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Mail-In Ballots and Constraints on Federal Power Under the Electors Clause

Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. The Trump administration, nevertheless, proactively enacted policy changes to hamper the United States Postal Service’s (“USPS”) ability to effectively handle the rise in mail-in voting. Some states sued the Trump administration in response, raising a variety of claims in their lawsuits. One of the lesser discussed claims is that the executive’s actions violated Article II, § 1, cl. 2, otherwise known as the “Electors Clause.” This clause confers upon the states the exclusive power to appoint their electors “in such Manner as the Legislature thereof may direct.” Thus, the Electors Clause is unique in that it provides states one of their few enumerated constitutional powers—it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the executive’s delegated authority over USPS, to undermine a state’s chosen manner of appointing its electors, such as popular vote by mail-in ballots, a conflict of powers arises. This Essay attempts to resolve this conflict of power, ultimately concluding that within the Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state’s choice to use mail-in ballots in a presidential election.

Introduction

Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. Then-President Trump, nevertheless, came out openly against mail-in ballots, and beginning in April 2020 his administration proactively enacted policy changes to hamper the United States. Postal Service’s (“USPS”) ability to effectively handle the anticipated rise in mail-in voting. In response, a variety of states sued the Trump administration.

These states raised a variety of claims in their lawsuits, some constitutional and some statutory. One of the lesser discussed claims, though, is that the executive’s actions violated the “Electors Clause,” which confers upon the states the exclusive power to appoint their electors “in such Manner as the Legislature thereof may direct.”1 1.U.S. Const. art. II, § 1, cl. 2.Show More Thus, the Electors Clause is unique in that it provides states one of their few enumerated constitutional powers—it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the executive’s delegated authority over USPS, to undermine a state’s chosen manner of appointing its electors during a presidential election, such as popular vote by mail-in ballots, a conflict of powers arises. Federal power clashes with state power. The COVID-19 pandemic has therefore elucidated a vertical separation-of-powers crisis that cannot be ignored.

This Essay attempts to resolve this conflict of power, ultimately concluding that within the Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state’s choice to use mail-in ballots in a presidential election. The Essay proceeds as follows: Part I overviews the 2020 mail-in ballot crisis in the United States. Part II discusses the Electors Clause and what makes the clause a unique state power. Finally, Part III introduces the concept of the Electors Clause providing some constraints on using federal powers to influence presidential elections, thus supplying a vital check on an executive or congressional attempt to sabotage mail-in voting.2 2.It should be noted that this Essay does not cover the post-election litigation that former President Trump instigated to overturn the 2020 presidential election results. This is because such litigation did not present a vertical separation-of-powers conflict, as Trump was bringing forth such litigation as a candidate rather than using any executive power to overturn the results in Wisconsin, Georgia, Pennsylvania, Arizona, and Michigan. For a summary of such cases that were decided on the merits, see Compiling the Truth: A Resource to Refute Trump’s “Stolen Election” Lies, Campaign Legal Ctr. (Mar. 1, 2021), https://campaignlegal.org/‌update/compiling-truth-resource-refute-trumps-stolen-election-lies [https://perma.cc/CG2S-W6KJ].Show More

I. The 2020 Mail-In Ballot Crisis

What is worse than a pandemic? A pandemic in an election year. Such was the case of 2020, where COVID-19 forced the majority of states to reevaluate how they planned to have their citizens vote in the 2020 general election. Prior to the pandemic, only three states used widespread mail-in ballots in their elections.3 3.David Roberts, Voting by Mail Is Fair, Safe, and Easy. Why Don’t More States Use It?, Vox (May 27, 2017, 12:16 PM), https://www.vox.com/policy-and-politics/2017/5/27/‌15701708/voting-by-mail (Washington, Oregon, and Colorado).Show More By November 2020, forty-five states (and D.C.) permitted voters to either request a mail-in ballot or automatically receive one,4 4.See Benjamin Swasey, Map: Mail-In Voting Rules by State—And the Deadlines You Need, NPR (last updated Oct. 14, 2020, 3:00 PM), https://www.npr.org/2020/09/14/‌909338758/map-mail-in-voting-rules-by-state [https://perma.cc/WDA9-5EE4].Show More hoping to avoid mass crowds—and thus mass spreading of the coronavirus—at the polls. Accordingly, an unprecedented percentage of voters (about 46%) this past general election decided to vote by mail.5 5.Pew Rsch. Ctr., Sharp Divisions on Vote Counts, as Biden Gets High Marks for His Post-Election Conduct 19 (2020), https://www.pewresearch.org/politics/2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-marks-for-his-post-election-conduct/ [https://perma.cc/N8FP-B39F]. This helped to create the highest voter turnout in a U.S. presidential election in over a century. See Kevin Schaul, Kate Rabinowitz & Ted Mellnik, 2020 Turnout Is the Highest in over a Century, Wash. Post (last updated Dec. 28, 2020, 4:29 PM), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/ [https://perma‌.cc/9U2U-5UPW].Show More

The federal government, however, was less than supportive of this state-led exodus to mail-in voting. Rather, examples abound of outright hostility and obstruction from the executive. Since the beginning of the pandemic, former President Trump had expressed open contempt toward mail-in voting, stating that it “doesn’t work out well for Republicans.”6 6.Donald Trump (@realDonaldTrump), Twitter (Apr. 8, 2020, 8:20 AM), https://www.thetrumparchive.com/?dates=%5B%222020-04-07%22%2C%222020-04-08%22%5D [https://perma.cc/6CC4-S4YE].Show More Following this, Postmaster General Louis DeJoy—head of USPS—began issuing a variety of policy changes over the summer of 2020 overhauling agency operations critical to the timely and effective delivery of mail. These changes included the removal of hundreds of collection boxes and high-speed sorting machines, the reduction of overtime, the prohibition of necessary late trips and extra trips, the introduction of a pilot program that disrupted the processing of mail in almost 400 localities, and the refusal to treat election-related mail as First Class Mail.7 7.Complaint at 2–3, New York v. Trump (D.D.C. filed Aug. 25, 2020) (No. 1:20-cv-02340).Show More Following these changes, USPS’s general counsel sent letters to states warning that USPS could not guarantee that mail-in ballots would be delivered in time for the November general election.8 8.See id. at 3; see also Tara O’Neill, USPS Warns CT: Mail-In Ballots Not Guaranteed by November Election, CTPost (Aug. 14, 2020, 8:35 PM), https://www.ctpost.com/‌local/article/USPS-warns-CT-Mail-in-ballots-not-guaranteed-by-15485399.php [https://perma.cc/53SJ-6P8J] (explaining that at least 46 states and D.C. received letters).Show More In response, House members in August 2020 voted—with most Democrats in favor and most Republicans opposed—to pass a $25 billion relief package for USPS.9 9.Rachael Bade & Donna Cassata, House Passes Bill to Boost U.S. Postal Service amid Trump Attacks, Wash. Post (Aug. 22, 2020, 6:43 PM), https://www.washingtonpost.com/‌powerpost/house-poised-to-pass-bill-to-boost-us-postal-service-amid-trump-attacks/2020/08/21/c9196fa8-e3c6-11ea-8181-606e603bb1c4_story.html [https://perma.cc/LXJ7-VHX8].Show More President Trump, however, explicitly stated that he planned to block the relief package in an effort to thwart the use of mail-in ballots.10 10.See Deb Riechmann & Anthony Izaguirre, Trump Admits He’s Blocking Postal Cash to Stop Mail-In Votes, AP News (Aug. 13, 2020), https://apnews.com/article/‌14a2ceda724623604cc8d8e5ab9890ed [https://perma.cc/JUN5-UMNS]. Trump eventually signed a stimulus bill granting $10 billion to USPS for Covid-19-related costs, though this happened post-election. See Trump Signs Stimulus Bill with $10 Billion for USPS, PostalReporter.com (Dec. 28, 2020), https://www.postal-reporter.com/blog/trump-signs-stimulus-bill-with-10-billion-for-usps/ [https://perma.cc/7JRE-PHZX].Show More

In the face of this executive action, over twenty states sued Trump and DeJoy, fearful of the effects the USPS changes would have on their residents’ ability to vote.11 11.See Alison Durkee, New York AG Files Multistate Lawsuit, Joins More Than 20 States Suing Postal Service Over DeJoy’s Changes, Forbes (Aug. 25, 2020, 3:09 PM), https://www.forbes.com/sites/alisondurkee/2020/08/25/more-than-20-states-attorneys-general-suing-postal-service-usps-changes-despite-dejoy-reversal/?sh=65898ebb4533 [https://perma.cc/2CCJ-LZKD].Show More The suing states’ arguments ranged from constitutional to statutory, and at least three courts issued preliminary injunctions barring USPS from further implementing its policy changes.12 12.See New York v. Trump, No. 20-cv-2340 (EGS), 2020 WL 5763775, at *13 (D.D.C. Sept. 27, 2020); Jones v. USPS, No. 20 Civ. 6516 (VM), 2020 WL 5627002, at *28–29 (S.D.N.Y. Sept. 21, 2020); Washington v. Trump, No. 1:20-cv-03127-SAB, 2020 WL 5568557, at *6–7 (E.D. Wash. Sept. 17, 2020).Show More The crisis, nonetheless, raises two important questions: Does the federal government have a proper grant of power to manipulate USPS in a manner that undermines mail-in voting, and if so, how? With usage of mail-in ballots likely to remain prevalent in the future, it will be important to answer these questions so that states can shield themselves from further political federal encroachment in forthcoming presidential elections. Accordingly, this Essay seeks to explore these questions, finding the ultimate answer to be that it depends on the federal government’s motive. For now, though, it is enough to say that the executive and Congress wield a wide range of legitimate powers that generally grant them the ability to fund and run USPS as they see fit.13 13.The federal government’s subsidization and regulation of USPS is rooted in at least five federal powers—two legislative and three executive:1. The Postal Clause – The Constitution empowers Congress “[t]o establish Post Offices and post Roads.” U.S. Const. art. I, § 8, cl. 7. The Postal Clause grants Congress the power to regulate “the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents.” Ex parte Jackson, 96 U.S. 727, 732 (1877). Thus, when Congress established USPS, it was vested exclusive control over “the processing, transmission[,] and delivery” of mail shipped through USPS. See Commonwealth v. Nat’l Fed’n of the Blind, 335 A.2d 832, 838 (Pa. Commw. Ct. 1975). Moreover, the Postal Clause allows Congress to control the administration of USPS. See, e.g., Sarah Anderson, Scott Klinger & Brian Wakamo, How Congress Manufactured a Postal Crisis — And How to Fix It, Inst. for Pol’y Stud. (July 15, 2019), https://ips-dc.org/how-congress-manufactured-a-postal-crisis-and-how-to-fix-it/ [https://perma.cc/4PET-7UF4] (examining how Congress has used its power to control USPS through its retirement funding).2. The Appropriations Clause – The power to fund USPS—and all federal agencies—is vested in Congress under the Appropriations Clause, establishing that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. Consequently, the Appropriations Clause accords Congress the “power of the purse” to, for instance, grant USPS a $25 billion relief package. See Sean M. Stiff, Cong. Rsch. Serv., R46417, Congress’s Power over Appropriations: Constitutional and Statutory Provisions 1 (2020), https://crsreports.congress.gov/product/pdf/R/R46417 [https://perma.cc/LE9R-SWET].3. The Presentment Clause – The President has the power to veto “[e]very [b]ill” passed by Congress, including an appropriations bill. See U.S. Const. art. I, § 7, cl. 2. Under this power, the President may veto a $25 billion USPS relief package, as Trump threatened during his Presidency. See Riechmann & Izaguirre, supra note 10. Congress would need a two-thirds majority to override said veto.4. The Vesting & Take Care Clauses – Many scholars would agree that the executive has the power—if not duty—to faithfully execute powers delegated to it by Congress. See, e.g., Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 280–81 (2021). The Constitution, after all, vests “[t]he executive Power” in “a President of the United States,” and states that the executive “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. art. II, § 3. Congress delegates much rulemaking authority to the Postmaster General. See, e.g., 18 U.S.C. § 3061(c)(4)(A) (2018). Thus, nondelegation doctrine concerns aside, the Postmaster General—wielding executive power—may “faithfully execute” their congressionally assigned role by “promulgat[ing] regulations generally as to the conduct of [USPS],” including policy changes such as refusing to treat election-related mail as First-Class Mail. See Daniel L. Pines, The Central Intelligence Agency’s “Family Jewels”: Legal Then? Legal Now?, 84 Ind. L.J. 637, 672 n.306 (2009) (quoting Ex parte Willman, 277 F. 819, 821 (S.D. Ohio 1921)).Naturally, one may be able to point to other powers, but the preceding five seem to be most relevant, at least in the context of mail-in voting.Show More

This Essay, nevertheless, does not concern itself with which federal power is implicated. This does not matter. Rather, as Part II will demonstrate, so long as the federal government is using any of these powers to undermine a state’s decision to use mail-in ballots—which it has14 14.See supra notes 7–10 and accompanying text.Show More—then a vertical separation-of-powers problem arises between said federal powers and the states’ exclusive power under the Electors Clause to choose the manner of appointing electors.

II. The Electors Clause: A Unique Exclusive State Power

The Constitution explicitly enumerates very few exclusive state powers. Rather, powers not delegated within the Constitution exclusively to the federal government are either reserved to the states,15 15.See U.S. Const. amend. X.Show More or run concurrent between the federal and state governments.16 16.See, e.g., infra section III.A.Show More One of the few exclusive state powers that exists, however, resides in Article II, § 1, cl. 2, known by some scholars as the Electors Clause.17 17.See, e.g., Nathaniel F. Rubin, The Electors Clause and the Governor’s Veto, 106 Cornell L. Rev. Online 57, 60 (2021).Show More Accordingly, this clause grants states a unique defense against federal encroachment into elections, or at the very least presidential elections. This Part will overview this power, its relationship to mail-in voting, and its seeming collision with the federal powers implicated in the 2020 mail-in ballot crisis.

A. The Electors Clause

Article II, § 1, cl. 2 of the Constitution provides that “[e]ach 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.”18 18.U.S. Const. art. II, § 1, cl. 2.Show More This does not mean state legislatures carry some of the power to choose the manner of appointing their state’s electors, but all of the power to do so.19 19.Cf. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (asserting that the language of the Vesting Clause “does not mean some of the executive power, but all of the executive power”); see also Robert G. Natelson, The Enumerated Powers of States, 3 Nev. L.J. 469, 470 n.11 (2003) (listing the Electors Clause as one of the few exclusive state powers enumerated in the Constitution).Show More As of 2020, all states have chosen to appoint their electors by some method of popular vote, and all but two states have chosen to do this through a traditional winner-take-all method based on state-wide results.20 20.The two exceptions being Maine and Nebraska, which appoint two electors based on the statewide vote and the rest based on results within each congressional district. Meilan Solly, Why Do Maine and Nebraska Split Their Electoral Votes?, Smithsonian Mag. (Nov. 5, 2020), https://www.smithsonianmag.com/smart-news/why-do-maine-and-nebraska-split-their-electoral-votes-180976219/ [https://perma.cc/7AMV-MVK6].Show More In doing so, the states have exercised their Electors Clause power—the “manner” chosen by the state legislature is a popular vote, which then determines whether a Democratic slate of electors or Republican slate of electors will be appointed to vote for the President and Vice President.

The importance of the exclusivity of a state’s power under the Electors Clause cannot be overstated. Compare the clause with the Elections Clause, which governs congressional elections. The Elections Clause says that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” somewhat mirroring the Electors Clause; however, the Elections Clause goes on to say that “Congress may at any time by Law make or alter such Regulations.”21 21.U.S. Const. art. I, § 4, cl. 1.Show More In other words, states may regulate congressional elections, but Congress may preempt said regulations. This preemptive power was illustrated recently in Arizona v. Inter Tribal Council, in which the Supreme Court held that the National Voter Registration Act’s (NVRA) requirement for states to “accept and use” a Federal Form to register voters for congressional elections preempted Arizona’s additional evidence-of-citizenship requirement for registration.22 22.See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 13–15 (2013).Show More If, however, Arizona’s evidence-of-citizenship requirement had hypothetically been limited to registration for the presidential election, the Court might have come to a different conclusion.23 23.See infra Part III.A.Show More Unlike the Elections Clause, the Electors Clause grants no express preemptive powers to Congress—or any federal branch—thus showcasing the unique power it confers upon the states.24 24.See Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 Nw. U.L. Rev. Online 103, 108 (2017) (noting that there is “a strong textual basis for believing that Congress’s authority over presidential elections is limited to its powers to enforce the constitutional right to vote and under the Spending Clause”).Show More

B. The Electors Clause & Mail-In Ballots

This power is not only uniquely exclusive, but broad in scope—broad enough to cover a state’s choice to appoint electors by popular mail-in voting. Last year, the Supreme Court provided a rare analysis of the Electors Clause in Chiafalo v. Washington, which upheld state laws fining faithless electors. The Chiafalo Court began by describing the Electors Clause as “‘conveying the broadest power of determination’ over who becomes an elector.”25 25.Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)).Show More As Justice Kagan states, “[t]he Constitution is barebones about electors.”26 26.Id.Show More Consequently, a state may appoint its electors “in whatever way it likes.”27 27.Id.Show More And if, according to the Court, a state’s choice to punish faithless electors is covered by the Electors Clause, surely a state’s choice to use popular voting by combination of in-person and mail-in ballots (or exclusively mail-in, as is the case in states like Oregon28 28.Sen. Ron Wyden, Opinion, Oregon Has Used Vote by Mail Since Electing Me in 1996. Those Who Say It Can’t Work Are Lying., NBC News (Apr. 30, 2020, 9:00 AM), https://www.nbcnews.com/think/opinion/oregon-has-used-vote-mail-electing-me-1996-those-who-ncna1195646 [https://perma.cc/PU6T-PWTV].Show More) as its manner of appointing electors also falls under the clause’s protection.29 29.Cf. Oregon v. Mitchell, 400 U.S. 112, 291 (1970) (Stewart, J., concurring in part and dissenting in part) (noting that hosting a “popular election” qualifies as a “manner” of appointing electors).Show More Some may, nevertheless, point out that the decision to implement mail-in ballots has often been made by state election commissions rather than the legislature. However, even when this is the case, courts have suggested that this falls under “Manner.”30 30.See, e.g., Trump v. Wis. Elections Comm’n, 983 F.3d 919, 926–27 (7th Cir. 2020) (citing Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring)) (“Chief Justice Rehnquist suggested that the proper inquiry under the Electors Clause is to ask whether a state conducted the election in a manner substantially consistent with the ‘legislative scheme’ for appointing electors.”).Show More

Therefore, when the President or Congress uses their own powers to undermine a state’s decision to utilize mail-in ballots in a presidential election (e.g., vetoing USPS funding), the result appears to be a conflict of powers between the federal and state governments. The next section will discuss this in more detail.

C. When Powers Collide

Let us begin with a realistic hypothetical: The Pennsylvania General Assembly is severely concerned about an ongoing pandemic and wants to avoid crowding during the presidential election. The Assembly thus passes a bill requiring mail-in ballots to automatically be sent to every registered voter in Pennsylvania—said ballots include the presidential candidates. Concerned that swing states moving to mail-in voting will hurt his reelection chances, the president vetoes an appropriations bill that includes USPS funding, and orders the Postmaster General to have USPS no longer treat election-related mail as First-Class Mail. Due to the President’s actions, hundreds of thousands of Pennsylvanians are not able to receive or send in their ballot in time, and thus may not vote in the presidential election (among other elections).

Pennsylvania sues the president’s administration, arguing that its actions violate Pennsylvania’s exclusive power under the Electors Clause to appoint its electors in a manner chosen by its legislature: mail-in voting.31 31.Two states in fact raised this argument in lawsuits leading up to the 2020 general election. See Complaint at 7, 63, Pennsylvania v. DeJoy, No. 2:20-cv-04096 (E.D. Pa. filed Aug. 21, 2020); Complaint at 107–08, Washington v. Trump, No. 1:20-cv-03127 (E.D. Wash. filed Aug. 18, 2020).Show More The president’s administration responds by asserting that it has the power under the Presentment Clause and Take Care Clause to do what it did. Who wins here? There is, as of now, no clear answer, for it took the COVID-19 pandemic to highlight that this conflict of powers even exists.

Perhaps some may argue that Pennsylvania has no real claim because the federal government never had to create USPS in the first place,32 32.But see John Nichols, Congress Has a Constitutional Duty to Preserve and Promote the Post Office, Nation: Budgets Blog (Mar. 22, 2013), https://www.thenation.com/‌article/archive/congress-has-constitutional-duty-preserve-and-promote-post-office (arguing that the Postal Clause creates a congressional “responsibility” to establish a post office).Show More meaning Pennsylvania is not entitled to its service. This Essay submits that the answer is not so simple though. For example, suppose a traveler comes across a river and is told she has two choices to cross said river: a bridge or a boat. She is affirmed by, of all people, the boat’s owner that this choice is hers alone to make. The traveler ultimately chooses the boat. Moments before the traveler enters the boat, however, the boat owner dismantles the engine, rendering the boat inoperable. The traveler exclaims, “Hold on, I thought you said that I had the power to choose how to cross the river?” The boat owner responds, “Yes, you had the power to choose how to cross the river, but I have the power as the boat’s owner to dismantle its engine. Now you must use the bridge!” Are we to pretend that the traveler really had a choice here? That does not feel right. Sure, the boat owner had no obligation to provide the boat in the first place, but it is nevertheless there. And so long as it is there, and travelers are told that they have the power to choose to use it to cross the river, it seems disingenuous to claim that they really have this power if the boat owner can make the boat unusable at any moment to disrupt a traveler’s choice.

Likewise, USPS exists. Perhaps it does not need to exist,33 33.See Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835–37, 89 Nw. U.L. Rev. 785, 827–28 (1995) (“The postal power included the power not to establish post offices and post roads.”). But see Nichols, supra note 32.Show More but it does. And so long as it exists, the states have the exclusive power to choose to use popular vote by mail-in ballots as their manner of appointing electors. Otherwise, if we accept the notion that the federal government can use its powers to deliberately sabotage a state’s choice to use mail-in ballots in the presidential election, then the Electors Clause is essentially made null. It would not convey the “broadest power of determination” to the states.34 34.Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)).Show More

With this said, the question then becomes how to balance the states’ exclusive power under the Electors Clause to run their presidential elections by mail-in ballot with the federal government’s powers to fund and manage USPS. The Supreme Court itself has no clear or consistent method for determining when one constitutional provision takes precedent over another.35 35.Andrew M. Hetherington, Comment, Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on Congress by the Copyright Clause, 9 Mich. Telecomm. Tech. L. Rev. 457, 485 (2003).Show More Part III posits, nevertheless, that the solution rests within the very subtext of our Constitution.

III. Constraints on Federal Power Under the Electors Clause

In one corner of the ring, we have the federal government. In the other corner, we have the states. Both claim authority over the power to control the use of mail-in ballots in presidential elections. Perhaps, though, there is no need for such a fight. Perhaps the solution to this conflict can be solved easily by simply reframing the issue. This Part does just that. Instead of viewing the mail-in ballot crisis as a conflict between powers, this Part asserts that these powers should be recognized as concurrent. That is, both the federal government and states have legitimate claims to power over the use of mail-in ballots in presidential elections. When framed this way, it becomes possible to look to constitutional doctrines that arise in other instances of concurrent powers, such as the Dormant Commerce Clause, to conclude that within the Electors Clause exists an inferred restraint on federal powers that can be used to balance the competing interests of the federal government and the states in the case of mail-in ballots. This Part lays out such a theory and then goes into said theory’s implications and potential critiques.

A. The Theory

The theory is this: If the federal government uses its powers to discriminate against a state’s power under the Electors Clause to determine the manner in which its electors are appointed, the federal government’s action is per se unconstitutional. If the federal government, nevertheless, uses a legitimate power in a manner that only incidentally impacts a state’s appointment of electors, then this action is permissible so long as the burden is not excessive. Now, how do we get here?

The first step is to recognize that when, say, the president vetoes an appropriations bill to fund USPS, and state X’s legislature votes to conduct its 2020 elections—including the presidential election—entirely by mail-in voting, the two constitutional powers implicated in these decisions are not entirely exclusive. Rather, imagine a Venn diagram, where one bubble is the president’s Presentment Clause power and the other is state X’s Electors Clause power. For the most part, these bubbles do not overlap; however, there is a tiny sliver where the bubbles touch, and in this sliver, it states, “Determining whether mail-in ballots will be a viable form of voting for state X’s citizens in the presidential election.” Thus, within that tiny sliver, the federal government’s power to fund and manage USPS and the states’ power to determine the manner of appointing their electors transform from being exclusive powers into what can best be described as concurrent.

When we accept this concurrent nature, we can look to how the Supreme Court has historically resolved state–federal power conflicts in which the powers were exclusive in some ways but “concurrent . . . [in] other ways.”36 36.See Commerce Clause Limitations on State Regulation, UMKC, http://law2.umkc.edu/‌faculty/projects/ftrials/conlaw/statecommerce.htm [https://perma.cc/5L7E-E6XZ] (last visited Mar. 22, 2021).Show More For instance, we can look to the Dormant Commerce Clause, which arises in cases in which a state’s action impacts interstate commerce. The Commerce Clause confers upon Congress the power to, among other things, “regulate Commerce . . . among the several States.”37 37.U.S. Const. art. I, § 8, cl. 3.Show More This power has, however, been deemed “not absolutely exclusive,” given the clause’s silence on the states’ power to regulate interstate commerce.38 38.See Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 41 (2009).Show More Faced with this uncertainty, the Supreme Court laid out the following standard that has become known as the Dormant Commerce Clause: When a state statute intentionally discriminates against interstate commerce, the statute is per se unconstitutional, and will only survive if demonstrated that there is “no other means to advance a legitimate local purpose.”39 39.United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338–39 (2007). This is, needless to say, an extraordinarily high bar to meet.Show More If, however, said statute’s effects on interstate commerce are “only incidental,” the statute will only be struck down if it imposes an undue burden on interstate commerce.40 40.See id. at 346 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)).Show More

Given the uncertainty surrounding how federal and state powers interact in situations like the 2020 mail-in ballot crisis, it seems only reasonable to turn to the Dormant Commerce Clause as a helpful doctrinal analogy to provide guidance on navigating through this state–federal powers conflict. And in doing so, we arrive at the following conclusion: The federal government may not use its federal powers to purposefully discriminate against the states’ choosing of a manner of appointing electors; it may, however, generally use its federal powers in a way that only incidentally impacts the states’ Electors Clause powers.

There is, naturally, one key difference between the Dormant Commerce Clause and the Electors Clause, in that the former resolves a conflict between an enumerated federal power and an implied state power, whereas the latter is intended to resolve a conflict between two enumerated powers. This is why this Essay is not claiming there to be a “Dormant Electors Clause”; rather, the constraint on federal powers is derived from the explicit structure of the U.S. Constitution. This is also why it seems necessary to include a disclaimer that this Essay’s theory could presumably work in reverse: A state may not use its Electors Clause power to discriminate against the practice of a federal power (though one may need to get extra creative to imagine what such a scenario might look like). Regardless, turning to the Dormant Commerce Clause jurisprudence for guidance to develop a doctrinal framework in these Electors Clause cases appears to be the fairest and most constitutionally sound method to respect both federal and state government interests while resolving the conflicts of power that have arisen in the mail-in ballot crisis.

B. The Implications

If a court were to recognize and apply this federal constraint, at least two important implications would follow for mail-in voting. First, the federal government could not use its powers over USPS to deliberately undermine a state’s decision to use mail-in ballots in a presidential election. Accordingly, when then-President Trump openly stated that he was vetoing an appropriations bill to fund USPS specifically because he did not want the funding to assist mail-in voting, he behaved unconstitutionally. Conversely, if, say, Congress defunded USPS for some neutral reason (e.g., obsession with free market values) that only incidentally made it harder to vote by mail, this would almost assuredly be permissible. Of course, the question then becomes how courts would remedy a violation. It seems quite unlikely, for instance, that they could enjoin the President from vetoing a bill. At the very least, the lawsuits against the Trump administration suggest that courts could enjoin USPS from instituting policy changes aimed at making mail-in voting more difficult.41 41.See supra text accompanying note 12.Show More

Furthermore, this federal constraint could indirectly preserve mail-in voting for other elections beyond the presidential one. As noted in Part II.A, the Elections Clause grants Congress exclusive preemptive authority over the regulation of congressional elections, meaning states would have a tougher time arguing that Congress, and the executive by delegation, violated the Constitution by making it more difficult to use mail-in ballots in congressional elections. These elections, however, do not exist on separate ballots. Typically, a ballot will contain all elections relevant to a voter, including presidential, congressional, gubernatorial, etc. Consequently, if a court enjoined the federal government from certain actions negatively impacting mail-in voting because it found discrimination against states’ Electors Clause powers, this would mean that all elections on a ballot containing the presidential election would be protected by proxy.42 42.Midterm elections would naturally not benefit from this though, since there would be no presidential election on the ballot.Show More

C. The Critiques

One critique of this Essay’s theory could be that it violates the Supremacy Clause. It seems odd, after all, to claim that a state action can displace a federal action. The Supremacy Clause, however, has no relevance here, since the Electors Clause is part of the enumerated Constitution, and thus part of the “supreme Law of the Land.”43 43.U.S. Const. art. VI, cl. 2.Show More And since the Supreme Court rejects any hierarchy of constitutional provisions, the Electors Clause may not be preempted.44 44.See Ken Hyle, When Constitutional Rights Clash: Masterpiece Cakeshop’s Potential Legacy, 9 ConLawNOW 200, 202 (2018).Show More

Another critique may point to the fact that the Supreme Court has previously held that Congress has some regulatory powers over presidential elections. In Burroughs v. United States, for example, the Court upheld an act requiring candidate committees, including those for presidential candidates, to keep account of all contributions received or donated by them.45 45.290 U.S. 534, 548 (1934).Show More The Burroughs Court reasoned that Congress possessed the power to preserve the integrity of presidential elections.46 46.See id. at 544–45.Show More As Professors Dan Coenen and Edward Larson note though, there is a difference between controlling the manner in which electors are appointed (e.g., popular vote by mail-in ballots) and adopting electoral procedures necessary to implement said manner (e.g., campaign finance laws to quell the possibility of corruption within a popular election).47 47.See Dan T. Coenen & Edward J. Larson, Congressional Power over Presidential Elections: Lessons from the Past and Reforms for the Future, 43 Wm. & Mary L. Rev. 851, 904 (2002) (“Ballot-and-equipment laws simply do not control systems for selecting electors, substantive selection criteria, or candidates who might qualify as proper electors. Rather such laws concern only the implementing procedures to be used if one available substantive manner of selection—that is, the election manner—is chosen by the state.”).Show More Hence, Burroughs does not support any notion that the federal government may encroach on the states’ Electors Clause powers.

Conclusion

The Covid-19 pandemic revealed a conflict of federal and state powers that shook the 2020 election to its core. And while the 2020 election has passed, the practice of mail-in voting will likely remain prevalent in the future. Moreover, unforeseeable future crises could further change up how states choose to conduct their elections. Consequently, this conflict must be resolved, and this Essay argues that restraining federal powers from being used to discriminate against states’ Electors Clause powers is a fair and constitutional means of doing so.

  1. * J.D. Candidate 2021, Columbia Law School. The author would like to thank Professors Henry P. Monaghan, Jessica Bulman-Pozen, and Richard Briffault for their comments and guidance. Any faults in this Essay are my own. ↑
  2. U.S. Const. art. II, § 1, cl. 2. ↑
  3. It should be noted that this Essay does not cover the post-election litigation that former President Trump instigated to overturn the 2020 presidential election results. This is because such litigation did not present a vertical separation-of-powers conflict, as Trump was bringing forth such litigation as a candidate rather than using any executive power to overturn the results in Wisconsin, Georgia, Pennsylvania, Arizona, and Michigan. For a summary of such cases that were decided on the merits, see Compiling the Truth: A Resource to Refute Trump’s “Stolen Election” Lies, Campaign Legal Ctr. (Mar. 1, 2021), https://campaignlegal.org/‌update/compiling-truth-resource-refute-trumps-stolen-election-lies [https://perma.cc/CG2S-W6KJ]. ↑
  4. David Roberts, Voting by Mail Is Fair, Safe, and Easy. Why Don’t More States Use It?, Vox (May 27, 2017, 12:16 PM), https://www.vox.com/policy-and-politics/2017/5/27/‌15701708/voting-by-mail (Washington, Oregon, and Colorado). ↑
  5. See Benjamin Swasey, Map: Mail-In Voting Rules by State—And the Deadlines You Need, NPR (last updated Oct. 14, 2020, 3:00 PM), https://www.npr.org/2020/09/14/‌909338758/map-mail-in-voting-rules-by-state [https://perma.cc/WDA9-5EE4]. ↑
  6. Pew Rsch. Ctr., Sharp Divisions on Vote Counts, as Biden Gets High Marks for His Post-Election Conduct 19 (2020), https://www.pewresearch.org/politics/2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-marks-for-his-post-election-conduct/ [https://perma.cc/N8FP-B39F]. This helped to create the highest voter turnout in a U.S. presidential election in over a century. See Kevin Schaul, Kate Rabinowitz & Ted Mellnik, 2020 Turnout Is the Highest in over a Century, Wash. Post (last updated Dec. 28, 2020, 4:29 PM), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/ [https://perma‌.cc/9U2U-5UPW]. ↑
  7. Donald Trump (@realDonaldTrump), Twitter (Apr. 8, 2020, 8:20 AM), https://www.thetrumparchive.com/?dates=%5B%222020-04-07%22%2C%222020-04-08%22%5D [https://perma.cc/6CC4-S4YE]. ↑
  8. Complaint at 2–3, New York v. Trump (D.D.C. filed Aug. 25, 2020) (No. 1:20-cv-02340). ↑
  9. See id. at 3; see also Tara O’Neill, USPS Warns CT: Mail-In Ballots Not Guaranteed by November Election, CTPost (Aug. 14, 2020, 8:35 PM), https://www.ctpost.com/‌local/article/USPS-warns-CT-Mail-in-ballots-not-guaranteed-by-15485399.php [https://perma.cc/53SJ-6P8J] (explaining that at least 46 states and D.C. received letters). ↑
  10. Rachael Bade & Donna Cassata, House Passes Bill to Boost U.S. Postal Service amid Trump Attacks, Wash. Post (Aug. 22, 2020, 6:43 PM), https://www.washingtonpost.com/‌powerpost/house-poised-to-pass-bill-to-boost-us-postal-service-amid-trump-attacks/2020/08/21/c9196fa8-e3c6-11ea-8181-606e603bb1c4_story.html [https://perma.cc/LXJ7-VHX8]. ↑
  11. See Deb Riechmann & Anthony Izaguirre, Trump Admits He’s Blocking Postal Cash to Stop Mail-In Votes, AP News (Aug. 13, 2020), https://apnews.com/article/‌14a2ceda724623604cc8d8e5ab9890ed [https://perma.cc/JUN5-UMNS]. Trump eventually signed a stimulus bill granting $10 billion to USPS for Covid-19-related costs, though this happened post-election. See Trump Signs Stimulus Bill with $10 Billion for USPS, PostalReporter.com (Dec. 28, 2020), https://www.postal-reporter.com/blog/trump-signs-stimulus-bill-with-10-billion-for-usps/ [https://perma.cc/7JRE-PHZX]. ↑
  12. See Alison Durkee, New York AG Files Multistate Lawsuit, Joins More Than 20 States Suing Postal Service Over DeJoy’s Changes, Forbes (Aug. 25, 2020, 3:09 PM), https://www.forbes.com/sites/alisondurkee/2020/08/25/more-than-20-states-attorneys-general-suing-postal-service-usps-changes-despite-dejoy-reversal/?sh=65898ebb4533 [https://perma.cc/2CCJ-LZKD]. ↑
  13. See New York v. Trump, No. 20-cv-2340 (EGS), 2020 WL 5763775, at *13 (D.D.C. Sept. 27, 2020); Jones v. USPS, No. 20 Civ. 6516 (VM), 2020 WL 5627002, at *28–29 (S.D.N.Y. Sept. 21, 2020); Washington v. Trump, No. 1:20-cv-03127-SAB, 2020 WL 5568557, at *6–7 (E.D. Wash. Sept. 17, 2020). ↑
  14. The federal government’s subsidization and regulation of USPS is rooted in at least five federal powers—two legislative and three executive:1. The Postal Clause – The Constitution empowers Congress “[t]o establish Post Offices and post Roads.” U.S. Const. art. I, § 8, cl. 7. The Postal Clause grants Congress the power to regulate “the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents.” Ex parte Jackson, 96 U.S. 727, 732 (1877). Thus, when Congress established USPS, it was vested exclusive control over “the processing, transmission[,] and delivery” of mail shipped through USPS. See Commonwealth v. Nat’l Fed’n of the Blind, 335 A.2d 832, 838 (Pa. Commw. Ct. 1975). Moreover, the Postal Clause allows Congress to control the administration of USPS. See, e.g., Sarah Anderson, Scott Klinger & Brian Wakamo, How Congress Manufactured a Postal Crisis — And How to Fix It, Inst. for Pol’y Stud. (July 15, 2019), https://ips-dc.org/how-congress-manufactured-a-postal-crisis-and-how-to-fix-it/ [https://perma.cc/4PET-7UF4] (examining how Congress has used its power to control USPS through its retirement funding).

    2. The Appropriations Clause – The power to fund USPS—and all federal agencies—is vested in Congress under the Appropriations Clause, establishing that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. Consequently, the Appropriations Clause accords Congress the “power of the purse” to, for instance, grant USPS a $25 billion relief package. See Sean M. Stiff, Cong. Rsch. Serv., R46417, Congress’s Power over Appropriations: Constitutional and Statutory Provisions 1 (2020), https://crsreports.congress.gov/product/pdf/R/R46417 [https://perma.cc/LE9R-SWET].

    3. The Presentment Clause – The President has the power to veto “[e]very [b]ill” passed by Congress, including an appropriations bill. See U.S. Const. art. I, § 7, cl. 2. Under this power, the President may veto a $25 billion USPS relief package, as Trump threatened during his Presidency. See Riechmann & Izaguirre, supra note 10. Congress would need a two-thirds majority to override said veto.

    4. The Vesting & Take Care Clauses – Many scholars would agree that the executive has the power—if not duty—to faithfully execute powers delegated to it by Congress. See, e.g., Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 280–81 (2021). The Constitution, after all, vests “[t]he executive Power” in “a President of the United States,” and states that the executive “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. art. II, § 3. Congress delegates much rulemaking authority to the Postmaster General. See, e.g., 18 U.S.C. § 3061(c)(4)(A) (2018). Thus, nondelegation doctrine concerns aside, the Postmaster General—wielding executive power—may “faithfully execute” their congressionally assigned role by “promulgat[ing] regulations generally as to the conduct of [USPS],” including policy changes such as refusing to treat election-related mail as First-Class Mail. See Daniel L. Pines, The Central Intelligence Agency’s “Family Jewels”: Legal Then? Legal Now?, 84 Ind. L.J. 637, 672 n.306 (2009) (quoting Ex parte Willman, 277 F. 819, 821 (S.D. Ohio 1921)).

    Naturally, one may be able to point to other powers, but the preceding five seem to be most relevant, at least in the context of mail-in voting. ↑

  15. See supra notes 7–10 and accompanying text. ↑
  16. See U.S. Const. amend. X. ↑
  17. See, e.g., infra section III.A. ↑
  18. See, e.g., Nathaniel F. Rubin, The Electors Clause and the Governor’s Veto, 106 Cornell L. Rev. Online 57, 60 (2021). ↑
  19. U.S. Const. art. II, § 1, cl. 2. ↑
  20. Cf. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (asserting that the language of the Vesting Clause “does not mean some of the executive power, but all of the executive power”); see also Robert G. Natelson, The Enumerated Powers of States, 3 Nev. L.J. 469, 470 n.11 (2003) (listing the Electors Clause as one of the few exclusive state powers enumerated in the Constitution). ↑
  21. The two exceptions being Maine and Nebraska, which appoint two electors based on the statewide vote and the rest based on results within each congressional district. Meilan Solly, Why Do Maine and Nebraska Split Their Electoral Votes?, Smithsonian Mag. (Nov. 5, 2020), https://www.smithsonianmag.com/smart-news/why-do-maine-and-nebraska-split-their-electoral-votes-180976219/ [https://perma.cc/7AMV-MVK6]. ↑
  22. U.S. Const. art. I, § 4, cl. 1. ↑
  23. See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 13–15 (2013). ↑
  24. See infra Part III.A. ↑
  25. See Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 Nw. U.L. Rev. Online 103, 108 (2017) (noting that there is “a strong textual basis for believing that Congress’s authority over presidential elections is limited to its powers to enforce the constitutional right to vote and under the Spending Clause”). ↑
  26. Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)). ↑
  27. Id. ↑
  28. Id. ↑
  29. Sen. Ron Wyden, Opinion, Oregon Has Used Vote by Mail Since Electing Me in 1996. Those Who Say It Can’t Work Are Lying., NBC News (Apr. 30, 2020, 9:00 AM), https://www.nbcnews.com/think/opinion/oregon-has-used-vote-mail-electing-me-1996-those-who-ncna1195646 [https://perma.cc/PU6T-PWTV]. ↑
  30. Cf. Oregon v. Mitchell, 400 U.S. 112, 291 (1970) (Stewart, J., concurring in part and dissenting in part) (noting that hosting a “popular election” qualifies as a “manner” of appointing electors). ↑
  31. See, e.g., Trump v. Wis. Elections Comm’n, 983 F.3d 919, 926–27 (7th Cir. 2020) (citing Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring)) (“Chief Justice Rehnquist suggested that the proper inquiry under the Electors Clause is to ask whether a state conducted the election in a manner substantially consistent with the ‘legislative scheme’ for appointing electors.”). ↑
  32. Two states in fact raised this argument in lawsuits leading up to the 2020 general election. See Complaint at 7, 63, Pennsylvania v. DeJoy, No. 2:20-cv-04096 (E.D. Pa. filed Aug. 21, 2020); Complaint at 107–08, Washington v. Trump, No. 1:20-cv-03127 (E.D. Wash. filed Aug. 18, 2020). ↑
  33. But see John Nichols, Congress Has a Constitutional Duty to Preserve and Promote the Post Office, Nation: Budgets Blog (Mar. 22, 2013), https://www.thenation.com/‌article/archive/congress-has-constitutional-duty-preserve-and-promote-post-office (arguing that the Postal Clause creates a congressional “responsibility” to establish a post office). ↑
  34. See Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835–37, 89 Nw. U.L. Rev. 785, 827–28 (1995) (“The postal power included the power not to establish post offices and post roads.”). But see Nichols, supra note 32. ↑
  35. Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)). ↑
  36. Andrew M. Hetherington, Comment, Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on Congress by the Copyright Clause, 9 Mich. Telecomm. Tech. L. Rev. 457, 485 (2003). ↑
  37. See Commerce Clause Limitations on State Regulation, UMKC, http://law2.umkc.edu/‌faculty/projects/ftrials/conlaw/statecommerce.htm [https://perma.cc/5L7E-E6XZ] (last visited Mar. 22, 2021). ↑
  38. U.S. Const. art. I, § 8, cl. 3. ↑
  39. See Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 41 (2009). ↑
  40. United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338–39 (2007). This is, needless to say, an extraordinarily high bar to meet. ↑
  41. See id. at 346 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)). ↑
  42. See supra text accompanying note 12. ↑
  43. Midterm elections would naturally not benefit from this though, since there would be no presidential election on the ballot. ↑
  44. U.S. Const. art. VI, cl. 2. ↑
  45. See Ken Hyle, When Constitutional Rights Clash: Masterpiece Cakeshop’s Potential Legacy, 9 ConLawNOW 200, 202 (2018). ↑
  46. 290 U.S. 534, 548 (1934). ↑
  47. See id. at 544–45. ↑

  48. See Dan T. Coenen & Edward J. Larson, Congressional Power over Presidential Elections: Lessons from the Past and Reforms for the Future, 43 Wm. & Mary L. Rev. 851, 904 (2002) (“Ballot-and-equipment laws simply do not control systems for selecting electors, substantive selection criteria, or candidates who might qualify as proper electors. Rather such laws concern only the implementing procedures to be used if one available substantive manner of selection—that is, the election manner—is chosen by the state.”). ↑

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

This Note brings novel historical evidence to bear on the question of whether religious exemptions from neutral, generally applicable laws are compelled by the First Amendment. In the wake of the Supreme Court’s decision in Smith (1990), a robust scholarship on relevant historical practice has emerged on both sides of the issue. Those in favor of religious exemptions argue that history supports their position because (1) the period after ratification was marked by extensive religious freedom and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.

This Note shows how recently uncovered evidence about the disestablishment regulation of religious institutions, especially the proliferation of the corporate form, undermines both of these propositions. Religious freedom in the period after ratification was sought through government regulation, not through exemption, and early state governments were hardly limited in their invasions into church domain. An accurate history matters here. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence and the addition of Justices committed to constitutional interpretation centered on historical meaning indicate that the history of free exercise during the Founding era may prove decisive the next time that the Court considers the issue of religious exemption.

Introduction

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place.1 1.See generally Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (recounting the history of Father Kohlmann’s case at length).Show More One of his parishioners, James Keating, had reported a theft of jewelry to the police.2 2.William Sampson, The Catholic Question in America 5 (N.Y., Edward Gillespy 1813).Show More Later, Keating withdrew his complaint after his property was returned.3 3.Id.Show More Keating, out of fear of being arrested, admitted that Father Kohlmann arranged the return of his stolen goods.4 4.Id.Show More Based on other evidence, two immigrants who were members of St. Peter’s were indicted as receivers of the stolen property, and Father Kohlmann was called as a witness to identify those whom he had convinced to return the stolen jewelry.5 5.Id. at 5–6.Show More The priest had a choice: refuse to testify and be jailed, or reveal the names of his penitent parishioners and, in his own words, “become a traitor to my church, to my sacred ministry and to my God.”6 6.Id. at 9; Walsh, supra note 1, at 21.Show More A lower state court found that the choice Father Kohlmann had been put to was untenable. It held that an exemption from the evidentiary requirements of the courtroom was mandated by the New York Constitution’s religious free exercise provision.7 7.SeeSampson, supra note 2, at 108–14.Show More

As the first state court decision to require an exemption on the basis of free exercise,8 8.See Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence, 80 Ind. L.J. 1037, 1038 n.4 (2005).Show More Father Kohlmann’s case—known as People v. Philips—has become a popular object of study.9 9.See Walsh, supra note 1; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410–12 (1990).Show More For those who believe that the Federal Constitution’s Free Exercise Clause requires similar exemptions, Father Kohlmann’s case is evidence that early state practices were consonant with a pro-exemption interpretation of the First Amendment.10 10.Walsh, supra note 1, at 2, 95; McConnell, supra note 9, at 1410–12.Show More Recent scholarship calls the case “the first constitutional victory for religious freedom,” and argues that this lower state court decision belongs “at the historical center of judicial and scholarly free exercise discourse.”11 11.Walsh, supra note 1, at 1–2.Show More That history, according to those in favor of exemptions, was characterized by an “Expansive Conception of Religious Freedom,” one that emerged in the context of a limited American government that stayed in its lane, out of the way of religion.12 12.McConnell, supra note 9, at 1436; see also infra Section II.A (summarizing the pro-exemption view of the historical record).Show More

But the story of Father Kohlmann’s Scylla and Charybdis, and of this rare13 13.McConnell notes that there was little litigation over early religion clauses in either the state or Federal Constitutions. See McConnell, supra note 9, at 1503.Show More early litigation, central to the historical case for free exercise exemptions, has been read in isolation. A fuller assessment of the nature of the religious freedom that New York recognized in 1813 requires considering not only Father Kohlmann’s exemption but also the laws that his church was subject to at the time: onerous and invasive state regulations from which no exemption was sought or given. In 1813, St. Peter’s Church, like others in New York, was governed by a board of trustees.14 14.SeeWalsh, supra note 1, at 21.Show More These lay members of the church were vested with power from the state and controlled church property and decision making.15 15.See Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States, 1784–1932, at 53–54 (1933).Show More As the earliest Catholic Church in New York City, St. Peter’s had elected to incorporate under state law in 1785, just one year after the state extended the power to incorporate to Catholic churches.16 16.See id. at 54.Show More In 1813, the same year that Father Kohlmann won his exemption, the state updated its corporate law governing religious institutions and placed the control of church property, minister salaries, “rules and orders for managing the temporal affairs” of the church, and even the power to break ground in cemeteries firmly in the hands of the majority of lay trustees.17 17.See An Act to Provide for the Incorporation of Religious Societies, ch. 60, §§ 3–4, 8, 2 N.Y. Sess. Laws 212, 214–15, 217 (1813).Show More

In light of the requirements of New York’s corporate law, the Catholic Church which Father Kohlmann led was not only his to control. As Walsh points out, while the district attorney sought to drop the prosecution, it was the church’s lay trustees, not its priest, who insisted that the case be brought to trial, hoping to publicly secure the priest-penitent privilege in New York.18 18.SeeWalsh, supra note 1, at 21.Show More Contrary to Catholic ideology, then, St. Peter’s temporal property and direction were held by the church’s lay trustees, backed and governed by the state’s corporate laws.19 19.See Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 347–50 (2014) (documenting the disruptive quality of disestablishment corporate law for Catholicism in America).Show More These legal mechanisms controlling religious institutions in New York were typical of regulations across the country, most of them passed during the era that Sarah Gordon calls the “First Disestablishment.”20 20.Id. at 307, 311–12. Gordon dates the First Disestablishment as occurring between 1786 and 1833. Id. at 310.Show More Sounding in corporate law, these regulations restricted church property, interfered with internal church governance, and shaped what “religious freedom” meant in New York and in the early United States.21 21.Id. at 321–24.Show More Yet this history has thus far been largely ignored, both by those championing People v. Philips as a high watermark of religious freedom and, more generally, in the fierce debate over the history of the Free Exercise Clause.22 22.See infra Section II.D.Show More This Note refracts that debate through the lens of disestablishment regulation of religious institutions. In doing so, it posits that state interventions into religion during the First Disestablishment undermine the historical case for religious exemptions.

It is important to precisely identify the constitutional issue at play, one that remains hotly contested some 200 years after Father Kohlmann took confession. The question is this: Where a neutral, generally applicable law imposes an incidental burden on an individual’s free exercise of religion, does the Constitution mandate an exemption?23 23.This framing of the issue reflects the Supreme Court’s most recent significant re-appraisal. See Emp. Div. v. Smith, 494 U.S. 872, 883–89 (1990).Show More The center of the exemptions debate thus turns on the standard of judicial review applicable to incidental burdens on religion.24 24.See Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J.L. & Religion 139, 141–42 (2009).Show More Must the government offer merely some form of rational basis to defend a generally applicable law against a claim of exemption, or does the government need to demonstrate that it has a compelling interest and has narrowly tailored the statute at issue?25 25.Compare Smith, 494 U.S. at 879 (asserting that the right to free exercise does not reach a “valid and neutral law of general applicability”), with id.at 894–95 (O’Connor, J., concurring in judgment) (citing precedent that requires the government to justify a substantial burden on free exercise with a “compelling state interest and by means narrowly tailored to achieve that interest”).Show More Those in favor of exemptions argue that the government must do the latter in order to impose incidental burdens on religious free exercise.26 26.See, e.g., Laycock, supra note 24, at 151.Show More Those opposed to exemptions contend that no such showing is required and that neutral and generally applicable laws do not trigger heightened review under the Free Exercise Clause.27 27.See, e.g., Smith, 494 U.S. at 879 (holding that heightened review was not required for a neutral, generally applicable law that imposed an incidental burden on the free exercise of religion); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 936–40 (1992) (arguing that the original understanding and practice under the Free Exercise Clause provides no support for a right to regulatory exemptions).Show More

Since the Supreme Court first encountered the issue of religious exemptions in 1878,28 28.SeeReynolds v. United States, 98 U.S. 145, 166 (1878).Show More the doctrine has evolved between these positions. In contrast to the Court’s Establishment Clause jurisprudence,29 29.Recent Establishment Clause jurisprudence has featured various forms of historical analysis as part of the Court’s decision making. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019) (“The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8–14 (1947) (tracing disestablishment history beginning with immigration from Europe); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–62 (1995) (Thomas, J., concurring) (contextualizing Madison’s Memorial and Remonstrance Against Religious Assessments to argue that the Establishment Clause does not require the government to exclude religious adherents from generally available government subsidies); id. at 868–72 (Souter, J., dissenting) (denying Justice Thomas’ characterization of Madison’s letter).Show More the Court has often ruled on free exercise exemption claims without reference to the history of the First Amendment.30 30.See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1794–95 (2006).Show More However, in the aftermath of Employment Division v. Smith—one of the Court’s most significant and least historically inflected decisions on the issue—a vibrant scholarly debate developed around the history of the Free Exercise Clause, with academics interpreting Founding-era historical sources in order to support their preferred interpretation of the First Amendment.31 31.See infra Part II.Show More Faced with an ambiguous constitutional provision and little legislative history, scholars and Supreme Court Justices have turned to persuasive authority in an attempt to determine whether the Free Exercise Clause at the time of the Founding accorded with, required, or ran against, constitutionally compelled exemptions for religion.

The sources of historical authority relied on in the exemptions debate are numerous, yet recent research on disestablishment regulation of religious institutions has hitherto been ignored. Gordon’s intervention—analyzing state regulation of religious institutions as states removed government support for the church following ratification—casts doubt on two of the premises undergirding the historical case for religious exemptions. Those in favor of constitutionally compelled religious exemptions argue that (1) the period after ratification was marked by an “expansive conception of religious freedom” consonant with constitutionally required exemptions for religious free exercise and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.32 32.See, e.g., McConnell, supra note 9, at 1415, 1436–49 (advancing both of these positions).Show More The history of disestablishment regulations complicates the first of these arguments because, as Gordon argues, religious freedom during disestablishment was sought through government regulation of the church, not through the exemption of religious institutions from the law.33 33.See infra Part III.Show More The proposition that early American government was “limited” is even more seriously undermined by the history of disestablishment, which demonstrates that early state government relations with the church were characterized by invasive state oversight, especially through corporate laws regulating private property and lay governance.34 34.Id.Show More

This limited intervention does not add to Gordon’s impressive recent work on disestablishment history. Instead, this Note draws out the full significance of that history, by showing how disestablishment regulation unsettles the free exercise exemption debate. Gordon framed her intervention in terms of the relationship between religious institutions and individual conscience.35 35.See Gordon, supra note 19, at 311 (“This first system of disestablishment imposed discipline on religious institutions . . . based on concerns for individual conscience and lay control.”).Show More Yet the story that she uncovered—of religious liberty sought in and through state regulation—is also powerful evidence of the nature of the Free Exercise Clause after ratification. A full account of the history matters for two reasons. On the one hand, disestablishment regulations of religious institutions bear on how we think about the rights of religious individuals and institutions.36 36.See, e.g., Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 64 (4th ed. 2016) (a leading textbook on the subject).Show More On the other, this history may well shape the Supreme Court’s future free exercise jurisprudence. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence,37 37.See supra note 29 and accompanying text.Show More and the addition of Justices committed to constitutional interpretation centered on historical meaning,38 38.There is good reason to believe that Justices Gorsuch, Kavanaugh, and Barrett are open to, if not outright supporters of, historical analysis as a supplement to constitutional interpretation. SeeNeil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905, 906 (2016) (arguing that judges should seek to apply the law by looking to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be”); Tucker Higgins, Read Brett Kavanaugh’s Full Opening Remarks in his Supreme Court Confirmation Hearing, CNBC (Sept. 4, 2018), https://www.cnbc.com/2018/09/04/read-brett-kavanaughs-full-rem­arks-to-the-senate-judiciary-committee.html [https://perma.cc/6QRM-H8K2] (“A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”); Kanter v. Barr, 919 F.3d 437, 453–65 (7th Cir. 2019) (Barrett, J., dissenting) (performing an in-depth historical analysis to conclude that “[h]istory does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” but “it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous”).Show More indicate that the history of free exercise during the Founding era may well prove decisive the next time that the Court considers the issue of religious exemptions.39 39.The Supreme Court has granted certiorari and received merits briefs on the question of whether to overrule Smith. As of this Note’s writing, the Court’s opinion has not been released. Petition for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123); Brief for Petitioners at 37, Fulton, 140 S. Ct. 1104 (No. 19-123); Brief for City Respondents at 47, Fulton, 140 S. Ct. 1104 (No. 19-123); see also Micah Schwartzman, Richard Schragger, & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/­2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/42ED-WR­NT] (discussing the new conservative majority’s likely path in expanding free exercise rights). And four of the Court’s conservative Justices have signaled an intent to reverse Smith. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (signaling an intent to “revisit” Smith); Howard Gillman & Erwin Chermerinsky, The Weaponization of the Free Exercise Clause, Atlantic, (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/3GJZ-EEVN] (arguing that “the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith”); Eugene Volokh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Volokh Conspiracy (Jan. 1, 2019), https://reason.com/2019/01/22/will-the-court-read-the-free-exercise-cl/ [https://perma.cc/7LDL-W788] (observing that the statement denying certiorari in Bremerton suggested the four Justices’ willingness to overrule Smith and that Justice Breyer had echoed this sentiment in City of Boerne v. Flores, 521 U.S. 507 (1997)).Show More

The first Part of this Note summarizes the three major phases of free exercise doctrine in the Supreme Court, with particular attention to the Court’s irregular engagement with historical evidence. Second, the extant scholarship on the history of free exercise is summarized, along with its influence in the Supreme Court. The Note’s third Part considers recent research on early state regulations applicable to religious institutions during the First Disestablishment. This Part shows how disestablishment history qualifies claims about expansive religious freedom and “limited” government during the Founding era. This Part also considers three objections to the use of disestablishment history to interpret the meaning of the Constitution’s Free Exercise Clause. The Note concludes by reflecting on the importance of the exemptions issue during the Founding era and today, the stakes of historical analysis for the Supreme Court’s Religion Clauses jurisprudence, and the potential for a historically inflected reappraisal of Free Exercise Clause doctrine.

Vagueness Attacks on Searches and Seizures

Introduction

The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect to many low-level crimes. Those crimes are beyond the reach of the vagueness doctrine because they rarely, if ever, serve as the basis for charges in a criminal case that is seriously litigated.1 1.See infra Part II.Show More It is not that these low-level crimes have no use. Police use them all the time to justify stops and arrests, which can lead to searches that uncover evidence of more serious crimes. But when charges are brought for the more serious offenses, vagueness attacks have not been allowed when aimed at the low-level crimes on which the searches and seizures were predicated.2 2.See Michigan v. DeFillippo, 443 U.S. 31, 40 (1979).Show More

The thinking has been that an officer does not violate the Fourth Amendment when making a good-faith search or seizure, supported by adequate individualized suspicion, for a suspected violation of a low-level crime not yet judicially invalidated at the time of arrest. The inquiry is primarily factual in the sense that it concerns only the information available to the officer at the time of arrest. That is, the arresting officer is not expected to speculate or anticipate that the law will be struck down in the future. If the fact of invalidation did not occur before the arrest, it cannot be used to undermine it.3 3.See id. at 37–38.Show More

This rationale has obvious appeal. It makes sense not to expect officers to make legal determinations about the constitutional validity of a law before enforcing it; that task would seem better suited for judges. But application of the rule comes at a significant cost. Many of the low-level offenses used to justify stops and arrests perpetually evade judicial review.

Consider the following scenario: An officer arrests an individual pursuant to a city loitering ordinance that makes it unlawful for a person to refuse to identify himself at an officer’s request. The officer conducts a search incident to arrest, which reveals a gun. The individual is later charged with being a felon in possession of a firearm. If the defendant were to move to suppress the gun on the ground that it was discovered during a search predicated on an ordinance that is unconstitutionally vague, the court would deny the motion without ever addressing the vagueness question; the court would conclude that it need not reach that question because the officer was entitled to rely on the ordinance, which had not been invalidated at the time of arrest. That conclusion leaves the low-level crime just as it was—unreviewed and available for future use by police. The same sequence can and does occur repeatedly, insulating low-level crimes from vagueness challenges.

This Article explores that problem and argues that a solution is hiding in plain sight. It challenges the notion that a defendant may not successfully lodge vagueness attacks on searches and seizures in light of two Supreme Court decisions decided during the same Term—Johnson v. United States4 4.576 U.S. 591 (2015).Show More and Heien v. North Carolina.5 5.574 U.S. 54 (2014).Show More As I will explain, the two cases, especially Heien, lay the groundwork for solving the insulation problem just described.

The defect in many vague statutes is that they are so open-ended that they effectively allow the police to observe conduct, define the content of the crime to cover it, and then make an arrest based on probable cause that the arrestee committed the newly invented crime. That violates due process to the extent it permits officers to enforce a criminal statute in a way that is unexpected and indefensible in light of the text of the law being enforced and any relevant legal sources that bear on that text’s interpretation.6 6.See infra Section I.A.Show More

The Supreme Court’s decision in Heien gives officers enforcing indefinite laws some leeway when applying them. Their interpretations of the laws may be mistaken so long as they are objectively reasonable. This inquiry is purely legal or analytical. The government must be able to point to something in the text of the law or other relevant sources that affirmatively supports the officer’s interpretation; it may not simply note the absence of a judicial decision foreclosing the officer’s view of the law. As Justice Kagan explained in her concurrence in Heien, the government must show that “a reasonable judge could [have] agree[d] with the officer’s view” in light of the relevant legal sources.7 7.Heien, 574 U.S. at 70 (Kagan, J., concurring).Show More

It follows that a mistaken interpretation is unreasonable—and therefore a Fourth Amendment violation—when no reasonable judge could have adopted it in light of the statutory text and available legal materials bearing on the meaning of that text. That is essentially the same claim made when a defendant argues that the law under which he was arrested is unconstitutionally vague—that the law was so open-ended that it permitted an officer to interpret and apply it in a way that was unpredictable and indefensible in light of the law that had been stated at the time. In this way, the framework of Heien opens the door to vagueness attacks on searches and seizures.

The Article proceeds in four Parts. Part I sets the table by describing the content of the vagueness doctrine, the proliferation of low-level crimes that followed the invalidation of vagrancy statutes on vagueness grounds, and the longstanding rule that vagueness attacks may not be lodged successfully against laws serving merely as a basis for arrest. Part II explores the problem that longstanding rule has created, namely that countless low-level offenses are effectively insulated from judicial review on the vagueness question. Part III is the heart of the Article. It argues that Johnson and Heien provide the analytical architecture for successful vagueness attacks on searches and seizures in the context of a motion to suppress. Part IV then identifies potential obstacles to that theory—the prospect of narrowing constructions that cure otherwise vague statutes and the good-faith exception to the exclusionary rule—but argues that they can ultimately be overcome.

The result is a coherent and defensible theory for raising vagueness challenges in the context of a motion to suppress. Again, the primary benefit of this theory is to ensure that even low-level crimes are reviewed for constitutional vagueness. But the theory is broadly applicable. It can be used for vagueness attacks on any crime, low-level or not, on which a search or seizure is premised.

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