The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.