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Congressional approval of interstate*compacts is only necessary if the compact would cause the states to encroach on federal power. As previously noted, the feds have no role in federal elections.
That's the spin on the matter from the folks pushing the compact, but it ignores a crucial point, namely the role of the federal government (via the House for President and the Senate for Vice President) of selecting candidates for POTUS and VPOTUS when no candidate receives a majority of electoral college votes. By creating a compact whereby there can never be a scenario where someone does not receive less than a majority of electoral college votes, this compact would take away power of the federal government (namely the right of Congress to choose POTUS and VPOTUS in the event where no candidate receives a majority of electoral college votes). That's a pretty significant encroachment on the right of Congress under the Constitution, even if it is a right that has been exercised less than a handful of times in our country's history.
I also note that there are more recent cases than the one from 1893 that support my position.
And, yes, the federal government--even apart from the above--has a role in federal elections, to include the safe harbor deadline imposed by Congress in which election results have to be reported to the federal government (this was an issue in Bush v. Gore) and including restraints placed on how states conduct elections (both under the Constitution directly and under congressional legislation such as the Voting Rights Act). The federal government does not run elections for federal office (this much is true), but to claim that the federal government has no role in federal elections is not correct.
Last edited by prospectheightsresident; 10-20-2020 at 08:31 AM..
That's the spin on the matter from the folks pushing the compact, but it ignores a crucial point, namely the role of the federal government (via the House for President and the Senate for Vice President) of selecting candidates for POTUS and VPOTUS when no candidate receives a majority of electoral college votes. By creating a compact whereby there can never be a scenario where someone does not receive less than a majority of electoral college votes, this compact would take away power of the federal government (namely the right of Congress to choose POTUS and VPOTUS in the event where no candidate receives a majority of electoral college votes). That's a pretty significant encroachment on the right of Congress under the Constitution, even if it is a right that has been exercised less than a handful of times in our country's history.
I also note that there are more recent cases than the one from 1893 that support my position.
And, yes, the federal government--even apart from the above--has a role in federal elections, to include the safe harbor deadline imposed by Congress in which election results have to be reported to the federal government (this was an issue in Bush v. Gore) and including restraints placed on how states conduct elections (both under the Constitution directly and under congressional legislation such as the Voting Rights Act). The federal government does not run elections for federal office (this much is true), but to claim that the federal government has no role in federal elections is not correct.
No, that's not "spin" by people pushing the compact. They are "facts" laid out by the nonpartisan Library of Congress.The role of Congress in selecting POTUS & VP is not absolute, that's because the role is also conditional & discretionary, and rarely used.
Can you cite the more recent cases (plural) that support your position?
Quote:
it may not, however, under this clause, provide different qualifications for electors than those provided by the states.24
No, that's not "spin" by people pushing the compact. They are "facts" laid out by the nonpartisan Library of Congress.The role of Congress in selecting POTUS & VP is not absolute, that's because the role is also conditional & discretionary, and rarely used.
Can you cite the more recent cases (plural) that support your position?
No, it's not a fact. And the issue hasn't been ligitigated much, which I've mentioned previously. All the LOC did was provide what it thinks could happen based on a 100+ year old Supreme Court case. Other legal scholars have opined differently.
It is irrelevant that the role of Congress in selecitng POTUS and VPOTUS is not absolute. And, indeed, few federal powers are absolute and the federal government is free to empower states to enter into areas that it has legal supremacy over But that doesn't mean that Congress doesn't have to assent to the certain abrogation of its power. But it is still a role that they have under certain circumstances under our Constitution. This proposed compact would usurp any possibility of this role of Congress being fulfilled, so it directly encroaches on federal power over elections.
Here is another report from the Congressional Research Service, another nonpartisan entity of Congress, which runs through various arguments (including legal arguments) for and against the interstate popular vote compact.
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While the Supreme Court’s case law interpreting the Compact Clause is centrally concerned with vertical federalism concerns (i.e., the balance of power between the state and federal governments), the Court has recognized a potential secondary rationale suggested for the Compact Clause: to preserve the horizontal balance of powers among the various states. And horizontal federalism concerns could very well be implicated by the Compact Clause, as the provision appears to have been included in the Constitution out of concern both for the supremacy of the federal government and unity among the various states. Whether the NPV compact threatens the powers of nonconsenting states has been the subject of much debate among academics. Those in support of the initiative have contended that the nonconsenting states do not lose any power as a result of the NPV. According to this line of argumentation, even under the NPV, all states would retain their right to select the electors of their choosing, as nonmember state electors would still be counted in the electoral vote. Others, however, have pointed to the underlying premise of the NPV—to enhance the political power of more populous states in presidential elections—as evidence that the initiative diminishes the power of nonconsenting states. In other words, while noncompacting states would still retain the power to appoint electors, the influence that comes with that power would arguably be diminished because a state’s role in the national election would be defined by its percentage of the popular vote and not by its percentage of electors, warranting congressional interest in approving a compact that effectuated such a change in national elections. Ultimately, however, whether the NPV actually threatens the power of nonconsenting states is a debate that remains active within academia but would likely be the source of considerable litigation if the initiative ever became effective.
The Congressional Research Service cites cases to include Texas vs. New Mexico and Colorado (2018) and United States Steel Corp vs. Multistate Tax Commission (1978).
This is an interesting footnote in the article on the potential impact of the latter case:
Quote:
It should be noted, however, that the Supreme Court in Multi-State Tax Commission did agree that the “pertinent inquiry [with respect to the Compact Clause] is one of potential, rather than actual, impact on federal supremacy.†Multi-State Tax Comm’n, 434 U.S. at 472. Arguably, the potential for an erosion of the House of Representatives’s authority necessitates congressional consent
Here is some scholarly research on how the popular vote compact could run afoul of Congress' role in picking POTUS and VPOTUS in a case where no candidate receives a majority of electoral college votes: https://ideaexchange.uakron.edu/cgi/...akronlawreview
No, it's not a fact. And the issue hasn't been ligitigated much, which I've mentioned previously. All the LOC did was provide what it thinks could happen based on a 100+ year old Supreme Court case. Other legal scholars have opined differently.
It is irrelevant that the role of Congress in selecitng POTUS and VPOTUS is not absolute. And, indeed, few federal powers are absolute and the federal government is free to empower states to enter into areas that it has legal supremacy over But that doesn't mean that Congress doesn't have to assent to the certain abrogation of its power. But it is still a role that they have under certain circumstances under our Constitution. This proposed compact would usurp any possibility of this role of Congress being fulfilled, so it directly encroaches on federal power over elections.
Here is another report from the Congressional Research Service, another nonpartisan entity of Congress, which runs through various arguments (including legal arguments) for and against the interstate popular vote compact.
The Congressional Research Service cites cases to include Texas vs. New Mexico and Colorado (2018) and United States Steel Corp vs. Multistate Tax Commission (1978).
This is an interesting footnote in the article on the potential impact of the latter case:
Here is some scholarly research on how the popular vote compact could run afoul of Congress' role in picking POTUS and VPOTUS in a case where no candidate receives a majority of electoral college votes: https://ideaexchange.uakron.edu/cgi/...akronlawreview
First, thanks for the links, there's a lot to read there, don't have time now.
If the compact takes effect, the conditions you rely on for its encroachment on federal prerogative don't arise, because by definition they have 170 or more votes, and the issue is moot, therefore no abrogation of federal power.
The claim that the NPVC enhances the power of the populous states is incorrect. It enhances the power of any state that joins, populous or otherwise.
No doubt if it takes effect there'll be lots of litigation.
Has anyone mentioned the stonewalling by Senator McConnell of Obama's lower court picks only for him to pack in Federalist Society choices during Trump's term?
First, thanks for the links, there's a lot to read there, don't have time now.
If the compact takes effect, the conditions you rely on for its encroachment on federal prerogative don't arise, because by definition they have 170 or more votes, and the issue is moot, therefore no abrogation of federal power.
The claim that the NPVC enhances the power of the populous states is incorrect. It enhances the power of any state that joins, populous or otherwise.
No doubt if it takes effect there'll be lots of litigation.
This is a fun conversation, by the way. I enjoy debating these issues
I act like I'm speaking authoritatively on this point, but really I'm just giving my best legal estimate based on how I intepret things and on how I think the Supreme Court would rule with its current (and soon to be makeup)
That aside, I see the aborgation issue as still being present precisely for the reasons I listed before. The issue would be moot precisely due to the compact. But it's the compact that caused the issue to be moot and, thus, encroaches on the right of Congress to decide elections where no one receives a majority of the electoral college votes. Now, as I mentioned before, Congress can decide to allow states to do so, but that's another story.
As to the popular vote compact enhancement argument, even if it enhanced the power of all states that join, it enhances the power of the more populous states at a significantly higher level than the power of less populated states. It's not an equal playing field. Granted, it's not an equal playing field today--where states with very small populations play an outsized role in electoral college politics relative to their population--but that's what the Constitution sets up and permits. I argue that to get to the other end via compact requires the approval of Congress.
This is a fun conversation, by the way. I enjoy debating these issues
I act like I'm speaking authoritatively on this point, but really I'm just giving my best legal estimate based on how I intepret things and on how I think the Supreme Court would rule with its current (and soon to be makeup)
That aside, I see the aborgation issue as still being present precisely for the reasons I listed before. The issue would be moot precisely due to the compact. But it's the compact that caused the issue to be moot and, thus, encroaches on the right of Congress to decide elections where no one receives a majority of the electoral college votes. Now, as I mentioned before, Congress can decide to allow states to do so, but that's another story.
As to the popular vote compact enhancement argument, even if it enhanced the power of all states that join, it enhances the power of the more populous states at a significantly higher level than the power of less populated states. It's not an equal playing field. Granted, it's not an equal playing field today--where states with very small populations play an outsized role in electoral college politics relative to their population--but that's what the Constitution sets up and permits. I argue that to get to the other end via compact requires the approval of Congress.
I too enjoy these conversations, but will have less time for them in the future.
I'm an immigrant with no US education background, am not a lawyer, but have successfully sued a county government at the state's highest court, so I understand that these issues often turn on very narrow points, and appellate courts generally prefer to take the smallest step they need to take to resolve an issue, rather than making big sweeping decisions.
I don't understand why you say more populous states will accrue more power than less populous ones. Each still has the same number of electors as previously. All that's changed is who the Electors may vote for.
If Congress wanted to step in and influence they would need to propose a constitutional amendment rather than legislation. That would take years, and in my view wouldn't get the necessary state legislature votes.
Quote:
Article II Section 1 Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Then the other side packs the courts even more to 'restore balance'?
Although President Trump pointed out that 29 times a justice position came open during an election year or lame duck period, only three incidents have been since WWII.
2016 Republicans wait 14 months to have hearings on Scalia's replacement until Obama's term is over
1968 Republicans wait over a year on Chief Justice Warren's retirement letter until Richard Nixon is elected President and can appoint new CJ Berger
1956 Minton retires weeks before Eisenhowers re-election. A new justice is appointed the next day with no complaint.
There needs to be some rules about the appointment process, and they need to be passed when it is not clear who will benefit.
Packing the court is a short term solution and simply means the other party will want to do the same when it is their turn.
Judges are non-partisan. Several judges appointed by Republican Presidents have proven to be surprisingly liberal. There are always going to be people unhappy with judicial decisions.
Although President Trump pointed out that 29 times a justice position came open during an election year or lame duck period, only three incidents have been since WWII.
2016 Republicans wait 14 months to have hearings on Scalia's replacement until Obama's term is over
1968 Republicans wait over a year on Chief Justice Warren's retirement letter until Richard Nixon is elected President and can appoint new CJ Berger
1956 Minton retires weeks before Eisenhowers re-election. A new justice is appointed the next day with no complaint.
There needs to be some rules about the appointment process, and they need to be passed when it is not clear who will benefit.
Packing the court is a short term solution and simply means the other party will want to do the same when it is their turn.
Judges are non-partisan. Several judges appointed by Republican Presidents have proven to be surprisingly liberal. There are always going to be people unhappy with judicial decisions.
Judges and Justices are supposed to be non-partisan, and on non-partisan issues they generally are. Once an issue falls into the realm of partisan politics all bets are off........Otherwise why the fuss about appointments?
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