Muller on The President of the Senate, the Original Public Meaning of the Twelve Amendent, and the Electoral Count Reform Act @derektmuller @NDLaw @CaseWRsrvLRev

Derek T. Muller, Notre Dame Law School, has published The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act at 73 Case Western Reserve Law Review 1023 (2023). Here is the abstract.

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes? This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors. Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power. This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act's decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

Download the article from SSRN at the link.

Steilen on How to Think Constitutionally About Prerogative @MJSteilen

Matthew J. Steilen, State University of New York at Buffalo, Law School, is publishing How to Think Constitutionally About Prerogative: A Study of Early American Usage in the Buffalo Law Review. Here is the abstract.

This Article challenges the view of "prerogative" as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke's account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers and legislative debates, this Article argues that early Americans almost never used "prerogative" as Locke defined it. Instead, the early American understanding of "prerogative" appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King's prerogative. The primary connotations of "prerogative" for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this innovative view, the Article then proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law, not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as "defeasible" in the sense that they may be regulated by statute and judicial decision, within limits the Article describes. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act.

Download the article from SSRN at the link.

Natural Born Citizens and the U.S. Constitution

Mary Brigid McManamon, Widener University School of Law, is publishing The Natural Born Citizen Clause as Originally Understood in the Catholic University Law Review. Here is the abstract.

Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there have been candidates that “pushed the envelope” on this question in many elections over the last 50 years, and no article in the last century has correctly explained the common law definition. This article is timely because there will again be such a candidate in 2016 if Sen. Ted Cruz decides to run.

Download the full text from SSRN at the link.