Republican Watch-Tower, Apr. 9, 1800, at 1.Show More In yet a third expectation, Charles Cotesworth Pinckney, James Wilson, and Edmund Randolph stated that the people elect the President through the Electors.36 36.See James C. Kirby, Jr., Limitations on the Power of State Legislatures over Presidential Elections, 27 Law & Contemp. Probs. 495, 505 (1962).Show More

This competing history supports the interpretation that states may bind Electors to the result of the popular vote. Indeed, it has been suggested that Hamilton’s personal ambition drove his vision of wise Electors acting independently.37 37.See id.Show More He was probably the least popular of the Founders.38 38.See, e.g., Sarah Laskow, 10 Things That You Have Secretly Been Dying to Know About the World of ‘Hamilton’, Atlas Obscura (Dec. 30, 2015), https://www.atlasobscura.com/­articles/10-things-that-you-have-secretly-been-dying-to-know-about-the-world-of-hamilton [https://perma.cc/XKJ7-Q855].Show More The Federalist Papers were inconsistent advocacy pieces pitched to differing constituencies to achieve ratification. They laid the groundwork for self-serving interpretations of the Constitution, much like statements in the legislative history of congressional statutes today.39 39.See, e.g., Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005, 1005 (1992) (objections to utilizing legislative history for statutory interpretation, including the view that staff and lobbyists draft the history).Show More

The Tenth Circuit’s opinion also ignores other expectations of Hamilton and Jay that proved to be wrong. Both expected that the people would choose the Electors.40 40.See The Federalist No. 64 (John Jay), No. 68 (Alexander Hamilton).Show More Yet state legislatures appointed Electors for years after ratification.41 41.See, e.g., McPherson v. Blacker, 146 U.S. 1, 12–14 (1892) (argument of appellants, noting legislative appointments from the first presidential election through as late as 1876).Show More The votes of those Electors counted.

Hamilton expected that Electors would be persons “most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice.”42 42.The Federalist No. 68 (Alexander Hamilton).Show More Jay expected that the Electors would be “the most enlightened and respectable citizens”43 43.Baca v. Colo. Dep’t of State, 935 F.3d 887, 954 (10th Cir. 2019) (quoting The Federalist No. 64 (John Jay)).Show More whose “discernment” would presumably ensure that the President would always be chosen from among “those . . . whose reputation for integrity inspires and merits confidence.”44 44.The Federalist No. 64 (John Jay).Show More Yet voters in early elections complained that they could not know all of the Elector candidates;45 45.See Philadelphia, Jan. 8., Pa. Gazette, Jan. 8, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue).Show More both the people and state legislatures have chosen mere “puppets” as Electors;46 46.McPherson, 146 U.S. at 15 (argument of appellants).Show More ballots in popular presidential elections routinely fail to include even the names of the proposed Electors;47 47.See, e.g., Mike Rappaport, Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?, Originalism Blog (Dec. 27, 2016), https://originalismblog.­typepad.com/the-originalism-blog/2016/12/why-does-the-unconstitutionality-of-prohibiting-faithless-electors-seem-problematicmike-rappaport.html [https://perma.cc/N45A-M5J5].Show More and Electors have chosen Presidents entirely lacking in integrity. The votes of those Electors also counted.

Not even a unanimous expectation of the Founders could invalidate any of these practices any more than state laws binding Electors. As the Supreme Court has expounded, “we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created.”48 48.McPherson, 146 U.S. at 36.Show More

B. Public Meaning of Words in the Electoral Clauses

The competing expectations suggest that the Tenth Circuit’s semantic interpretation is too thick. Indeed, the court’s dictionary definitions can be read thinly to include electors bound to vote by ballot for a specific candidate,49 49.Period definitions of “ballot” include “[a] little ball or ticket used in giving votes,” see Baca v. Colo. Dep’t of State, 935 F.3d 887, 944 (10th Cir. 2019) (quoting 1 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whether the ballot reflects a proxy or the volition of the person who gives it. Period definitions of “vote” include “[s]uffrage; voice given and numbered,” see id. (quoting 2 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whose voice is given and numbered. Period definitions of “elector” include “one who elects,” see id. (quoting Noah Webster, A Compendious Dictionary of the English Language (1806)), without specifying whether under a proxy or by volition.Show More such as by a proxy. Proxies were used in Anglo-American elections well before the adoption of the Constitution.50 50.See, e.g., Saul Levmore, Precommitment Politics, 82 Va. L. Rev. 567, 617 n.103 (1996); see also Acts and Laws of the State of Connecticut, in America 45 (1784) (penalizing voters who provide more than one vote or proxy at elections).Show More

Late eighteenth-century legal and general usage also includes thin meanings that encompass both free and bound electors. Period usage distinguished electors who were “bound” from those who could “vote for whom they pleased,”51 51.James Monroe, A View of the Conduct of the Executive, in the Foreign Affairs of the United States, Connected with the Mission to the French Republic, During the Years 1794, 5, & 6, at 273 (1797), https://hdl.handle.net/2027/uc2.ark:/13960/t79s1mp9k?urlappend=­%3Bseq=349.Show More the “dependent elector from him who exercises this first right of a freeman, agreeably to the dictates of his mind,”52 52.1 T.H.B. Oldfield, An Entire and Complete History, Political and Personal of the Boroughs of Great Britain 258 (1792), https://hdl.handle.net/2027/mdp.39015051139007?­urlappend=%3Bseq=498.Show More and “unworthy and dependant [sic] electors” from “worthy independent electors.”53 53.William Paxton, A Complete Collection of the Papers Which Were Published on Occasion of the Late Canvass and Election, for the Borough of Newark, in the Months of May and June, 1790, at 46–47 (2d ed. 1791) (capitalization omitted).Show More A voter could be influenced in varying degrees and remain an “elector.” Period texts are replete with references to obliged,54 54.See 1 James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses 158 (J.B. Gent ed., 1774), https://hdl.handle.net/2027/pst.000055464277?urlapp­end=%3Bseq=198.Show More bribed,55 55.See James Drake, The History of the Last Parliament: Began at Westminster, the Tenth Day of February, in the Twelfth Year of the Reign of King William, An. Dom. 1700, at 209 (2d ed. 1702), https://hdl.handle.net/2027/mdp.39015062365013?urlappend=%3Bseq=247; see also Letter from Governor Winthrop to Governor Bradford, Nat’l Archives (Feb. 16, 1767), https://founders.archives.gov/documents/Adams/06-01-02-0067-0012 [https://perma.­cc/2SJE-D5PA] (“Suppose . . . members . . . purchased the votes of the electors by bribery.”).Show More corrupt,56 56.See Drake, supra note 55, at 209.Show More and venal57 57.See 1 Charles Johnstone, The Reverie: Or, a Flight to the Paradise of Fools 9 (1763), https://hdl.handle.net/2027/uc1.31175035193765?urlappend=%3Bseq=33.Show More electors. Those with power could “dictate to the Electors in the most absolute manner.”58 58.Letter from Ulster Volunteer Corps Comm. of Correspondence to Benjamin Franklin, Nat’l Archives (July 19, 1783), https://founders.archives.gov/documents/Franklin/01-40-02-0203 [https://perma.cc/93M9-7Y48].Show More “[C]orrupt electors” were known to include a special word or mark on their “ballot” to prove during the count that they had given their “vote” as promised.59 59.John Cartwright, The People’s Barrier Against Undue Influence and Corruption: Or the Commons’ House of Parliament According to the Constitution 120 (2d ed. 1780).Show More

Period usage demonstrates that a person could be an “elector” casting a “vote” with a “ballot” even when bound or coerced. This is true in both objectionable circumstances, such as bribery, and unobjectionable ones, such as proxies. Two descriptions of elections that predate the adoption of the Constitution illustrate thin usage that does not involve electors exercising their free will. One is from John Rutledge, Jr., to Thomas Jefferson:

[A]t a meeting of the people, it was moved that instructions should be given to the electors “to vote for Mr. de Mirabeau” but being informed by his friends that it would be less flattering and honorable to be in this manner elected than by the free will of the voters the motion was withdrawn.60 60.Letter from John Rutledge, Jr., to Thomas Jefferson, Nat’l Archives (Apr. 3, 1789), https://founders.archives.gov/documents/Jefferson/01-15-02-0019 [https://perma.cc/DSY6-ZZVU].Show More

The other is a description of college electors61 61.See Magdalen College and King James II, 1686–1688, at 36 (Rev. J.R. Bloxam ed., 1886), https://hdl.handle.net/2027/uiug.30112085280698?urlappend=%3Bseq=92 (voted in accordance with his judgment of who was better qualified, “according to the oath I had then newly taken, as a Senior Fellow, and a new Elector”).Show More bound by statutes and oath to elect only presidents who had specified qualifications.62 62.See Abel Boyer, The History of King William the Third 107–08 (1702), https://hdl.handle.net/2027/mdp.39015021305126?urlappend=%3Bseq=269.Show More The King of England sometimes commanded them to elect a particular candidate; they complied when the candidate had those qualifications but refused when one did not, explaining:

As to their former practice, when they have elected in obedience to the king’s letter heretofore, it has been always in such cases where the persons recommended have been every way qualified for the office by their statutes: in which cases they always have been, and ever will be, ready to comply with his majesty’s pleasure; it not being without unspeakable regret, that they disobey the least of his commands.63 63.12 T.B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 7 (1816).Show More

Consequently, the electors “did most humbly pray his majesty to leave them to a free election, or recommend such a person to them as was capable by their statutes.”64 64.Id. at 3.Show More

There is nothing in the meanings of the words “elector,” “vote,” or “ballot” that precludes a state from either leaving its Electors to a free election or binding them to vote for a qualified candidate chosen in a popular vote.

C. (In)Consistent Usage in the Constitution

The Tenth Circuit’s analogy to individual electors is unpersuasive. Meaning depends on context, which includes underlying constitutional principles.65 65.Cf. Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 Ga. L. Rev. 1, 9 (2017) (considering five top-tier constitutional values to determine the constitutional meaning of “emoluments”).Show More But context is controversial, is frequently disputed, and prevents the non-normative identification of constitutional “meanings” as historical facts. As a delegate to the New York ratifying convention later noted in a debate over the Appointments Clause, people “are not only apt to draw different inferences from the same circumstances, but will differ as to the circumstances themselves.”66 66.Proceedings of the Legislature, supra note 33, at 170.Show More Indeed, the Supreme Court has rejected analogies between voting by Electors and voting by individual electors because their contexts differ.67 67.See, e.g., Reynolds v. Sims, 377 U.S. 533, 574–75 (1964).Show More

In addition, the Supreme Court precedents like Powell v. McCormack that recognize House elector independence rely on a fundamental underlying principle of representative democracy,68 68.See, e.g.,Baca v. Colo. Dep’t of State, 935 F.3d 887, 945–46 (10th Cir. 2019) (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).Show More not the definition of the word “elector.” That same principle of representative democracy might support a state’s power to bind Electors to the result of the popular vote. Individual electors differ significantly from Electors. Individual electors have the right not to vote,69 69.See, e.g., Philadelphia, Jan. 8, supra note 45 (asserting that the system of choosing Electors statewide rather than from local districts “subjected many citizens either to the necessity of voting for men wholly unknown to them, of giving an unavailing vote, or waving their right of suffrage”); see also Legislative Acts, Country J., July 11, 1787, at 1 (allowing each elector to vote for all of the county’s allocated seats in the state Assembly or “so many of them as such elector shall think proper to vote for”).Show More consistent with an underlying theory of representative democracy that suffrage is a personal right.70 70.See, e.g., Int’l Inst. for Democracy & Electoral Assistance, Compulsory Voting [hereinafter “IDEA”], https://www.idea.int/data-tools/data/voter-turnout/compulsory-voting [https://perma.cc/S6NG-7L8V] (“Most democratic governments consider participating in national elections a right of citizenship.”).Show More The Constitution requires Electors to vote,71 71.See U.S. Const. amend. XII.Show More and states have long mandated their voting and sanctioned unexcused dereliction.72 72.See infra note 116.Show More This is consistent with a competing theory of representative democracy in which voting is a duty that the state can impose and regulate,73 73.See, e.g., IDEA, supra note 70 (“In some countries, where voting is considered a duty, voting at elections has been made compulsory and has been regulated in the national constitutions and electoral laws. Some countries go as far as to impose sanctions on non-voters.”).Show More consistent with the non-Hamiltonian view of Electors discussed above.

The Electoral Clauses illustrate the inconsistency of constitutional usage. They specify both that states “shall appoint” Electors74 74.U.S. Const. art. II, § 1, cl. 2.Show More and that Electors “shall . . . vote” for President and Vice President.75 75.Id. amend. XII.Show More Yet some interpret the word “shall” as permissive for states although imperative for Electors.76 76.See, e.g., McKnight, supra note 13, at 44 (permissive for states); infra note 116 (imperative for Electors).Show More Others, however, interpreted “shall appoint” as imperative in the early years of the Republic. A group of Federal Republicans described appointment as a “high constitutional obligation.”77 77.Federal Meeting, Pa. Gazette, Nov. 12, 1800, https://www.accessible-archives.com/­collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue) (statement of a meeting of Federal Republicans).Show More Pennsylvania Governor Thomas McKean, a signer of the Declaration of Independence and former president of the Continental Congress, called appointment “a solemn obligation to our sister states . . . that must, at all events, be performed,” with any failure representing “the virtual secession of” the state and “a vital stab to the Union.”78 78.Lancaster, November 14, Pa. Gazette, Nov. 19, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue).Show More

The Fourteenth Amendment protects “the right to vote at any election for” Electors, members of Congress, and other specified positions.79 79.U.S. Const. amend. XIV.Show More However, some assert that the right to vote for Electors is merely a contingent one that exists only if the state legislature chooses to allow a popular election.80 80.See McPherson v. Blacker, 146 U.S. 1, 39 (1892). One could argue that the Twenty-Sixth Amendment created a popular right to vote for Electors. The Court’s reasoning in McPherson militates against that argument.Show More

Two other words that are critical to the Electoral Clauses, “State” and “Legislature,” also have different usages within the Constitution and have given rise to conflicting interpretations of those Clauses.81 81.See, e.g., McKnight, supra note 13, at 39–44 (discussing the meaning of the term “State”); see also infra notes 95–98 and accompanying text (discussing the meaning of the term “Legislature”).Show More The word “State” can refer to a body politic, a geographic area of a body politic, or the sovereign group of people who make up a body politic.82 82.See, e.g., Boston, June 7, Pa. Gazette, June 18, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue); see also Texas v. White, 74 U.S. 700, 720 (1869) (discussing various possible definitions of “State”).Show More In the context of the Appointments Clause, some have argued that the word “State” means the body politic rather than the people,83 83.See, e.g., Important Debate, supra note 35, at 1; see also Boston, June 7, supra note 82 (describing the argument that the word “State” for purposes of appointing Electors is best understood to refer to the body politic).Show More in part because whenever the Constitution gives power to the people, it does so expressly.84 84.See Important Debate, supra note 35, at 1.Show More Under this interpretation, the Constitution allows the legislature to authorize itself, the people, the governor, or anyone else—even non-citizens—to appoint the state’s Electors. Others have argued that the word means the people as a sovereign group85 85.See, e.g., Important Debate, supra note 35, at 1; see also Albany, November 19, N.Y. J. & Patriotic Reg., Nov. 30, 1799, at 4 (pointing to the problems with defining “State” as the legislature); Boston, June 7, supra note 82 (arguing “State” means body politic in the context of appointing Electors).Show More because the right of choosing Electors is an inherent power of the people that they never delegated to the legislature86 86.See Boston, June 7, supra note 82.Show More and because the “oracular” Alexander Hamilton said that the people would choose Electors, relying on the same text from The Federalist Papers that the Baca court does in its opinion.87 87.See Albany, November 19, supra note 85, at 4.Show More Under this interpretation, only the people can appoint Electors. The legislature can only determine the manner in which the people choose.

Yet others have acknowledged that the word is unclear in context and have argued for a default rule that all government power, including the power to appoint Electors, should reside in the people where the Constitution is unclear.88 88.See New York, Friday November 28, 1800, Republican Watch-Tower, Nov. 29, 1800, at 2.Show More

The Supreme Court rejected a descriptively and prescriptively thick meaning of “State” in McPherson v. Blacker.89 89.146 U.S. 1 (1892).Show More The appellants argued that “State” means a sovereign political corporation with a full range of judicial, military, and other powers, a sovereign “greater almost than the United States.”90 90.Id. at 10–11.Show More Therefore, the clause “[e]ach State shall appoint . . . a Number of Electors”91 91.U.S. Const. art. II, § 1, cl. 2.Show More prescribes that the State as a whole must appoint all of its Electors. The legislature cannot cut up the state’s sovereign power and “divide it among . . . disjointed fractions of the territory of the State, each of which shall choose one elector.”92 92.McPherson, 146 U.S. at 11.Show More The Supreme Court rejected this thick meaning of “State” with its implicit set of substantive constitutional rights and powers. The Court found that in this context the Constitution uses the word “State” in an ordinary sense and that a “State does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established.”93 93.Id. at 25.Show More Consequently, state legislatures are free to prescribe any manner of appointing Electors, including by districts.94 94.See id. at 35–36.Show More

The word “Legislature” may refer to a state’s lawmaking procedure,95 95.See Kirby, supra note 36, at 502.Show More to the people as a whole,96 96.See Michael McLaughlin, Note, Direct Democracy and the Electoral College: Can a Popular Initiative Change How a State Appoints Its Electors?, 76 Fordham L. Rev. 2943, 2966 (2008).Show More or to a distinct representative body.97 97.See Kirby, supra note 36, at 502.Show More As it regards a representative body, the word might refer to a body constrained by fundamental state law (including the state constitution, executive veto, and judicial review) or to a radically independent body unconstrained by any state law or authority.98 98.See id. at 502–03.Show More Historically, some have argued that “Legislature” means both branches with their usual powers, including each branch’s power to reject the other’s proposals.99 99.See New York, Saturday November 8, 1806, Spectator, Nov. 12, 1800, at 3; see also Proceedings of the Legislature, supra note 33, at 170 (statement of Harison).Show More Others have claimed that the Appointments Clause permits a joint ballot.100 100.See, e.g., Important Debate, supra note 35, at 1.Show More

Some commentators have believed that state law governed the question. One, for example, asserted that the Federal Constitution was unclear, so by default the state constitution should determine whether a joint ballot was allowed or concurrence required: “It was useless to say that the Legislature were to direct the manner, if the [federal] constitution had already prescribed it, and left no alternative.”101 101.Pennsylvania Legislature, in Senate, Friday, November 14, Pa. Gazette, Nov. 26, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue).Show More Some Supreme Court Justices have argued, however, that the use of the term “Legislature” in the Appointments Clause prescribes some degree of freedom for the legislature from state law and from other branches of state government when choosing the manner of appointing Electors.102 102.See Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 733–36 (2001) (discussing the Supreme Court’s rulings on the disputed Florida vote count in the 2000 presidential election). Smith details the history of lower court decisions on legislative independence in a variety of constitutional contexts.Show More

History and semantics cannot resolve disputes over the consistency or inconsistency of constitutional usage. Nor can they determine whether to impute a prescriptively thick meaning to a word within the Electoral Clauses or, as in the case of McPherson and “State,” not to impute one.

D. Contrast to the “Take Care” Clause

The Tenth Circuit’s contrast to the President’s obligation to “take care” is also unconvincing. The Constitution allows Congress to delegate the power to appoint inferior officers to the judiciary and department heads without imposing on them an express duty to take care to perform their functions faithfully.103 103.See U.S. Const. art. II, § 2, cl. 2.Show More Yet their power to appoint includes the power to remove.104 104.See United States v. Allred, 155 U.S. 591, 594 (1895) (court commissioner); see also In re Hennen, 38 U.S. 230, 258–59 (1839) (judicial clerk). Both cases are cited in Petition for Writ of Certiorari at 21, Colo. Dep’t of State v. Baca, No. 19-518 (Oct. 16, 2019).Show More In the late eighteenth century, other general powers to appoint also included an implicit power to revoke.105 105.See, e.g., John Joseph Powell, An Essay on the Learning Respecting the Creation and Execution of Powers 287–88 (2d ed. 1791), https://hdl.handle.net/2027/nyp.334330084­79796?urlappend=%3Bseq=317 (summarizing property case law: “A power of appointment includes in itself a right to appoint either absolutely, or with a power of revocation, although no express power of revocation be reserved in the deed creating the power of appointment.”).Show More

In addition, the absence of an express obligation to take care does not forbid states to take care. Under the competing constitutional history described above, states should take care that Electors perform their function. And states have done so from the beginning of the Republic by establishing Elector qualifications, regulating Electors, and regulating the treatment of Electors.

Some states limited eligibility to freeholders.106 106.See, e.g., An Act for the Appointment of Electors to Choose a President Pursuant to the Constitution of Government for the United States, Virginia, Acts of 1788, ch. 1, pa. 1, § 2 (1788) [hereinafter “Virginia Act”], https://hdl.handle.net/2027/hvd.hxh5uh?urlappend=%3­Bseq=279 (limitation to “some discreet and proper person, being a freeholder, and bona fide resident in such district for twelve months”); see also An Act Relative to the Appointment of Electors to Vote for a President and Vice-President of the United States, The Acts of the General Assembly of the State of North-Carolina, ch. 16, § 1 (1792) [hereinafter “North Carolina Act”], https://hdl.handle.net/2027/mdp.35112203943248?urlappend=%3Bseq=58 (limitation to “discreet and sober person, being a freeholder and actually resident within the district for which he shall be elected”).Show More Some imposed minimum residency requirements.107 107.See, e.g., supra note 106; see also Frank Fletcher Stephens, The Transitional Period, 1788–1789, in the Government of the United States 71 (1909), https://hdl.handle.net/­2027/uc1.c2774348?urlappend=%3Bseq=83 (New Hampshire limitation to state inhabitants); id. at 72 (Massachusetts limitation to inhabitants of districts from which elected).Show More Tennessee required three years of residence immediately prior to selection and eligibility to the General Assembly.108 108.See An Act to Appoint Electors to Elect a Pr[e]sident and Vice-President of the United States, Tennessee, ch. 46, §§ 3–4 (1799) [hereinafter “Tennessee Act of 1799”]; see also An Act Providing for the Election of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 4, §§ 4–5 (1796) [hereinafter “Tennessee Act of 1796”] (including an alternative residency qualification for anyone “who was a resident of the district at the time of making the constitution”).Show More New York excluded members of the state legislature.109 109.See Albany, November 26, Albany Reg., Nov. 26, 1792, at 2 (in an election for which the legislature appointed the state’s Electors).Show More

These period practices are notable for two reasons. First, a residency requirement substantively limits an Elector’s discretion when voting for the President and Vice President. Only nonresident Electors110 110.In 1800, a member of the New York Assembly opposed allowing voters to choose Electors from outside the state merely because they “think that men of more wisdom might be got there than here.” Important Debate, supra note 35, at 1 (statement of Jedediah Peck).Show More may cast both of their ballots for residents of an appointing state.111 111.SeeU.S. Const. amend. XII (“Electors . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves . . . .”); cf. U.S. Const. art. II, § 1, cl. 3 (repealed 1804) (“Electors . . . vote . . . for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.”).Show More Second, the Constitution does not impose any eligibility requirements for Electors other than excluding Senators, Representatives, and holders of certain federal offices.112 112.See U.S. Const. art. II, § 1.Show More That omission might be interpreted to prohibit any other eligibility requirements.113 113.The Baca court acknowledged but did not reach the argument that a statute binding Electors “unconstitutionally adds new requirements for . . . holding the office of elector” under the reasoning in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995) (finding that the Constitution forbids states to add congressional qualifications beyond explicitly enumerated ones). Baca v. Colo. Dep’t of State, 935 F.3d 887, 938–39 n.20 (10th Cir. 2019).Show More The Constitution might grant a right of eligibility to everyone else—even British prime ministers.114 114.Cf. Important Debate, supra note 35, at 1 (New York Assembly member Jedediah Peck asserting that the doctrine of popular sovereignty that justifies giving voters the right to choose Electors from outside of their local districts would allow them “the privilege of choosing Billy Pitt, or any other European,” referring to then-Prime Minister William Pitt, the Younger). Only Maine and Nebraska choose Electors by local districts today. See Nat’l Archives, Distribution of Electoral Votes (Dec. 23, 2019), https://www.archives.gov/electoral-college/allocation [https://perma.cc/VF8G-8LS5].Show More However, historical practice shows that many understood the Constitution to allow states the power to limit eligibility. This practice is consistent with an interpretation that states have inherent substantive powers over Electors, not merely formal power over the manner of their appointment.

States have also used more direct measures to take care that Electors perform their function. The Appointments Clause provides that Electors “shall . . . vote” for President and Vice President,115 115.U.S. Const. amend. XII.Show More and some states have required Electors to vote and sanctioned those who failed to do so without an enumerated excuse.116 116.See Amicus Curiae Brief of Derek T. Muller in Support of Neither Party at 14–15, Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019) (No. 18-1173) [hereinafter “Muller”] (citing statutes from Virginia in 1788 and Kentucky in 1799); see also North Carolina Act, supra note 106, at § 4 (two hundred pound fine for “failing to attend and vote” absent sickness or unavoidable accident).Show More Some states granted Electors some or all privileges of state legislators during their service and paid them for their time and expenses.117 117.See, e.g., North Carolina Act, supra note 106, at § 5 (granting Electors the same privileges as members of the General Assembly and paying for their time and expenses); Tennessee Act of 1796, supra note 108, at § 8 (paying for time and expenses); Virginia Act, supra note 106, at § 9 (granting the same privilege from arrest as members of the general assembly and paying for time and expenses).Show More Tennessee required Electors to swear an oath to support the state and federal constitutions.118 118.See Tennessee Act of 1796, supra note 108, at § 9; see also Tennessee Act of 1799, supra note 108, at § 8 (“[E]lectors . . . shall take an oath to support the constitution of the United States, and also the constitution of this state . . . .”).Show More This takes care that Electors faithfully perform their obligations and suggests that a state statute may lawfully bind Electors. The obligation to uphold the state constitution likely includes the obligation to follow statutes enacted pursuant to it, including statutes binding Electors to their pledge.

E. Structure

The court’s structural argument is also unconvincing. States have appointed alternate Electors since early presidential elections119 119.See, e.g., Muller, supra note 116, at 13.Show More without express constitutional authorization and without exceeding their constitutionally allocated number of Electors. An early Tennessee statute, for example, provided that if any Elector “shall die, or refuse to act, the governor shall appoint some person in his stead.”120 120.See An Act Providing for the Appointment of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 11, § 2 (1796).Show More

The Constitution’s text does not expressly forbid states to interfere with an Elector’s discretion, and underlying constitutional principles of representative democracy and the relationship between states and Electors might support such a power. As described above, in early presidential elections, some states required Electors to vote, sanctioned those who failed to do so without an enumerated excuse, and required Electors to support the state and federal constitutions.

The Tenth Circuit’s argument is similar to one that the Supreme Court rejected in McPherson. The respondents argued that the Supreme Court had no jurisdiction to review the constitutionality of a state legislature’s chosen manner of appointing Electors because each step in the electoral process under state law and the Federal Constitution was assigned to another specific body, culminating with Congress.121 121.See McPherson v. Blacker, 146 U.S. 1, 21–22 (1892).Show More The Supreme Court responded that it has judicial power extending to all cases arising under the Constitution and can issue mandamus to carry its power into effect.122 122.See id. at 23–24.Show More The Constitution may not expressly grant the Court any step in the process, but underlying principles of judicial authority still apply.

Moreover, the Constitution gives Congress even less expansive powers over the electoral vote,123 123.See U.S. Const. art. II, § 1, cl. 4 (“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”); id. amend. XII (counting votes of Electors).Show More yet Congress has assumed greater ones.124 124.See, e.g., C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 516–25 (1925).Show More In particular, Congress has added steps subsequent to the counting of the Electors’ votes and the announcement of the result. Members of Congress can raise objections, after which both houses can consider the objections and together reject a state’s electoral votes.125 125.See 3 U.S.C. § 15 (2012).Show More This is true even though many members of the Philadelphia Convention rejected giving Congress any role in selecting the President,126 126.See, e.g., Tansill, supra note 124, at 517–18 (statements of Charles Cotesworth Pinckney); see also McKnight, supra note 13, at 30–32 (statements by Pinckney and others who attended the Convention); cf. Lemuel Sawyer, A Biography of John Randolph, of Roanoke 78 (1844), https://hdl.handle.net/2027/loc.ark:/13960/t0ft90p2f?urlappend=%3B­seq=82 (Rep. John Randolph in a later debate insisting that he “could not recognize in this House, or the other, singly or conjointly, the power to decide on the votes of any State” because the “electoral college was as independent of Congress as Congress was of them; and we have no right to judge of their proceedings”).Show More the Founding generation failed to agree on legislation to give Congress a role,127 127.See Tansill, supra note 124, at 517–19.Show More and the Supreme Court has held that “[t]he only rights and duties, expressly vested by the Constitution in the national government, with regard to the appointment or votes of presidential electors,” are to determine the time for choosing electors and the day on which they vote, and to open and count the votes in Congress.128 128.In re Green, 134 U.S. 377, 379 (1890).Show More Charles Cotesworth Pinckney, for example, insisted that state legislatures retain complete control over electoral disputes,129 129.See Tansill, supra note 124, at 518.Show More recognizing continuing state power long after the Electors’ appointment.

Finally, the federal government has invaded the express power of state legislatures to determine the manner of appointing Electors. Congress has required states to accept absentee ballots and prescribed the form of those ballots.130 130.See 52 U.S.C. § 20303(a)(1) (2012) (generally); id. § 20303(c)(2) (absentee write-in ballots for President and Vice President count whether they include the name of the candidate or the name of a party).Show More Congress has forbidden non-citizens to be Electors,131 131.See 18 U.S.C. § 611(a) (2012) (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President . . . .”).Show More to vote for Electors,132 132.See id. (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a . . . Presidential elector . . . .”).Show More and to make expenditures to influence federal elections.133 133.See, e.g., Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding the prohibition), summarily aff’d, 565 U.S. 1104 (2012).Show More This is true even though state legislatures authorized non-citizens to vote in early presidential elections,134 134.See, e.g., Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391, 1420 (1993); see also 71 Cong. Rec. 2270 (1929), https://hdl.handle.net/2027/uc1.l0073613093?urlappend=­%3Bseq=1114 (Rep. Lea describing the historical practice and noting that in 1918, seven states still allowed non-citizens to vote for President) ; cf. Cong. Globe, 30th Cong., 1st Sess. 167 (1848), https://hdl.handle.net/2027/mdp.39015020131085?urlappend=%3Bseq=167 (Rep. Levin criticizing the practice as a threat to republican government).Show More it was understood that the principle of popular sovereignty allowed voters to choose non-citizens as Electors,135 135.See Important Debate, supra note 35, at 1 (statement of Jedediah Peck). Peck recognized that a principle that allowed voters to choose Electors from outside of their local districts would also allow them to choose non-citizens. He opposed both applications of the principle. See id. Nonetheless, states today routinely allow voters to choose Electors from outside of their local districts. See supra note 114.Show More and the Constitution expressly excludes only Senators, Representatives, and those holding offices of profit or trust under the United States from the position.136 136.See U.S. Const. art. II, § 1.Show More

States might find it appropriate to allow non-citizens who pay income or property taxes to vote for Electors under the principle of no taxation without representation. States might also find it appropriate to allow any non-citizen to fund voter education in presidential elections in order to encourage informed voting. What might justify federal intrusion on the express state power to determine the manner of appointing its Electors? Perhaps an underlying principal of democratic self-government cited in Bluman v. Federal Election Commission,137 137.800 F. Supp. 2d at 288.Show More which might also justify state power to bind Electors to the result of the popular vote.

Neither the federal nor state governments interpret the scant express terms of the Electoral Clauses as exhausting their powers over Electors. Background constitutional principles permit greater powers, perhaps including state power to bind Electors to the result of a popular vote. But these background principles were contested at the adoption of the Electoral Clauses and remain contested today, particularly those governing the relative powers of the people and of the federal and state governments.

IV. Objections to Ascribing Thick Meanings

Permitting appeals to thick meanings leads to many interpretive difficulties. It is debatable whether to interpret many broad constitutional concepts, such as freedom of speech, “thickly to include specific examples of the concept or thinly to define only the concept itself.”138 138.Lawrence M. Solan, Can Corpus Linguistics Help Make Originalism Scientific?, 126 Yale L.J.F. 57, 57 (2016).Show More It is also debatable whether an appeal to thick meanings is a ruse to import the interpreter’s personal conceptions or to restrict interpretations to conservative conceptions prevailing at the adoption of the Constitution.139 139.Cf. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1270 (2019) (denying “that originalism is a thick ideological concept” but acknowledging that many conservatives might sell “‘originalism’ to their base on the basis that it leads to conservative results”).Show More

What if constitutional terms have thick meanings that no one can satisfy today? The Constitution limits presidential eligibility to natural born citizens.140 140.U.S. Const. art. II, § 1, cl. 5.Show More At adoption, natural born citizens had extensive legal advantages over non-citizens,141 141.These typically included limitations on non-citizens holding real property and preconditions to naturalized persons exercising electoral rights under state law. See, e.g., 12 Debates in the House of Representatives, Second Session: January–March 1790, in Documentary History of the First Federal Congress of the United States of America, 4 March 1789–3 March 1791, at 162–63, 167, 497 (Helen E. Veit et al. eds., 1994).Show More based on a theory of personal loyalty.142 142.See, e.g., Calvin v. Smith (1608) 77 Eng. Rep. 377, 399.Show More Many of those advantages have been eliminated.143 143.See, e.g., Fred L. Morrison, Limitations on Alien Investment in American Real Estate, 60 Minn. L. Rev. 621, 624 (1976) (historical relaxation of restrictions on non-citizen ownership of real property in the United States).Show More If the Constitution incorporates a descriptively thick meaning of the term that includes all of those advantages, then no one is eligible to the presidency today.

Prescriptively thick meanings create even greater problems. Does “natural born citizen” have a prescriptively thick meaning that mandates retaining all of the advantages that existed in 1789? If so, all laws that eliminated those advantages are unconstitutional. Both the state and federal governments must restore the status quo from 1789.

The Constitution provides that voters for the House of Representatives must meet the same eligibility requirements as those to vote for “the most numerous Branch of the State Legislature.”144 144.U.S. Const. art. I, § 2, cl. 1.Show More Is the term “most numerous” prescriptively thick, requiring states to have multicameral legislatures? If so, are Nebraska’s electoral votes invalid because its Electors are appointed under provisions enacted by a unicameral legislature?

If words like “Elector” prescribe freedom from state control, do they also prescribe freedom from federal control? Do they prescribe complete freedom in voting, including freedom to vote as promised when bribed? Eighteenth-century electors routinely accepted bribes.145 145.See, e.g., supra note 55; see also Letter from Benjamin Franklin to William Franklin: Journal of Negotiations in London, Nat’l Archives (Mar. 22, 1775), https://founders.­archives.gov/documents/Franklin/01-21-02-0306 [https://perma.cc/EW3Q-YWU4] (“For the elected House of Commons is no better, nor ever will be while the Electors receive Money for their Votes, and pay Money where with Ministers may bribe their Representatives when chosen.”).Show More

A nineteenth-century commentator argued that the Appointments Clause gives states the untrammeled power to appoint villains146 146.See McKnight, supra note 13, at 119.Show More and requires Congress to count the vote of a known-bribed Elector,147 147.See id. at 120.Show More “not because it is an honest vote, but solely because it is a vote.”148 148.Id.Show More If instead some underlying principle allows limits on bribed Electors’ freedom to vote as they choose, why cannot it or another underlying principle allow states or the federal government to bind Electors to the result of the popular vote in their appointing state?

How do we determine which potential prescriptively thick meanings to incorporate? Rob Natelson argues that Electors are free to vote as they please because a process under the 1776 Maryland Constitution utilized electors, the constitution required those electors to swear that they would vote freely, and therefore the public would have expected Electors to vote freely.149 149.See Rob Natelson, Presidential Elector Discretion: The Originalist Evidence, Independence Inst. (Jan. 4, 2018), https://i2i.org/presidential-elector-discretion-originalist-evidence/ [https://perma.cc/V472-LNPJ].Show More But the Maryland Constitution also required the electors to vote only for “men of the most wisdom, experience and virtue.”150 150.Md. Const. of 1776, art. XV.Show More Would the public have expected Electors to follow this requirement also, thus incorporating it into a prescriptively thick meaning of “Elector” and invalidating the election of many American Presidents? One commentator suggested that the Founders were “a shade too lax” in omitting such a requirement from the Constitution.151 151.McKnight, supra note 13, at 112. McKnight also notes that the Maryland Constitution separately required voters to choose electors from among only “the most wise, sensible, and discreet of the people.” Id. at 111–12. If a prescriptively thick meaning of “Elector” incorporates this rule, it would likely have invalidated the appointment and votes of many historical Electors. McKnight also lamented that the Founders were “a shade too lax in omitting” this separate requirement from the Federal Constitution as well. Id. at 112; cf. Md. Const. of 1776, art. XIV (prerequisites for electors by cross reference to article II of the Maryland Constitution). Does the failure to include this requirement in the Electoral Clauses negate the Hamiltonian theory of wise Electors voting independently?Show More Perhaps they were also a shade too lax in omitting express authorization for Electors to vote as they please, leaving states free to bind Electors to the result of a popular vote.

In addition, the Constitution lacks any oaths for Electors despite requiring them for other purposes, including for Senators when sitting in impeachments.152 152.See U.S. Const. art. I, § 3, cl. 6; see also id. art. II, § 1, cl. 8 (oath of President); id. art. VI, cl. 3 (oath of Senators, Representatives, members of state legislatures, and all federal and state executive and judicial officers).Show More Does the Constitution’s silence implicitly import the substance of the Maryland oath or exclude it under the principle expressio unius est exclusio alterius? The Articles of Confederation provided for state delegates to be “appointed in such manner as the legislature of each State shall direct . . . with a power reserved to each State[] to recall its delegates . . . and to send others in their stead.”153 153.Articles of Confederation of 1781, art. V, para. 1.Show More Does the state’s similarly phrased power to appoint Electors “in such Manner as the Legislature thereof may direct”154 154.U.S. Const. art. II, § 1, cl. 2.Show More import a substantive recall power because the public would have expected one given confederation history? Or does the Constitution’s silence on the point exclude that power? All of this is irrelevant speculation. As the Supreme Court has ruled, historical expectations cannot alter constitutional rights.155 155.See supra note 48 and accompanying text.Show More

Finally, the Supreme Court rebuffed an argument similar to Natelson’s in McPherson. The appellants noted that laws in force in every state at the adoption of the Fourteenth Amendment gave males the right to vote for Electors. Consequently, they argued, the Amendment’s protection of the “right to vote at an election for the choice of electors of President and Vice President” incorporated a substantive right to a popular vote for Electors thereafter.156 156.McPherson v. Blacker, 146 U.S. 1, 17 (1892).Show More The Court rejected the argument, finding that the Amendment only protects the right to vote for Electors if the state legislature allows a popular vote.157 157.See id. at 38–39.Show More

Many laws governed elections at the Founding. No appeal to history or semantics can demonstrate that the Electoral Clauses incorporate the rules of one but not the others. Non-originalist interpretive theories, on the other hand, forthrightly embrace norms like the Powell v. McCormack Court’s principle of representative democracy to resolve interpretive disputes like these.158 158.Cf. Christopher R. Green, “This Constitution”: Constitutional Indexicals as a Basis for Textualist Semi-Originalism, 84 Notre Dame L. Rev. 1607, 1617 n.21 (2009) (evaluating theories that utilize non-originalist modes of constitutional discourse such as prudence and ethics).Show More

Conclusion

The Tenth Circuit’s analysis in Baca does not resolve the dispute over Elector independence in any historically determined way. It unites selective readings of incomplete linguistic, historical, and judicial materials by applying background political principles that were contested at the adoption of the Constitution and remain contested today. Contrary constitutional history, practice, and underlying principles support state power over Electors long after their appointment, perhaps including the power to bind them to the result of a popular vote.

The Supreme Court should reject the Tenth Circuit’s reasoning and its conclusion that the state’s power ends with the appointment of Electors. The Court should develop a coherent theory of the relationship of the people, the states, and the federal government in the presidential electoral process. In doing so, it might consider the following questions.

Non-Bribed Electors

Are Electors radically free to vote as they choose, free from any state or federal influence or sanction?

Can Electors refuse to vote despite the constitutional requirement that they shall vote?159 159.Cf. McKnight, supra note 13, at 120–21 (asserting an Elector’s right not to vote).Show More Can Electors cast a blank ballot or a knowingly invalid ballot (such as for a person who has not attained the age of thirty-five)?160 160.Cf. id. at 73–83 (discussing obviously invalid electoral votes); id. at 311 (whether to count electoral votes cast for Horace Greeley despite his death between the 1872 general election and the meeting of the Electors).Show More

If they can, do such Electors count as “appointed” for purposes of calculating the majority of appointed Electors required to win the presidency?161 161.See U.S. Const. amend. XII.Show More

If Electors are not radically free, what justifies constraints on their freedom?

Do Electors owe any duties? If so, to whom? To the appointing state? To the people of the appointing state? To the people of the entire nation?162 162.Cf. supra note 78 and accompanying text (Gov. McKean asserting a constitutional obligation to sister states to appoint Electors).Show More

What duties might Electors owe? A duty of good faith in exercising the function of choosing the President? A duty to follow state or federal law, including laws requiring them to vote?

Can states appoint alternate Electors? Under what circumstances may an alternate vote—upon the failure of an Elector to appear, or to vote, or to vote for a qualified candidate?

Can the state call in the alternate in the permitted circumstances even though that is an action that must occur after the appointment of Electors? Or can only the federal government? If the federal government refuses to call in an alternate, such as for political reasons, does the state have any remedy?

Can states punish Electors for their unexcused failure to vote? Can the federal government?

Bribed Electors

Are Electors radically free, even to accept bribes and to vote as promised?

Must Congress count a known-bribed vote?

Can the state and/or Congress replace a known-bribed vote with that of an honest alternate? If so, how late in the process? When Congress considers other objections to votes?

Can the state and/or the federal government punish Electors for accepting bribes, or does that infringe on the Elector’s freedom to vote at will?

Can the state and/or the federal government punish those who bribe Electors, or does that infringe on the Elector’s freedom to vote at will?

Other Federal Powers

Does Congress have the authority to take any steps after the counting of the electoral votes, such as investigating and judging the validity of those votes?

Does Congress have the authority to forbid non-citizens to vote for Electors, to be Electors, to advocate for the election of candidates, or otherwise to participate in the election of the President and Vice President?

Does Congress have the authority to impose other eligibility requirements for Electors?

Does Congress have the authority to bind Electors to vote for the winner of the appointing state’s popular vote or to authorize the state to bind them?

Underlying Principles

If Electors are not radically free to vote at will, what underlying principles govern state powers over them? What underlying principles govern federal powers over them?

Do these principles and the relative authority of states and the federal government turn on whether Electors owe duties to the appointing state, to the people of the appointing state, or to the people of the nation as a whole?

If Congress has the authority to interfere in the manner of appointing Electors, what principles justify that authority? Could those same principles justify state control over Electors, including the power to bind them to the result of a popular vote?

Powell and Bluman

Does the principle of representative democracy in Powell differ from the principle of democratic self-government in Bluman?163 163.See supra notes 20 and 137 and accompanying text.Show More If so, how, and how might the two principles apply to the question of Elector independence? A principle of representative democracy might support giving Electors the same independence as legislators. In that case, state legislatures should take greater care in choosing the manner of appointing Electors, perhaps limiting eligibility to state legislators of the candidate’s party.

A principle of democratic self-government might support state power to bind Electors to the result of a popular vote. That principle would not allow states to bind Electors in all circumstances, however. For example, a gerrymandered state legislature controlled by a minority party might attempt to appoint Electors directly and purport to bind them to vote for that party’s candidates regardless of the views of the state’s voters. A principle of democratic self-government might permit those Electors freedom to vote for the candidates favored by the majority of the state.

This Essay takes no position on how to apply these underlying principles or how to resolve the dispute over Elector independence. It does, however, urge the Court to embrace underlying principles as it did in Powell rather than attempt to find a purportedly non-normative, historically accurate, factual, originalist answer to the question, which does not exist.

  1. * B.A., Washington & Lee University; J.D., Harvard Law School; D.Phil., Oxford University; Member, New York State Bar. Thanks to the Tennessee State Library Archives and the editors of the Virginia Law Review Online. ↑
  2. Jason Harrow, The Originalist Take on Presidential Electors, Wash. Examiner (Sept. 9, 2019, 12:09 PM), https://www.washingtonexaminer.com/opinion/op-eds/the-originalist-take-on-presidential-electors [https://perma.cc/4K7A-6SDL]. ↑
  3. See Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019). ↑
  4. See, e.g., Associated Press, Justices To Consider Faithless Electors, Ahead of 2020 Vote, Politico (Jan. 17, 2020, 4:24 PM), https://www.politico.com/news/2020/01/17/justices-to-consider-faithless-electors-ahead-of-2020-vote-100631 [https://perma.cc/SF2E-FR49]. ↑
  5. See Baca, 935 F.3d at 947. ↑
  6. See, e.g., David Robertson, Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, 35 Ga. J. Int’l & Comp. L. 277, 279 (2007) (distinguishing thick constitutional meanings that instantiate ethical aspirations from thin ones that do not); see also Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 15 (2018) (arguing that “the thicker the communicative content” of constitutional text, “the less need there is to enter into” interpretive construction); cf. Lawrence B. Solum, Legal Theory Lexicon 028: Concepts and Conceptions, Legal Theory Lexicon, https://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_1.html [https://perma.cc/9HE5-UCTL] (last updated Oct. 13, 2019) (distinguishing between general concepts and more detailed, and competing, conceptions of those concepts). ↑
  7. See Baca, 935 F.3d at 945–46. ↑
  8. See 2 Jonathan Elliot, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 473 (2d ed. 1836), https://hdl.handle.net/2027/nc01.ark:/13960/t0qs1jm66?url­append=%3Bseq=76 (statement of James Wilson). ↑
  9. U.S. Const. art. II, § 1, cl. 2. ↑
  10. Quotations retain the capitalization of the original unless otherwise noted. ↑
  11. U.S. Const. amend. XII. ↑
  12. Prior to the Twelfth Amendment, the Electors did not vote for the two positions separately. They cast two votes. The person with the majority of votes became President, and the one with the next greatest number of votes became Vice President. See U.S. Const. art. II, § 1, cl. 3 (repealed 1804). The Amendment did not substantially change the remaining parts of the electoral process. ↑
  13. See, e.g., Letter from James Madison to Thomas Jefferson, Nat’l Archives (Mar. 15, 1800), https://founders.archives.gov/documents/Madison/01-17-02-0218 [https://perma.cc/­ZM3C-XHMV] (“It is not to be denied that the Constn. might have been properly more full in prescribing the election of P: & V. P. . . . .”). For example, the Constitution prescribes who shall judge the qualifications of Representatives and Senators but not who shall judge those of Electors. See U.S. Const. art. I, § 5, cl. 1 (each house to judge the qualifications of its own members). ↑
  14. David A. McKnight, The Electoral System of the United States 12 (Philadelphia, J. B. Lippincott & Co. 1878). ↑
  15. See, e.g., infra notes 82–87 and accompanying text (conflicting interpretations of “State” in the Appointments Clause). ↑
  16. Baca v. Colo. Dep’t of State, 935 F.3d 887, 947 (10th Cir. 2019). ↑
  17. Id. at 952–54 (quoting The Federalist Nos. 60, 68 (Alexander Hamilton), No. 64 (John Jay)). ↑
  18. Id. at 953 (quoting The Federalist No. 60 (Alexander Hamilton) (Consequently, “there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”)). Senators are now popularly elected. See U.S. Const. amend. XVII. ↑
  19. Baca, 935 F.3d at 945. ↑
  20. Id. ↑
  21. Id. at 946 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). ↑
  22. Id. ↑
  23. Id. at 940 (citing Myers v. United States, 272 U.S. 52, 175–76 (1926)). ↑
  24. Id. at 940–41; see also U.S. Const. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”). ↑
  25. Baca, 935 F.3d at 941. ↑
  26. Id. at 942. ↑
  27. Id. ↑
  28. Id. ↑
  29. Id. ↑
  30. Id. at 943. ↑
  31. The Federalist No. 39 (James Madison). ↑
  32. 2 Elliot
    ,

    supra note 7, at 86. ↑

  33. Id. at 171–72. ↑
  34. Proceedings of the Legislature, N.Y. Daily Gazette, Feb. 16, 1789, at 170 (statement attributed to Harrison, presumably referring to Richard Harison). ↑
  35. See Legislature of Massachusetts, Argus, June 3, 1796, at 3. Each state receives one vote when the House elects the President, both under the original Constitution and the Twelfth Amendment. ↑
  36. Important Debate, Republican Watch-Tower, Apr. 9, 1800, at 1. ↑
  37. See James C. Kirby, Jr., Limitations on the Power of State Legislatures over Presidential Elections, 27 Law & Contemp. Probs. 495, 505 (1962). ↑
  38. See id. ↑
  39. See, e.g., Sarah Laskow, 10 Things That You Have Secretly Been Dying to Know About the World of ‘Hamilton’, Atlas Obscura (Dec. 30, 2015), https://www.atlasobscura.com/­articles/10-things-that-you-have-secretly-been-dying-to-know-about-the-world-of-hamilton [https://perma.cc/XKJ7-Q855]. ↑
  40. See, e.g., Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005, 1005 (1992) (objections to utilizing legislative history for statutory interpretation, including the view that staff and lobbyists draft the history). ↑
  41. See The Federalist No. 64 (John Jay), No. 68 (Alexander Hamilton). ↑
  42. See, e.g., McPherson v. Blacker, 146 U.S. 1, 12–14 (1892) (argument of appellants, noting legislative appointments from the first presidential election through as late as 1876). ↑
  43. The Federalist No. 68 (Alexander Hamilton). ↑
  44. Baca v. Colo. Dep’t of State, 935 F.3d 887, 954 (10th Cir. 2019) (quoting The Federalist No. 64 (John Jay)). ↑
  45. The Federalist No. 64 (John Jay). ↑
  46. See Philadelphia, Jan. 8., Pa. Gazette, Jan. 8, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue). ↑
  47. McPherson, 146 U.S. at 15 (argument of appellants). ↑
  48. See, e.g., Mike Rappaport, Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?, Originalism Blog (Dec. 27, 2016), https://originalismblog.­typepad.com/the-originalism-blog/2016/12/why-does-the-unconstitutionality-of-prohibiting-faithless-electors-seem-problematicmike-rappaport.html [https://perma.cc/N45A-M5J5]. ↑
  49. McPherson, 146 U.S. at 36. ↑
  50. Period definitions of “ballot” include “[a] little ball or ticket used in giving votes,” see Baca v. Colo. Dep’t of State, 935 F.3d 887, 944 (10th Cir. 2019) (quoting 1 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whether the ballot reflects a proxy or the volition of the person who gives it. Period definitions of “vote” include “[s]uffrage; voice given and numbered,” see id. (quoting 2 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whose voice is given and numbered. Period definitions of “elector” include “one who elects,” see id. (quoting Noah Webster, A Compendious Dictionary of the English Language (1806)), without specifying whether under a proxy or by volition. ↑
  51. See, e.g., Saul Levmore, Precommitment Politics, 82 Va. L. Rev. 567, 617 n.103 (1996); see also Acts and Laws of the State of Connecticut, in America 45 (1784) (penalizing voters who provide more than one vote or proxy at elections). ↑
  52. James Monroe, A View of the Conduct of the Executive, in the Foreign Affairs of the United States, Connected with the Mission to the French Republic, During the Years 1794, 5, & 6, at 273 (1797), https://hdl.handle.net/2027/uc2.ark:/13960/t79s1mp9k?urlappend=­%3Bseq=349. ↑
  53. 1 T.H.B. Oldfield, An Entire and Complete History, Political and Personal of the Boroughs of Great Britain 258 (1792), https://hdl.handle.net/2027/mdp.39015051139007?­urlappend=%3Bseq=498. ↑
  54. William Paxton, A Complete Collection of the Papers Which Were Published on Occasion of the Late Canvass and Election, for the Borough of Newark, in the Months of May and June, 1790, at 46–47 (2d ed. 1791) (capitalization omitted). ↑
  55. See 1 James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses 158 (J.B. Gent ed., 1774), https://hdl.handle.net/2027/pst.000055464277?urlapp­end=%3Bseq=198. ↑
  56. See James Drake, The History of the Last Parliament: Began at Westminster, the Tenth Day of February, in the Twelfth Year of the Reign of King William, An. Dom.
    1700

    , at 209 (2d ed. 1702), https://hdl.handle.net/2027/mdp.39015062365013?urlappend=%3Bseq=247; see also Letter from Governor Winthrop to Governor Bradford, Nat’l Archives (Feb. 16, 1767), https://founders.archives.gov/documents/Adams/06-01-02-0067-0012 [https://perma.­cc/2SJE-D5PA] (“Suppose . . . members . . . purchased the votes of the electors by bribery.”). ↑

  57. See Drake, supra note 55, at 209. ↑
  58. See 1 Charles Johnstone, The Reverie: Or, a Flight to the Paradise of Fools 9 (1763), https://hdl.handle.net/2027/uc1.31175035193765?urlappend=%3Bseq=33. ↑
  59. Letter from Ulster Volunteer Corps Comm. of Correspondence to Benjamin Franklin, Nat’l Archives (July 19, 1783), https://founders.archives.gov/documents/Franklin/01-40-02-0203 [https://perma.cc/93M9-7Y48]. ↑
  60. John Cartwright, The People’s Barrier Against Undue Influence and Corruption: Or the Commons’ House of Parliament According to the Constitution 120 (2d ed. 1780). ↑
  61. Letter from John Rutledge, Jr., to Thomas Jefferson, Nat’l Archives (Apr. 3, 1789), https://founders.archives.gov/documents/Jefferson/01-15-02-0019 [https://perma.cc/DSY6-ZZVU]. ↑
  62. See Magdalen College and King James II
    , 1686–1688,

    at 36 (Rev. J.R. Bloxam ed., 1886), https://hdl.handle.net/2027/uiug.30112085280698?urlappend=%3Bseq=92 (voted in accordance with his judgment of who was better qualified, “according to the oath I had then newly taken, as a Senior Fellow, and a new Elector”). ↑

  63. See Abel Boyer, The History of King William the Third 107–08 (1702), https://hdl.handle.net/2027/mdp.39015021305126?urlappend=%3Bseq=269. ↑
  64. 12 T.B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 7 (1816). ↑
  65. Id. at 3. ↑
  66. Cf. Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 Ga. L. Rev. 1, 9 (2017) (considering five top-tier constitutional values to determine the constitutional meaning of “emoluments”). ↑
  67. Proceedings of the Legislature, supra note 33, at 170. ↑
  68. See, e.g., Reynolds v. Sims, 377 U.S. 533, 574–75 (1964). ↑
  69. See, e.g., Baca v. Colo. Dep’t of State, 935 F.3d 887, 945–46 (10th Cir. 2019) (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). ↑
  70. See, e.g., Philadelphia, Jan. 8, supra note 45 (asserting that the system of choosing Electors statewide rather than from local districts “subjected many citizens either to the necessity of voting for men wholly unknown to them, of giving an unavailing vote, or waving their right of suffrage”); see also Legislative Acts, Country J., July 11, 1787, at 1 (allowing each elector to vote for all of the county’s allocated seats in the state Assembly or “so many of them as such elector shall think proper to vote for”). ↑
  71. See, e.g., Int’l Inst. for Democracy & Electoral Assistance, Compulsory Voting [hereinafter “IDEA”], https://www.idea.int/data-tools/data/voter-turnout/compulsory-voting [https://perma.cc/S6NG-7L8V] (“Most democratic governments consider participating in national elections a right of citizenship.”). ↑
  72. See U.S. Const. amend. XII. ↑
  73. See infra note 116. ↑
  74. See, e.g., IDEA, supra note 70 (“In some countries, where voting is considered a duty, voting at elections has been made compulsory and has been regulated in the national constitutions and electoral laws. Some countries go as far as to impose sanctions on non-voters.”). ↑
  75. U.S. Const. art. II, § 1, cl. 2. ↑
  76. Id. amend. XII. ↑
  77. See, e.g., McKnight, supra note 13, at 44 (permissive for states); infra note 116 (imperative for Electors). ↑
  78. Federal Meeting, Pa. Gazette, Nov. 12, 1800, https://www.accessible-archives.com/­collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue) (statement of a meeting of Federal Republicans). ↑
  79. Lancaster, November 14, Pa. Gazette, Nov. 19, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue). ↑
  80. U.S. Const. amend. XIV. ↑
  81. See McPherson v. Blacker, 146 U.S. 1, 39 (1892). One could argue that the Twenty-Sixth Amendment created a popular right to vote for Electors. The Court’s reasoning in McPherson militates against that argument. ↑
  82. See, e.g., McKnight, supra note 13, at 39–44 (discussing the meaning of the term “State”); see also infra notes 95–98 and accompanying text (discussing the meaning of the term “Legislature”). ↑
  83. See, e.g., Boston, June 7, Pa. Gazette, June 18, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue); see also Texas v. White, 74 U.S. 700, 720 (1869) (discussing various possible definitions of “State”). ↑
  84. See, e.g., Important Debate, supra note 35, at 1; see also Boston, June 7, supra note 82 (describing the argument that the word “State” for purposes of appointing Electors is best understood to refer to the body politic). ↑
  85. See Important Debate, supra note 35, at 1. ↑
  86. See, e.g., Important Debate, supra note 35, at 1; see also Albany, November 19, N.Y. J. & Patriotic Reg., Nov. 30, 1799, at 4 (pointing to the problems with defining “State” as the legislature); Boston, June 7, supra note 82 (arguing “State” means body politic in the context of appointing Electors). ↑
  87. See Boston, June 7, supra note 82. ↑
  88. See Albany, November 19, supra note 85, at 4. ↑
  89. See New York, Friday November 28, 1800, Republican Watch-Tower, Nov. 29, 1800, at 2. ↑
  90. 146 U.S. 1 (1892). ↑
  91. Id. at 10–11. ↑
  92. U.S. Const. art. II, § 1, cl. 2. ↑
  93. McPherson, 146 U.S. at 11. ↑
  94. Id. at 25. ↑
  95. See id. at 35–36. ↑
  96. See Kirby, supra note 36, at 502. ↑
  97. See Michael McLaughlin, Note, Direct Democracy and the Electoral College: Can a Popular Initiative Change How a State Appoints Its Electors?, 76 Fordham L. Rev. 2943, 2966 (2008). ↑
  98. See Kirby, supra note 36, at 502. ↑
  99. See id. at 502–03. ↑
  100. See New York, Saturday November 8, 1806, Spectator, Nov. 12, 1800, at 3; see also Proceedings of the Legislature, supra note 33, at 170 (statement of Harison). ↑
  101. See, e.g., Important Debate, supra note 35, at 1. ↑
  102. Pennsylvania Legislature, in Senate, Friday, November 14, Pa. Gazette, Nov. 26, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue). ↑
  103. See Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 733–36 (2001) (discussing the Supreme Court’s rulings on the disputed Florida vote count in the 2000 presidential election). Smith details the history of lower court decisions on legislative independence in a variety of constitutional contexts. ↑
  104. See U.S. Const. art. II, § 2, cl. 2. ↑
  105. See United States v. Allred, 155 U.S. 591, 594 (1895) (court commissioner); see also In re Hennen, 38 U.S. 230, 258–59 (1839) (judicial clerk). Both cases are cited in Petition for Writ of Certiorari at 21, Colo. Dep’t of State v. Baca, No. 19-518 (Oct. 16, 2019). ↑
  106. See, e.g., John Joseph Powell
    ,

    An Essay on the Learning Respecting the Creation and Execution of Powers 287–88 (2d ed. 1791), https://hdl.handle.net/2027/nyp.334330084­79796?urlappend=%3Bseq=317 (summarizing property case law: “A power of appointment includes in itself a right to appoint either absolutely, or with a power of revocation, although no express power of revocation be reserved in the deed creating the power of appointment.”). ↑

  107. See, e.g., An Act for the Appointment of Electors to Choose a President Pursuant to the Constitution of Government for the United States, Virginia, Acts of 1788, ch. 1, pa. 1, § 2 (1788) [hereinafter “Virginia Act”], https://hdl.handle.net/2027/hvd.hxh5uh?urlappend=%3­Bseq=279 (limitation to “some discreet and proper person, being a freeholder, and bona fide resident in such district for twelve months”); see also An Act Relative to the Appointment of Electors to Vote for a President and Vice-President of the United States, The Acts of the General Assembly of the State of North-Carolina, ch. 16, § 1 (1792) [hereinafter “North Carolina Act”], https://hdl.handle.net/2027/mdp.35112203943248?urlappend=%3Bseq=58 (limitation to “discreet and sober person, being a freeholder and actually resident within the district for which he shall be elected”). ↑
  108. See, e.g., supra note 106; see also Frank Fletcher Stephens, The Transitional Period, 1788–1789, in the Government of the United States 71 (1909), https://hdl.handle.net/­2027/uc1.c2774348?urlappend=%3Bseq=83 (New Hampshire limitation to state inhabitants); id. at 72 (Massachusetts limitation to inhabitants of districts from which elected). ↑
  109. See An Act to Appoint Electors to Elect a Pr[e]sident and Vice-President of the United States, Tennessee, ch. 46, §§ 3–4 (1799) [hereinafter “Tennessee Act of 1799”]; see also An Act Providing for the Election of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 4, §§ 4–5 (1796) [hereinafter “Tennessee Act of 1796”] (including an alternative residency qualification for anyone “who was a resident of the district at the time of making the constitution”). ↑
  110. See Albany, November 26, Albany Reg., Nov. 26, 1792, at 2 (in an election for which the legislature appointed the state’s Electors). ↑
  111. In 1800, a member of the New York Assembly opposed allowing voters to choose Electors from outside the state merely because they “think that men of more wisdom might be got there than here.” Important Debate, supra note 35, at 1 (statement of Jedediah Peck). ↑
  112. See U.S. Const. amend. XII (“Electors . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves . . . .”); cf. U.S. Const. art. II, § 1, cl. 3 (repealed 1804) (“Electors . . . vote . . . for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.”). ↑
  113. See U.S. Const. art. II, § 1. ↑
  114. The Baca court acknowledged but did not reach the argument that a statute binding Electors “unconstitutionally adds new requirements for . . . holding the office of elector” under the reasoning in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995) (finding that the Constitution forbids states to add congressional qualifications beyond explicitly enumerated ones). Baca v. Colo. Dep’t of State, 935 F.3d 887, 938–39 n.20 (10th Cir. 2019). ↑
  115. Cf. Important Debate, supra note 35, at 1 (New York Assembly member Jedediah Peck asserting that the doctrine of popular sovereignty that justifies giving voters the right to choose Electors from outside of their local districts would allow them “the privilege of choosing Billy Pitt, or any other European,” referring to then-Prime Minister William Pitt, the Younger). Only Maine and Nebraska choose Electors by local districts today. See Nat’l Archives, Distribution of Electoral Votes (Dec. 23, 2019), https://www.archives.gov/electoral-college/allocation [https://perma.cc/VF8G-8LS5]. ↑
  116. U.S. Const. amend. XII. ↑
  117. See Amicus Curiae Brief of Derek T. Muller in Support of Neither Party at 14–15, Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019) (No. 18-1173) [hereinafter “Muller”] (citing statutes from Virginia in 1788 and Kentucky in 1799); see also North Carolina Act, supra note 106, at § 4 (two hundred pound fine for “failing to attend and vote” absent sickness or unavoidable accident). ↑
  118. See, e.g., North Carolina Act, supra note 106, at § 5 (granting Electors the same privileges as members of the General Assembly and paying for their time and expenses); Tennessee Act of 1796, supra note 108, at § 8 (paying for time and expenses); Virginia Act, supra note 106, at § 9 (granting the same privilege from arrest as members of the general assembly and paying for time and expenses). ↑
  119. See Tennessee Act of 1796, supra note 108, at § 9; see also Tennessee Act of 1799, supra note 108, at § 8 (“[E]lectors . . . shall take an oath to support the constitution of the United States, and also the constitution of this state . . . .”). ↑
  120. See, e.g., Muller, supra note 116, at 13. ↑
  121. See An Act Providing for the Appointment of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 11, § 2 (1796). ↑
  122. See McPherson v. Blacker, 146 U.S. 1, 21–22 (1892). ↑
  123. See id. at 23–24. ↑
  124. See U.S. Const. art. II, § 1, cl. 4 (“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”); id. amend. XII (counting votes of Electors). ↑
  125. See, e.g., C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 516–25 (1925). ↑
  126. See 3 U.S.C. § 15 (2012). ↑
  127. See, e.g., Tansill, supra note 124, at 517–18 (statements of Charles Cotesworth Pinckney); see also McKnight, supra note 13, at 30–32 (statements by Pinckney and others who attended the Convention); cf. Lemuel Sawyer, A Biography of John Randolph, of Roanoke 78 (1844), https://hdl.handle.net/2027/loc.ark:/13960/t0ft90p2f?urlappend=%3B­seq=82 (Rep. John Randolph in a later debate insisting that he “could not recognize in this House, or the other, singly or conjointly, the power to decide on the votes of any State” because the “electoral college was as independent of Congress as Congress was of them; and we have no right to judge of their proceedings”). ↑
  128. See Tansill, supra note 124, at 517–19. ↑
  129. In re Green, 134 U.S. 377, 379 (1890). ↑
  130. See Tansill, supra note 124, at 518. ↑
  131. See 52 U.S.C. § 20303(a)(1) (2012) (generally); id. § 20303(c)(2) (absentee write-in ballots for President and Vice President count whether they include the name of the candidate or the name of a party). ↑
  132. See 18 U.S.C. § 611(a) (2012) (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President . . . .”). ↑
  133. See id. (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a . . . Presidential elector . . . .”). ↑
  134. See, e.g., Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding the prohibition), summarily aff’d, 565 U.S. 1104 (2012). ↑
  135. See, e.g., Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391, 1420 (1993); see also 71 Cong. Rec. 2270 (1929), https://hdl.handle.net/2027/uc1.l0073613093?urlappend=­%3Bseq=1114 (Rep. Lea describing the historical practice and noting that in 1918, seven states still allowed non-citizens to vote for President) ; cf. Cong. Globe, 30th Cong., 1st Sess. 167 (1848), https://hdl.handle.net/2027/mdp.39015020131085?urlappend=%3Bseq=167 (Rep. Levin criticizing the practice as a threat to republican government). ↑
  136. See Important Debate, supra note 35, at 1 (statement of Jedediah Peck). Peck recognized that a principle that allowed voters to choose Electors from outside of their local districts would also allow them to choose non-citizens. He opposed both applications of the principle. See id. Nonetheless, states today routinely allow voters to choose Electors from outside of their local districts. See supra note 114. ↑
  137. See U.S. Const. art. II, § 1. ↑
  138. 800 F. Supp. 2d at 288. ↑
  139. Lawrence M. Solan, Can Corpus Linguistics Help Make Originalism Scientific?, 126 Yale L.J.F. 57, 57 (2016). ↑
  140. Cf. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1270 (2019) (denying “that originalism is a thick ideological concept” but acknowledging that many conservatives might sell “‘originalism’ to their base on the basis that it leads to conservative results”). ↑
  141. U.S. Const. art. II, § 1, cl. 5. ↑
  142. These typically included limitations on non-citizens holding real property and preconditions to naturalized persons exercising electoral rights under state law. See, e.g., 12 Debates in the House of Representatives, Second Session: January–March 1790, in Documentary History of the First Federal Congress of the United States of America, 4 March 1789–3 March 1791, at 162–63, 167, 497 (Helen E. Veit et al. eds., 1994). ↑
  143. See, e.g., Calvin v. Smith (1608) 77 Eng. Rep. 377, 399. ↑
  144. See, e.g., Fred L. Morrison, Limitations on Alien Investment in American Real Estate, 60 Minn. L. Rev. 621, 624 (1976) (historical relaxation of restrictions on non-citizen ownership of real property in the United States). ↑
  145. U.S. Const. art. I, § 2, cl. 1. ↑
  146. See, e.g., supra note 55; see also Letter from Benjamin Franklin to William Franklin: Journal of Negotiations in London, Nat’l Archives (Mar. 22, 1775), https://founders.­archives.gov/documents/Franklin/01-21-02-0306 [https://perma.cc/EW3Q-YWU4] (“For the elected House of Commons is no better, nor ever will be while the Electors receive Money for their Votes, and pay Money where with Ministers may bribe their Representatives when chosen.”). ↑
  147. See McKnight, supra note 13, at 119. ↑
  148. See id. at 120. ↑
  149. Id. ↑
  150.  See Rob Natelson, Presidential Elector Discretion: The Originalist Evidence, Independence Inst. (Jan. 4, 2018), https://i2i.org/presidential-elector-discretion-originalist-evidence/ [https://perma.cc/V472-LNPJ]. ↑
  151. Md. Const. of 1776, art. XV. ↑
  152. McKnight, supra note 13, at 112. McKnight also notes that the Maryland Constitution separately required voters to choose electors from among only “the most wise, sensible, and discreet of the people.” Id. at 111–12. If a prescriptively thick meaning of “Elector” incorporates this rule, it would likely have invalidated the appointment and votes of many historical Electors. McKnight also lamented that the Founders were “a shade too lax in omitting” this separate requirement from the Federal Constitution as well. Id. at 112; cf. Md. Const. of 1776, art. XIV (prerequisites for electors by cross reference to article II of the Maryland Constitution). Does the failure to include this requirement in the Electoral Clauses negate the Hamiltonian theory of wise Electors voting independently? ↑
  153. See U.S. Const. art. I, § 3, cl. 6; see also id. art. II, § 1, cl. 8 (oath of President); id. art. VI, cl. 3 (oath of Senators, Representatives, members of state legislatures, and all federal and state executive and judicial officers). ↑
  154. Articles of Confederation of 1781, art. V, para. 1. ↑
  155. U.S. Const. art. II, § 1, cl. 2. ↑
  156. See supra note 48 and accompanying text. ↑
  157. McPherson v. Blacker, 146 U.S. 1, 17 (1892). ↑
  158. See id. at 38–39. ↑
  159. Cf. Christopher R. Green, “This Constitution”: Constitutional Indexicals as a Basis for Textualist Semi-Originalism, 84 Notre Dame L. Rev. 1607, 1617 n.21 (2009) (evaluating theories that utilize non-originalist modes of constitutional discourse such as prudence and ethics). ↑
  160. Cf. McKnight, supra note 13, at 120–21 (asserting an Elector’s right not to vote). ↑
  161. Cf. id. at 73–83 (discussing obviously invalid electoral votes); id. at 311 (whether to count electoral votes cast for Horace Greeley despite his death between the 1872 general election and the meeting of the Electors). ↑
  162. See U.S. Const. amend. XII. ↑
  163. Cf. supra note 78 and accompanying text (Gov. McKean asserting a constitutional obligation to sister states to appoint Electors). ↑
  164. See supra notes 20 and 137 and accompanying text. ↑

Agency Design and the Zero-Sum Argument

Zero-sum arguments are common in discussions of the administrative state. Such an argument was forcefully presented in Free Enterprise Fund, where the Court wrote, “In a system of checks and balances, ‘[p]ower abhors a vacuum,’ and one branch’s handicap is another’s strength.”[1] This zero-sum argument has gained considerable force in recent challenges to agency design. Under the zero-sum framework, one branch’s diminished control over the administrative state necessitates a gain to the other branches. Typically, the President’s loss is Congress’s gain, although this is not always the case.[2] Empowered by this baseline understanding, opponents of a particular structure argue that limitations on presidential control disrupt the separation of powers, impermissibly altering the balance required by the Constitution.

 

But the zero-sum argument is not the only one to appear in agency-design case law. In Free Enterprise Fund, for instance, the Supreme Court considered whether two layers of for-cause removal protection violated Article II’s Vesting Clause.[3] In finding the protection unconstitutional, the Court expressed concern that “the diffusion of power carries with it a diffusion of accountability.”[4] Insulating officers through two layers of removal protection “subverts . . . the public’s ability to pass judgment” on the President.[5] In other words, the agency’s design was impermissible because it limited political accountability. This concern exists without regard to a corresponding gain by Congress.

It is worth noting that these two concerns are not identical. In the first situation—commonly known as “aggrandizement”—power had passed from the President to Congress, compromising the balance between politically accountable actors. In the second situation—the context of “diffusion”—power had passed from the President to unaccountable hands, beyond the reach of the electorate altogether.[6] These two arguments are frequently conflated under the broad rubric of separation of powers,[7] and the zero-sum argument is the mechanism through which this happens. For example, the Fifth Circuit recently ignored diffusion while holding that the Federal Housing Finance Agency is unconstitutionally structured because “when one branch tries to impair the power of another, this upsets the co-equality of the branches and degrades the Constitution’s deliberate separation of powers.”[8]

This Essay contends that the zero-sum argument is misplaced and not required by existing law. A decrease in the executive’s control over the administrative state does not always correspond with a gain to Congress or the judiciary. Zero-sum rhetoric groups ideas that are best left distinct, and this rhetoric comes with a cost. First, it masks the new and powerful role that diffusion arguments are playing in agency design cases. Second, it leads to confusion about the issues at stake in assessing agency structure. Third, it prevents the courts from looking to more useful facts in understanding diffusion as an independent constitutional harm.

Stripping away zero-sum language reveals that many cases that purport to be about the separation of powers, in fact, are not—at least not in the way the label is frequently employed. The challenge for a modern court is assessing not the balance between constitutional actors, but the point at which federal power is exercised beyond the reach of any accountable actor at all.[9] The harm that comes from the former defect—aggrandizement—is distinct from the harm that comes from the latter—diffusion.

Since Free Enterprise Fund, lower courts have grappled with how to identify when diffusion rises to an unconstitutional level. This essay does not speak for or against this project. The specific question in Free Enterprise Fund, the removal power, has long been a topic of academic attention.[10] Likewise, the broader question of how best to understand the constitutional allocations of powers between branches of government has been well developed by many able scholars.[11] Instead, this Essay takes the law as it exists now and critically examines what it requires from lower courts tasked with applying it. This examination leads to two conclusions. First, the courts should look beyond the Supreme Court’s precedents involving aggrandizement to identify when diffusion becomes unconstitutional. Free Enterprise Fund requires the courts to draw a new constitutional line, and these precedents do not offer any guidance on where it is. Second, any attempt to draw this line will require a careful examination of how the precise statute in question affects political accountability as a factual matter. Judge Griffith’s recent opinion in the CFPB litigation, discussed below, demonstrates this analytical approach. In brief, moving beyond zero-sum arguments helps us find the right answers by identifying the right questions.

I. The Government is not Zero-Sum

Lawyers, scholars, and judges often employ zero-sum language to undergird larger arguments about the proper “balance of power” in the constitutional system.[12] While disagreeing about the proper balance, they all seem to share a premise that what one branch gains, another must lose. As this Part argues, “balance” is not a unitary concept. Since power is not zero-sum, balance can be upset by a limit on one constitutional actor (diffusion), even without a corresponding expansion in another (aggrandizement). These are discrete, and at times contradictory, harms.

This Part begins by briefly summarizing the Supreme Court’s case law on agency design, arguing that prior to Free Enterprise, diffusion did not play an outcome-determinative role.  In fact, cases from before 2011 fit neatly into three groups: (1) cases interpreting a specific structural provision of the Constitution, like the Appointments Clause, (2) cases that upheld the statute in question against a broader separation of powers challenge,[13] and (3) cases that invalidated a statute because the Court found that one branch aggrandized itself with the power of another.[14] To be sure, the court often suggested broader principles were at work, but these theories were not essential to resolving the cases.  This Part then explores how Free Enterprise Fund changed the Court’s agency design doctrine,[15] before turning to recent attempts to apply Free Enterprise Fund to financial regulatory institutions.

A. The Law Before Free Enterprise

For many years after the New Deal, the Court’s jurisprudence regarding legislative incursions on the executive’s control of government proceeded on two tracks, which the Supreme Court recognized.[16] On the first track, the Court interpreted the specific constitutional provisions that assign responsibility among branches of government. For instance, the Court invalidated attempts to place government officers in a manner not consistent with the Appointments Clause,[17] appoint officers in violation of the Recess Clause,[18] or pass laws in a manner that did not conform to the Presentment Clause.[19] In these cases, the Court simply discerned the meaning of the constitutional provision at issue.[20] When a specific structural provision was not implicated,[21] the court adopted a balancing approach,[22] asking if a law “prevents the Executive Branch from accomplishing its constitutionally assigned functions.”[23] The decisions along this second track fell into a predictable pattern. While some of the opinions employed zero-sum rhetoric,[24] the Court struck down only statutes that involved aggrandizement. In other words, agency design was unconstitutional if it put members of Congress (or their agents) in control of the administrative state or put executive function inside the legislative branch.

The line between the two tracks was not always clear—some opinions, for example, reach the same conclusion along both routes[25]—but the outcome was. Statutes could limit the President’s ability to control personnel or agency action, as long as another constitutional actor was not stepping in to fill the void. Currently, the statutes at large are full of organic statutes and general management laws that structure the President’s ability to manage the federal government.[26] These laws fit neatly into the Supreme Court’s then-existing doctrine, which permitted the administrative state to serve as the repository of managerial functions and to disperse power among different executive branch actors, but prevented inter-branch encroachment. Past Court holdings treated aggrandizement as more problematic than diffusion; it did not conflate them into a single zero-sum harm.

In this respect, the Court’s doctrine around agency independence was not unique. Other areas of administrative law support the premise that although agencies are within the executive branch, they are analytically separate from the President and the Congress. The analysis in Nixon v. General Services Administration is instructive. Under the Presidential Recording and Material Preservation Act, an executive agency (GSA) is required to take possession of presidential records and screen them for preservation. The case gave rise to a separation of powers challenge on the grounds that “the Act encroaches upon the Presidential prerogative to control internal operations of the Presidential office and therefore offends the autonomy of the Executive Branch.”[27] On the challenger’s view, this reflects “an impermissible interference by the Legislative Branch into matters inherently the business solely of the Executive Branch.”[28] After stating the applicable test, based on the ability to carry out “constitutionally assigned functions,” the Court rejected the claim, noting that

[i]t is therefore highly relevant that the Act provides for custody of materials in officials of the Executive Branch and that employees of that branch have access to the materials only for ‘lawful government use, subject to the Administrators regulations. For it is clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function.[29] 

This analysis requires a few assumptions. First, authority in the GSA is not the same as authority in the President. Second, authority in the GSA is not the same as authority in Congress. Finally, the proper way to frame the question is to look at how much the President is impaired by the agency’s authority, irrespective of Congress. In other words, assess diffusion as distinct from aggrandizement.

Stepping back, the law before Free Enterprise Fund is easily summarized. As a matter of agency design, one branch of government could not encroach on another. The Court acknowledged that some limitations on the President would be problematic in and of themselves,[30] but the Court did not draw a constitutional line.

B. The Law After Free Enterprise Fund

The legal landscape changed with Free Enterprise Fund v. PCAOB, where the Court found that two levels of for-cause removal protection from the President amounted to an unconstitutional insulation from executive authority.[31] This case was the first to invalidate a personnel restriction that did not infringe on a specific textual provision or directly increase congressional control.[32] Even Myers v. United States,[33] commonly understood to represent a robust view of presidential authority, involved a statute that gave Congress itself the authority to remove officers.[34]  Rather than proceeding along the two-track tradition, the Court instead found the scheme invalid under the Article II Vesting Clause.[35]

It is difficult to see the structure at issue as an aggrandizement of Congress. The case involved the provision of the Sarbanes–Oxley Act that sets up the Public Company Accounting Oversight Board (“PCAOB”), a body to oversee accounting firms that audit public companies. The Board was created to supervise, investigate, and sanction firms in this industry, under the oversight of the SEC. The members of the PCAOB are selected by the SEC, not Congress, to five-year terms and are protected from at-will removal by the SEC. This structure represents a fair amount of insulation from the President, but it puts the members no closer to Congress, which has no role in their selection, supervision, or removal.[36] The relevant harm is thus a far cry from the prior cases that either placed the legislative branch directly in charge of executive functions or made officers removable only with the consent of the Congress.

Instead of looking to Congress’s gain, then, the opinion rightly focused on the President’s loss of control. After reviewing the prior cases involving personnel independence,[37] all of which could be made to fit the two-track approach, the Court articulated a new boundary. As the majority understood the issue, two-layers of for-cause removal protection meant the President lacked the authority to “oversee the Board” or check the “dispersion of responsibility.”[38] While the Court concluded that the “Act’s restrictions are incompatible with the . . . separation of powers,”[39] the opinion does not speak to other branches. Instead, the real fear is that the legislation “reduce[d] the Chief Magistrate to a cajoler-in-chief.”[40] The opinion focused on the balance between the agency and the President, not the President and the other branches. Zero-sum rhetoric makes an appearance,[41] but there is no real suggestion that Congress was grabbing control of the accounting industry through the PCAOB.

While the Court referenced its aggrandizement decisions, its analysis was motivated by diffusion. As such, the case started the law down a new path. This is not to say that the Court ignored its precedents or fundamentally undermined the existing course of the law. To the contrary, many prior cases suggested that such a limit might exist,[42] and in Free Enterprise, the government itself admitted that constraints on the President’s removal authority could present constitutional defects.[43] On its own terms, the opinion suggests that it was the novelty of the agency design, not a change in the law, that drove the change in outcome.[44]

The opinion is not remarkable for its introduction of the diffusion argument. It is notable because the argument finally carried the day. Since then, the challenge has become drawing the new line that the diffusion rationale requires. With the removal power, where diffusion and the zero-sum argument point in the same direction, this challenge might not seem so difficult. In fact, that is likely the best way to understand the zero-sum argument in Free Enterprise Fund itself. The earlier decisions involving aggrandizement all limited the president without a corresponding reduction in congressional control, so it was appropriate to conclude that “Congress’ political power . . . necessarily increase[d] vis-à-vis the President.”[45] When litigants challenge an agency for its independence from both the President and Congress, however, diffusion and aggrandizement point in opposite directions. In these situations, the zero-sum argument loses its force and the Court’s task becomes more difficult.

C. The CFPB and FHFA Litigation

The financial industry would soon provide two prominent examples of agencies challenged because they are independent of both the White House and Congress. First, the Housing and Economic Recovery Act of 2008 created the Federal Housing Finance Agency to oversee Fannie Mae and Freddie Mac.[46] Several years later, the Dodd–Frank reform legislation created the Consumer Financial Protection Bureau (“CFPB”), consolidating formerly scattered authority in this area and providing new regulatory tools to the agency.[47] Given that Free Enterprise Fund suggested a willingness to accept longstanding regulators,[48] the novel structures of these two agencies were fertile ground to test the boundaries of permissible diffusion. These challenges have given rise to two major circuit court opinions, both of which demonstrate the trouble with zero-sum thinking. Specifically, litigants and judges have struggled with assessing features of agency design that limit both congressional and presidential control. Specifically, there is confusion over how to weigh the agencies’ independence from the budget process, which would otherwise afford Congress an opportunity each year to affect agency policy.

 In PHH Corp. v. CFPB, litigants brought a challenge to the CFPB’s design under the Vesting Clause of Article II.[49] As structured by Dodd–Frank, the agency enjoys significant independence from the President. The CFPB is headed by a single administrator, not a multi-member commission. This director is appointed to a five-year term, with for-cause removal protection during that tenure. The agency also enjoys other structural features that insulate it from political influence. For example, since it receives funding directly from the Federal Reserve, the CFPB does not depend on congressional largesse during the annual appropriations cycle.[50]

The litigation ultimately focuses on whether the removal provision, either standing alone or in combination with the budgetary process, is unconstitutional.[51] Advocates of the CFPB see the agency as nothing special, at least in a constitutional sense. Congress has long employed single administrators, for-cause removal protections, and funding outside the annual appropriations cycle. The combination, they claim, is no more problematic than any discrete part. To its detractors, however, the aggregation of these features in a single entity is both novel and threatening, pulling the agency well outside the normal push and pull of partisan politics. While the challengers prevailed in the initial hearing before the D.C. Circuit, the agency prevailed en banc.

If the Supreme Court is one day tasked with resolving the question, one thing should be clear: The zero-sum conception of constitutional power is wholly inapplicable to a structure like that of the CFPB. If all adjustments to the administrative state amount to different ways of distributing the pie among branches of government, as the zero-sum concept would require, then the features of the CFPB actually mitigate one another. If the government is zero-sum, the removal restrictions of the CFPB Administrator limit the President and aggrandize Congress. Likewise, the budget autonomy limits the Congress and necessarily aggrandizes the President. If the zero-sum logic is followed to its conclusion, an agency can avoid constitutional defect by simply applying additional limits to each branch in equal measure, a result that is clearly contradictory to the accountability rationale of Free Enterprise Fund. 

Given this implication, it is unsurprising that zero-sum language did not make a prominent appearance in the briefing. The suggestion that “power abhors a vacuum” is nowhere to be found. And the challengers even argue that Congress abdicated its own authority in the creation of the agency, a sort of anti-aggrandizement. As they saw it, the decision to place the operating budget outside the annual appropriations process deprives Congress of an “important check . . . over the CFPB,” while “limit[ing] [the] accountability to the President too.”[52] By arguing that this independence limited the authority of both branches, the petitioners tacitly accepted that a zero-sum argument did not help their case.

Nonetheless, the briefs filed in advance of the en banc rehearing suggest the parties did not distinguish between the types of harms reflected in the case law. Their citations demonstrate that the litigants are fighting over diffusion while talking about aggrandizement. The petitioner’s argument on the constitutional merits cites Chadha, Myers, Free Enterprise, Bowsher, Morrison, Humphrey’s Executor, Noel Canning, and Freytag. The only case involving a diffusion concern, Association of American Railroads, was cited for a different proposition.[53] In defending the statute, the CFPB followed a similar course, citing to Nixon, Humphrey’s Executor, Morrison, Noel Canning, Bowsher, Mistretta, and Free Enterprise.[54] As discussed in Part I, these cases (with the exception of Free Enterprise) have little to say about the line between appropriate independence and unconstitutional diffusion.

The FHFA litigation has similarly highlighted the difficulty of fitting budget independence into the zero-sum framework. Unlike the D.C. Circuit in PHH Corp., which ultimately upheld the CFPB, a Fifth Circuit panel applied Free Enterprise Fund to find that the FHFA was unconstitutionally structured.[55] In doing so, the Court engaged in a thorough analysis of both the case law on removal and the literature suggesting that removal is not the only source of agency independence.[56] Much of the opinion focuses on diffusion, noting the harm that emerges from having government actors too isolated from political accountability. Focusing on this harm leads the Court to correctly conclude that the question before them is one of degree: “Ultimately, ‘an agency’s practical degree of independence from presidential influence depends’ on the combined effect of these (sometimes mutually reinforcing) structural features.”[57] This is exactly the sort of analysis that diffusion as a separate harm requires.

The Court’s reasoning is weakened, however, by its need to square this fact-intensive and practical analysis with zero-sum rhetoric around agency design. For instance, the opinion quotes Free Enterprise Fund for the proposition that “excessive insulation allows Congress to accumulate power for itself.”[58] On this view, Congress’s “control over the salary, duties, and even existence of executive offices” goes unchecked when an agency is isolated from the President.[59] The problem with this type of argument becomes plain when the court later discusses the FHFA’s funding source. Much like the CFPB, the FHFA receives funding outside the annual appropriations cycle.[60] As previously mentioned, the CFPB litigants saw this feature as weakening Congress’s control. In forcing its analysis into the zero-sum box, the Fifth Circuit argues that the FHFA’s funding source weakens the President: “By placing an agency outside the normal appropriations process, the President loses ‘leverage’ over the agency’s activities. . . . The FHFA stands outside the budget . . . and is therefore immune from presidential control.”[61]

Compare this argument to the earlier assertion that agency independence empowers Congress through its power to control salaries, duties, and offices. These levers are the product of Congress’s power to enact statutes. So is the annual appropriations process. Both require bicameralism and presentment. Both can be vetoed, and both could see a veto overridden. Yet the Fifth Circuit frames the legislative power to set duties, salaries, and offices (by statute) as a reason for congressional dominance, while framing the absence of the power to set funding levels (by statute) as an inhibition on the President. The attempt to put the budget provision into the zero-sum framework of earlier cases is understandable. Once the unique contribution of Free Enterprise Fund is recognized, however, it is unnecessary and detracts from the core accountability concern that is well developed in other parts of the opinion. 

The CFPB and FHFA cases both confronted agencies free from the annual appropriations cycle. As a practical matter, removing an agency from the pressures of annual appropriations inhibits both branches. The power of the purse is one of Congress’s primary checks on the actions of the executive branch.[62] Similarly, the President, acting through the Office of Management and Budget, exerts tremendous pressure on agencies through the budget request process.[63] Although this form of independence could be relevant to the diffusion of power, it does not tell us much about the balance of power between the branches. But this reality is difficult to square with the reliance on the zero-sum argument in earlier cases, which sees the two as one in the same. In the CFPB case, the litigants accepted as much and focused solely on diffusion. In the FHFA litigation, however, the court examined the feature in a way that fit the zero-sum framework, grouping its analysis under a single “separation of powers” idea.

II. Understanding Diffusion as a Separate Harm

The theory of the Vesting Clause found in Free Enterprise Fund is applicable to any feature of agency design that could plausibly limit political accountability. It can therefore be deployed to a range of statutes affecting financing, litigating authority, officer qualifications, and direct reporting, among others.[64] While some methodological approaches might lead to these statutes being invalidated wholesale, the Court’s approach in Free Enterprise Fund was more fact intensive and functional, as the lower courts have recognized.[65] Moreover, while interpretive techniques like a “presumption against novelty” in agency design may help the Court reach decisions involving new structures, they tell us little about the ones we already have.[66]

This Part briefly notes two potential analytical approaches, both of which move beyond the zero-sum framework. The first is to consider other areas of the law that implicate a diffusion harm, such as privatization and federalism. While these areas may share certain qualities with agency design, they ultimately do not offer much guidance for lower courts. The second is to develop an agency-specific understanding of diffusion, focused on political accountability. This option requires the courts to think more about what accountability means and how it is measured; a project that may prove difficult to square with the current focus of the law on personnel alone. This approach requires that lower courts engage in a more fact-bound assessment of statutes that structure agencies until the Supreme Court provides more complete guidance, especially because other areas of law do not provide workable standards.

A. Analogies Outside the Separation of Powers

The diffusion harm in Free Enterprise is grounded in political accountability concerns. The Supreme Court has explored political accountability in both its federalism decisions and its cases involving the delegation of power to private actors, so these are natural starting points for trying to develop a workable constitutional limit on diffusion.

Modern American federalism is characterized by sovereigns acting in overlapping domains, which allow for cooperation and contestation.[67] The current doctrine does not attempt to carve out separate spheres of federal and state action. Instead, it ensures the federal government cannot avoid accountability for its actions by commandeering the states. Under New York[68] and Printz[69]—the two most significant cases in this area—the federal government cannot use the states to enforce its policies, at least not directly. The role of political accountability in these cases is therefore straightforward and defensible. Since the Constitution divides power between two elected sovereigns, one cannot conscript the other and thereby distort the public’s assessment of credit and blame.[70] The Court recently applied this logic to coercion, finding that indirect mandates in federal grants can have the same distorting effect in extreme cases.[71] In the context of federal–state relations, therefore, how a policy is implemented matters.[72] The federal government may have the power to impose its will on local subjects, but it must do so directly and on fair terms.

Political accountability is also central in a line of cases involving delegations of power to private actors.[73] When Congress delegates discretion to public actors within the executive branch, that practice aligns with the structure of the aggrandizement cases; one branch loses the ability to fill gaps in the law while the other branch gains that power. If there is a constitutional defect, it is the transfer of legislative power from Congress to the President.[74] The harm that stems from delegating power to private actors, however, is different and warrants greater scrutiny.[75] Notably, this scrutiny is framed in terms of accountability. As the D.C. Circuit recently stated, “delegating the government’s powers to private parties saps our political system of democratic accountability. This threat is particularly dangerous where both Congress and the Executive can deflect blame for unpopular policies by attributing them to the choices of a private entity.”[76] In other words, the harm is not the balance between political actors, but rather shifting the blame outside the government altogether. To support this conclusion, the opinion cited not only to prior cases involving delegations to private actors, such as the New Deal–era Carter Coal decision, but also to the federalism cases.[77] This makes sense to the extent that the cases share a common premise—that federal actors have empowered (or coerced) actors outside their control to implement national policy, thus compromising the public’s ability to hold the proper official accountable. This accountability concern is central to the limits on diffusion identified in both areas.

The value of these cases to questions of agency design is limited. While these areas are concerned with maintaining a distinction (federal/state, public/private), the Constitution does not reflect a similar concern for administration. To the contrary, political control over administration is explicitly designed to make many individuals accountable for any given action.[78] Branches share responsibility for appointing personnel, financing government operations, and constraining incursions by administrators on individual liberty. Under a structure where both political branches are supposed to share blame and credit for federal action, what work is political accountability doing? Moreover, the privatization cases suggest that diffusion concerns are heightened for private actors, even relative to independent agencies.[79] In brief, whereas the other two areas can look to political accountability as a way to draw a useful and enforceable distinction, it is not clear that idea can do the same work here. Instead, the courts will likely need to try something new; they will need to develop a framework for understanding the unique relationship between agency design and political accountability. 

B. Independent Harms in the Administrative State

An agency’s design clearly has some effect on its political responsiveness.[80] While Free Enterprise Fund identifies one point at which this effect is too limiting, it does little to provide a way forward.  To apply its holding, the Court must accept two premises. To note these premises is not to resolve them, but it is a necessary step in developing a workable doctrine of diffusion.

First, the extent to which a particular agency design diffuses power presents an empirical and measurable question: How much does the structure actually limit political accountability?[81] In measuring that harm, the zero-sum argument, which frames the question as one of the separation of powers, offers little guidance. As Adrian Vermuele has noted, the separation of powers is not an unassailable “idol”: “[I]t is not obvious that what are, after all, merely institutional arrangements could ever be the sort of things that could be ‘contaminated,’ even in principle. The language of the sacred is simply misplaced as to such highly contingent matters of institutional design.”[82]

Instead, the courts must examine a core principle—democratic accountability—as a factual matter. Ultimately, this question is not a “vague and slippery” search for balance between the branches.[83] It requires a factual assessment of what the terms of the restriction on presidential authority mean.[84] Labels like “for-cause removal” or “financial independence” are too broad, and courts must parse more critically the provisions before them. As the financial regulators demonstrate, not all features of agency design will necessarily empower one branch over the other. This time Congress chose to limit its control through annual appropriations. Next time it might involve an agency free of congressional subpoenas or oversight hearings. In either event, the courts will be asked to assess the effect of such a feature, even though there is no aggrandizement.

The D.C. Circuit’s recent assessment of the CFPB demonstrates how such an analysis might look. The majority[85] and dissents[86] offer thorough and persuasive accounts of how existing case law speaks to the permissibility of the CFPB’s design. While disagreeing on the outcome, the majority and dissent ask general questions about how the agency’s design fits into existing precedent. As discussed in Part I, however, this precedent does not tell us much about the dispositive question under Free Enterprise Fund: at what point does the diffusion of power to an agency, and the attendant loss of political accountability, become unconstitutional?

Answering requires knowing the actual limits placed on the President. And for that, Judge Griffith’s solo concurrence on the removal question makes an important contribution to the debate. He explains the reason for his separate opinion at the outset: “My colleagues debate whether the agency’s single-Director structure impermissibly interferes with the President’s ability to supervise the Executive Branch. But to make sense of that inquiry, we must first answer a more fundamental question: How difficult is it for the President to remove the Director?”[87] Judge Griffith goes on to describe the language of the removal provision—allowing for removal in cases of “inefficiency, neglect of duty, or malfeasance in office”—and finds that it allows for removal based on policy disagreement. Judge Wilkins’s concurring opinion employs a similar inquiry, ultimately finding Judge Griffith’s conclusion contestable.[88] But the result is not as important as the question, which rejects the idea that all removal restrictions should be treated equally or raise the same constitutional concerns. As Judge Griffith put it, “agency independence is not a binary but rather a matter of degree.”[89]

The new diffusion doctrine’s second necessary premise is that individual limits on presidential authority cannot be viewed in isolation. As the Fifth Circuit noted, the Supreme Court’s holding in Free Enterprise Fund requires the court to “look at the aggregate effect of the insulating mechanisms to determine whether an agency is excessively insulated.”[90] While the court then went on to consider a range of statutory provisions applicable to the FHFA, there is reason to think that the inquiry should have been even broader. The insulation of a given agency can turn on its relationship to other agencies, state governments, and political actors in Congress and in private life.[91] Even though these non-traditional features of independence are hard to measure and not readily susceptible to easy labels (like “for-cause removal”), they are powerful.

Analyzing diffusion requires a fact-intensive assessment of the limits on presidential control, considered in their full legal and political context. If this seems like a functional inquiry, it is because the law requires one. The court in Free Enterprise Fund drew a line in the sand at two layers of for-cause removal from the President. The defect in that statutory arrangement is clearly distinct from those in prior aggrandizement cases. This diffusion harm is rooted in a loss of political accountability, which only a careful factual examination can measure.

 

*    *    *

An agency’s design can implicate two discrete harms. The first—aggrandizement—involves one branch encroaching on the domain of another. This encroachment upsets the separation of powers by placing the responsibilities of one constitutional actor under the control of another. The second—diffusion—does not implicate the balance of power between the branches; it instead places the exercise of federal power beyond the reach of an accountable official. The reliance on zero-sum rhetoric masks this distinction. In doing so, courts attempt to fit facts into a theoretical framework ill-suited to answer the question required by current law. Instead of relying on the unitary concept of agency independence expressed in the zero-sum argument, courts should take on the difficult task of defining political accountability and setting the limit at which it has been impermissibly diffused. These tasks may be unfamiliar, but under current law they are unavoidable.

 

    [1] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 500 (2010) (citing Judge Kavanaugh’s opinion for the D.C. Circuit below); see also Mistretta v. United States, 488 U.S. 361, 382 (1989) (“We have not hesitated to strike down provisions of law that . . . undermine the authority and independence of one or another coordinate Branch.”); Nixon v. Gen. Servs. Admin., 433 U.S. 425, 443 (1977) (“Rather, in determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.”).

    [2] See, e.g., Stern v. Marshall, 564 U.S. 462 (2011) (finding that an adjudication by the bankruptcy courts violated Article III); Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685–88 (1980) (Rehnquist, J. concurring in the judgment) (arguing that the OSH Act of 1970 violated the non-delegation doctrine).

    [3] 561 U.S. 477.

    [4] Id. at 497.

    [5] Id. at 498.

    [6] The labels “aggrandizement” and “diffusion” for these two defects are not new. The first is commonly used in the court’s opinions, see, e.g., Buckley v. Valeo, 424 U.S. 1, 122 (1976), while the latter has been invoked both in Free Enterprise Fund itself and subsequent scholarship on the case. See Edward H. Stiglitz, Unitary Innovations and Political Accountability, 99 Cornell L. Rev. 1133, 1133 (2014).

    [7] See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1961–71 (2011) (describing the formalist concern with “encroachment,” whereby specific limits on presidential control are invalidated because of the general separation of powers principle).

    [8] Collins v. Mnuchin, 896 F.3d 640, 659 (5th Cir. 2018).

    [9] While the court in Free Enterprise used “diffusion” to signal a particular kind of constitutional defect, the diffusion of power in many executive branch actors can arguably mitigate, not create, constitutional defects. See M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 605–06 (2001); Manning supra note 7, at 1947 (“[R]ather than embracing an overarching separation of powers principle, the [Constitution] . . . reflects countless context-specific choices about how to assign, structure, divide, blend, and balance federal power.”).

    [10] Compare Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205 (2014) (arguing that presidential removal of officers is constitutionally required), with Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163 (2013) (arguing that removal restrictions, both in statute and prevailing convention, are not critical to determining constitutional questions of agency independence). See also Aziq Z. Huq, Removal as a Political Question, 65 Stan. L. Rev. 1 (2013) (arguing that courts should consider this entire area non-justiciable under the political question doctrine); Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779 (2006) (presenting a theory of the removal power distributed across all three branches of government).

    [11] An abbreviated survey includes Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson, 62 Vand. L. Rev. En Banc 103, 107-11 (2009) (providing a concise presentation of the Unitary Executive theory, which the authors presented more fully elsewhere); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 581 (1984) (arguing for a “framework for understanding the scope of Congress’s authority to structure American government that . . . require[s] that those who do the work of law-administration have significant relationships with [Congress and the President]”); Manning, supra note 7 (arguing for a less general approach to separation of powers questions that would allow for more flexibility in areas where the Constitution is less clear about institutional arrangements); Vermeule, supra note 10, at 1231 (arguing that separation of powers law should account for “unwritten rules of the game, or conventions,” which lie “[b]etween ‘politics’ on the one hand and formal written law on the other”).

    [12] Eric A. Posner, Balance-of-Power Arguments, the Structural Constitution, and the Problem of Executive “Underenforcement”, 164 U. Pa. L. Rev. 1677, 1678 (2016).

    [13] See, e.g., Loving v. United States, 517 U.S. 748 (1996) (finding that Congress can delegate authority to the President to define aggravating factors for military capital cases); Mistretta v. United States, 488 U.S. 361 (1989) (upholding a delegation to the judiciary to promulgate the Sentencing Guidelines); Nixon v. Gen. Servs. Admin, 433 U.S. 425 (1977) (upholding the Presidential Recordings and Materials Preservation Act).

    [14] See, e.g., MWAA v. Citizens For The Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991).

    [15] The notion that Free Enterprise Fund represents a fundamental break from past practice is found in other scholarship. See Huq, supra note 10, at 14.

    [16] See MWAA, 501 U.S. at 274 (“To forestall the danger of encroachment ‘beyond the legislative sphere,’ the Constitution imposes two basic and related constraints on the Congress. It may not ‘invest itself or its Members with either executive power or judicial power. And, when it exercises its legislative power, it must follow the ‘single, finely wrought and exhaustively considered, procedures’ specified in Article I.” (citations omitted)); see also Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 484–86 (1989) (Kennedy, J. concurring in the judgment) (“In some of our more recent cases involving the powers and prerogatives of the President, we have employed something of a balancing approach, asking whether the statute at issue prevents the President from accomplishing his constitutionally assigned functions. . . . In a line of cases of equal weight and authority, however, where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch. . . . The justification for our refusal to apply a balancing test in these cases, though not always made explicit, is clear enough. Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself.” (citations and emphasis omitted)).

    [17] Buckley v. Valeo, 424 U.S. 1 (1976).

    [18] Noel Canning v. NLRB, 134 S. Ct. 2550 (2014).

    [19] INS v. Chadha, 462 U.S. 919 (1983).

    [20] See, e.g., Freytag v. Comm’r of Internal Revenue, 501 U.S. 868 (1991) (defining “officers” for the purpose of applying the analysis of Buckley).

    [21] This Essay assumes that the Vesting Clauses themselves are not a specific structural provision, at least not one comparable to the Appointments Clause. This assumption is based on the Court’s reluctance to view the Vesting Clauses as a source of rigid structural rules. As discussed in Section I.B, even recent decisions based on the Vesting Clause, like Free Enterprise Fund, did not import specific rules through the Vesting Clause, instead using the provision as the launching point for a more balanced inquiry involving political accountability.

     [22] See, e.g., MWAA v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).

    [23] Nixon v. Gen. Servs. Admin., 433 U.S. 425, 443 (1977).

    [24] See, e.g., Bowsher v. Synar, 478 U.S. 714, 721–22 (1986) (explicitly mentioning the separation of powers and diffusion in a case involving aggrandizement); see also Loving v. United States, 517 U.S. 748, 757 (1996) (“Even when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.”).

    [25] See MWAA, 501 U.S. at 277, n. 23 (finding that because the scheme was invalid as aggrandizement, potential objections based on specific textual provisions were unresolved); see also Bowsher, 478 U.S. 714. While the majority in Bowsher invalidated the scheme on the grounds of congressional aggrandizement, Justice Stevens would have reached the same conclusion by finding the scheme a violation of Article I’s requirement of bicameralism and presentment. Id. at 737 (Stevens, J. concurring in the judgment).

    [26] See, e.g., Federal Advisory Committee Act, Pub. L. No. 92-463 (1972) (codified at 5 U.S.C. Appendix); 12 U.S.C. § 250 (2012); see also Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 784-812 (2013) (surveying statutory provisions).

    [27] Nixon, 433 U.S. at 439–40 (1977).

    [28] Id. at 440.

    [29] Id. at 443–44. Earlier in the opinion, the Court noted that the Administrator of GSA is appointed by the President and the staff who conduct the record review are executive employees, both of which the Court saw as relevant to the constitutional question. Id. at 441.

    [30] This lay of the land is summarized in Morrison v. Olson, 487 U.S. 654, 685–97 (1988). By framing the Court’s holding in Myers v. United States as involving an aggrandizement concern, the Court in Morrison fit the case into the existing framework, even though the language of the opinion extended well beyond that rationale. Id. at 686–87 (discussing Myers). Significant portions of Morrison have been challenged by later cases, but Free Enterprise Fund did not directly conflict with Morrison’s holding on the removal question and its vitality remains an open question.

    [31] Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010).

     [32] At the time of the opinion, there was uncertainty as to whether the holding would work a major change in separation of powers law, or was instead a more incremental or “boundary enforcing” decision. See, e.g., Richard H. Pildes, Free Enterprise Fund, Boundary-Enforcing Decisions, and the Unitary Executive Branch Theory of Government Administration, 6 Duke J. of Const. L. & Pub. Pol’y 1, 9 (2010).

    [33] 272 U.S. 52 (1926).

    [34] This had been the previous rationale for harmonizing the case with later, more permissive holdings. See Morrison, 487 U.S. at 686 (1988) (“Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials. . . .”). The majority opinion in PHH Corp. also distinguished the case on these grounds. PHH Corp. v. CFPB, 881 F.3d 75, 78 (D.C. Cir. 2018) (en banc).

    [35] Free Enter. Fund, 561 U.S. at 484.

    [36] See id. at 485.

    [37] All of the cases cited on the personnel question either involved aggrandizement (Myers, Bowsher) or resulted in the agency design being upheld (Humphreys, Perkins, Morrison).

    [38] Free Enter. Fund, 561 U.S. at 495–98.

    [39] Id. at 498.

    [40] Id. at 502.

    [41] Id. at 500.

    [42] See, e.g., Nixon v. Gen. Servs. Admin., 433 U.S. 425, 443 (1977).

    [43] Free Enter. Fund, 561 U.S. at 502 (“The United States concedes that some constraints on the removal of inferior executive officers might violate the Constitution.”).

    [44] See id. at 496.

    [45] In re Sealed Case, 838 F.2d 476, 508 (D.C. Cir. 1988). Judge Kavanaugh discussed the relationship between the two at length in his dissent in Free Enterprise Fund, which argued that the PCAOB was unconstitutional. See Free Enter. Fund v. PCAOB, 537 F.3d 667, 694 n.4 (D.C. Cir. 2008).

    [46] Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, § 1101, 122 Stat. 2654 (2008).

    [47] Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, Title X, 124 Stat. 1383 (2010).

    [48] See Free Enter. Fund, 561 U.S. at 496, 505–06.

    [49] PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016) (order vacated, rehearing en banc granted Feb. 16, 2017).

    [50] PHH Corp. v. CFPB, 881 F.3d 75, 81 (D.C. Cir. 2018) (en banc). The agency is also empowered to communicate to Congress without White House approval. See 12 U.S.C. § 250.

    [51] PHH Corp., 881 F.3d at 92–101.

    [52] Opening En Banc Brief for Petitioners at *26–27, PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (en banc)  (No. 15-1177), 2017 WL 947733.

    [53] Id. at *28.

    [54] Brief on Rehearing en Banc of Respondent at *17–32, PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (en banc) (No. 15-1177), 2017 WL 1196119.

    [55] Collins v. Mnuchin, 896 F.3d 640, 640 (5th Cir. 2018).

    [56] Id. at 660–61.

    [57] Id. at 661.

    [58] Id. at 661.

    [59] Id. at 662.

    [60] Id. at 667–69.

    [61] Id. at 669. (emphasis added).

    [62] See generally Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 45–77 (2017) (discussing the power of the purse).

    [63] See generally Eloise Pasachoff, The President’s Budget as a Source of Policy Control, 125 Yale L.J. 2182 (2016).

    [64] See Datla & Revesz, supra note 26, at 784–812.

    [65] See Collins v. Mnuchin, 896 F.3d 640, 664 (5th Cir. 2018).

    [66] Professor Leah Litman’s recent work makes a persuasive case against such a presumption in constitutional law. Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407 (2017). The phenomenon can be observed in many Supreme Court and appellate court opinions that would strike down legislation on separation of powers grounds. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1333 (2016) (Roberts, C.J.  dissenting); PHH Corp. v. CFPB, 839 F.3d 1, 7 (D.C. Cir. 2016); Assoc. of Am. Rrs. v. U.S. Dep’t of Transportation, 721 F.3d 666, 673 (D.C. Cir. 2013).

    [67] See generally Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1260–65 (2009) (describing the prevailing theories of federalism).

    [68] New York v. United States, 505 U.S. 144, 182–83 (1992) (discussing the possibility of “shifting responsibility” to avoid accountability).

    [69] Printz v. United States, 521 U.S. 898, 929–31 (1997).

    [70] Id.

    [71] NFIB v. Sebelius, 567 U.S. 519 (2012). The opinion was not framed in Tenth Amendment terms, but did cite to these cases as a means of limiting Congress’s Article I power to tax and spend. Id. at 559. The reach of this decision is still largely undetermined. See, e.g., Eloise Pasachoff, Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law, 62 Am. U. L. Rev. 557 (2013).

    [72] To see this point in action, consider that the majorities in both New York and NFIB rejected the notion that the laws in question were appropriate because a more aggressive exercise of power would be appropriate—the “greater includes the lesser” objection. See NFIB, 567 U.S. at 624 (2012) (Ginsburg, J., concurring in part, concurring in the judgment, and dissenting in part) (“Congress could have recalled the existing legislation, and replaced it with a new law making Medicaid as embracive of the poor as Congress chose. The question posed by the 2010 Medicaid expansion, then, is essentially this: To cover a notably larger population, must Congress take the repeal/reenact route, or may it achieve the same result by amending existing law?”); Printz, 521 U.S. at 959 (1997) (Stevens, J. dissenting) (“Perversely, the majority’s rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State’s rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies.”). This objection does not carry force when the concern is political accountability between the state and federal governments, not simply the substantive limits of Congress’s power. 

    [73] In practice, there are not many cases in this area because courts have long accepted that privatization, even of significant tasks, does not automatically equate to a private exercise of governmental power. See Jon D. Michaels, Constitutional Coup: Privatization’s Threat to the American Republic 125–26 (2017) (“[I]n in the absence of clear, prohibitory language, courts have largely continued giving privatization a free pass. Specifically, courts have generally declined to treat contractors, deputies, and the like as the true recipients of delegated powers—and thus subject to the doctrinal bar on private delegations.”).

    [74] Or possibly the judiciary. See Mistretta v. United States, 488 U.S. 366 (1989).

     [76] Assoc. of Am. Rrs. v. U.S. Dep’t of Transportation, 721 F.3d 666, 670–71 (D.C. Circ. 2013) (“Even an intelligible principle cannot rescue a statute empowering private parties to wield regulatory authority.”), rev’d Dep’t of Trans. v. Assoc. of Am. Rrs., 135 S. Ct. 1225, 1231–33 (2015).

    [76] Assoc. of Am. Rrs., 721 F.3d at 675.

    [77] Id. (citing New York v. United States, 505 U.S. 144 (1992)).

    [78] See generally M. Elizabeth Magill, The Real Separation in the Separation of Powers Law, 86 Va. L. Rev. 1127 (2000) (describing this tension).

    [79] Dep’t of Trans., 135 S. Ct. at 1231–32 (noting that private actors are distinguished by a profit motive, in addition to federal control).

    [80] See generally Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15 (2010). 

    [81] See, e.g., Stiglitz, supra note 6, at 1137–38 (applying such an empirical analysis to the legislative veto mechanism). There is not widespread agreement that this is the proper way to understand the Vesting Clause of Article II. See, e.g., Rao, supra note 10, at 1209–10 (“The recognition that ‘independence’ has an uncertain and unpredictable connection to presidential control and that administration depends largely on political factors makes it all the more important to revisit the constitutional framework of administration and to establish the boundaries for presidential control.”).

    [82] Adrian Vermuele, Law’s Abnegation: From Law’s Empire to the Administrative State 71 (2016).

    [83] Posner, supra note 12, at 1714. As an example, “[t]he reason we should care about constraints on the removal power is not that those constraints upset some balance between Congress and the President. The reason is that those constraints may improve or worsen the performance of the bureaucracy. To determine whether they do, one must consider the particular body in question and ask why the constraints might be useful or harmful.”

      [84] Much of Free Enterprise Fund’s dissent focused exactly on these question, looking to whether the for-cause removal provision presented any discernible limit on the President in practice. Free Enter. Fund v. PCAOB, 561 U.S. 477, 525–26 (2010) (Breyer, J. dissenting).

    [85] PHH Corp. v. CFPB, 881 F.3d 75, 84–91 (D.C. Cir. 2018) (en banc). In all, the case resulted in seven different opinions, addressing different constitutional and statutory questions.

    [86] Id. at 137, 146–48 (Henderson, J. dissenting) (discussing the removal from the annual appropriations process); id. at 188 (Kavanaugh, J. dissenting). Judge Kavanaugh focused on the removal question, consistent with the Supreme Court’s prior cases.

    [87] Id. at 124 (Griffith, J. concurring).

    [88] Id. at 122–23 (Wilkins, J. concurring).

    [89] Id. at 136 (Griffith, J. concurring).

    [90] Collins v. Mnuchin, 896 F.3d 640, 664 (5th Cir. 2018).

    [91] Barkow, supra note 80, at 49–63.

Insincere Rules

Insincere rules are dishonest in important ways. They endorse one set of preferences and values when rule-makers, including elected ones, hold another. They instruct regulated parties, under penalty of law, to do something that rule-makers do not want done. Dishonesty of those sorts may yield good consequences, but it may also yield bad ones, and it runs into deontological objections. These drawbacks may be particularly acute in one area, judicial decision making.

A rich literature addresses the merits of judicial candor and sincerity. Much of that work debates whether judges should provide complete accounts of their reasons for reaching decisions, or whether instrumental gains—preserving judicial collegiality, for example—justify doing less. Among other arguments, proponents of candor claim that transparent decision making makes judges accountable to law and strengthens courts’ legitimacy.

This Essay adds a new dimension to the debate. Judges often make rules; their precedents guide and constrain lower courts, government officials, and litigants. Most courts rely on executives to enforce their decisions, and higher courts cannot review every decision by lower courts. Consequently, judges have high enforcement costs, and that creates an incentive to use insincere rules. They may, for example, issue insincere interpretations of statutes that, if followed to the letter, would produce outcomes that they do not favor and that conflict with law. They may do so without admitting their insincerity—without being candid—as transparency would weaken the benefit of insincerity. Yet that lack of candor would not necessarily undermine their accountability to law or the legitimacy of courts. Insincere rules, by bringing the law in action closer to laws’ objectives, could improve judges’ accountability to law, or at least their fidelity to it. By aligning the law in action with the aim of the statute, insincere rules could enhance the legitimacy of courts, at least among those who know the law and observe the action. Insincere rules, then, do not raise all of the problems caused by a lack of candor. They scramble some intuitions by showing that lying can promote the rule of law.

None of that implies that insincere rules are good, but it does imply that they may not be so bad when used by judges or other rule-makers.

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