Chiafalo v. Washington Did Not Resolve The Precise Status of Electors

The Court studiously avoided addressing a central element of the Electors' Argument


In May, the Supreme Court heard oral argument in the two faithless electors cases,  Chiafalo v. Washington and  Colorado Department of State v. Baca. In both cases, the parties disputed the precise status of electors. The states contended that electors were "subordinate state officers." The electors countered that they held "public Trust[s] under the United States" (the language used in the Religious Test Clause). Seth Barrett Tillman and I wrote a pair of posts. We agreed with the electors: these positions were best understood a "public Trust[s] under the United States."

Today, the Court decided the two cases. (I have finished editing Chiafalo for the Barnett/Blackman supplement; email me if you'd like a copy: josh-at-joshblackman-dot-com). The Court studiously avoided this unresolved question. There is not a word about how to characterize electors. This move was prudent. The Court should not have resolved any unnecessary constitutional questions to decide this case.

Indeed, I think Justice Kagan avoided another constitutional question that bears on our scholarship. In Part II-A, she wrote:

The Constitution is barebones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives (except that the State may not appoint members of the Federal Government).

The parenthetical is a reference to the Electoral Incompatibility Clause. It provides:

"no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

The operative language is "Office of Trust or Profit under the United States." It would have been simple for Kagan to have written "except that the State may not appoint officers of the Federal Government." After all, the Electoral Incompatibility Clause uses the phrase "office." But she didn't. She used the word "members." She is–in  my view–noncommittal about the meaning of the phrase "Office of Trust or Profit under the United States" in the Electoral Incompatibility Clause.

Why? Well, the Court will soon have on the docket several petitions in the Foreign Emoluments Clauses litigation. That provision uses very similar language:

"no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

In our view, the phrase "Office . . . under the United States" refers to appointed positions in all three branches, but not elected officials. Here, Kagan wisely used the general phrase "members." It is opaque enough, and leaves the issue for future disposition.

NEXT: The Faithless Electors Decision Doesn't End the Possibility of Constitutional Crisis

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  1. The court whiffed here, and badly…

    “They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.”

    By allowing a state to direct the votes of the electors, SCOTUS has basically ignored this part of federalist 68.

    1. I’m not an originalist, but I am interested in how the originalists on the Court square originalism with this vision of the EC.

      I hear Thomas also has a concurrence. Always interesting to see what windmills he’s tilting at.

      Won’t have time to skim the opinion until after work, though.

    2. “SCOTUS has basically ignored this part of federalist 68”

      The Federalist Papers were just propaganda for ratification. They are only the writers subjective opinion, geared at convincing legislators to ratify, not a subjective analysis.

      The less courts rely on op-eds, no matter how old or who wrote them, the better.

      1. Right. Indeed, it’s arguable that some of the anti-federalist papers/letters/speeches ultimately had better interpretations of the document they were opposing.

      2. Go read the notes on the Constitution which were kept by the constitutional convention. This result today was exactly what they DIDNT want when they drafted the constitution.

  2. Aw come on.

    Is there anyone, anyone who doubts that the emoluments prohibition refers to elected officials? Really. Anyone believe that the Founders wanted the President or members of Congress to be essentially bribed?

    Sometimes a cigar is just a cigar.

    1. Considering the actions of Washington and other early presidents while in office, which would fall afoul of your interpretation of the emoluments prohibition, but for which there wasn’t even a hint of apprehension at the time, I’d say that no serious person could believe the original understanding was the extreme interpretation of the emoluments prohibition that you seem to wish to push.

      Anything Washington or Adams or Jefferson did while in office can’t possibly be understood as a violation of the emoluments prohibition as the founders saw it, not just because they were themselves founders, but because none of the other founders raised any objection under this clause. Considering Washington himself received and accepted personal gifts from foreign governments…

      The solution for elected officials is ‘vote the bum out’.

  3. “It would have been simple for Kagan to have written “except that the State may not appoint officers of the Federal Government.”

    The best thing would have been to write “Person holding any Office of Trust or Profit under the United States” instead of “members of the Federal Government”.

    No reason to paraphrase at all.

  4. I’m confused why lawyers think it’s best for the supreme court to decide as little as possible (thereby increasing confusion about what the law is), rather than just stating what the law means, so everybody knows going forward.

  5. ROFL. I love it when the “originalists” have to deal with something they don’t like in the constitution. Then text and common sense and historical research goes out the window. They are revealed as simple conservative partisans, naked as any emperor.

    Don’t worry Josh. There will be another issue along in a week or so and you can stop squirming.

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