Original Meaning of the Disqualification Clause

Steven Portnoy at ABC:

In 2024, the originalists on the Supreme Court will likely seek to determine whether the ratifiers could have had it in mind 158 years ago that Sec. 3 might not only be applied to the "late insurrection," as the House-passed version originally had it, but also to any other rebellion that might later take place.

But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds.

"This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.

It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

Debate on the Pardon Power

DW Buffa at Brookings, 2018:

On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a president who would try to change our form of government. The president, argued Mason,

“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”

Some of the most famous men in American history were there that day as delegates to the Virginia convention. Patrick Henry, afraid that a national government would destroy the states, was leading the fight to reject the Constitution. John Marshall, who, as Chief Justice of the Supreme Court, would do more than anyone to make the Constitution the foundation for the kind of strong national government Henry feared, was one of the leaders in the fight to ratify it. But there was no one—no one in Virginia, nor in the country—with a deeper understanding of the Constitution and what it meant than James Madison.

Madison understood immediately the force of Mason’s objection, but he had a response—a response in which he described limitations on presidential power that, to our great misfortune, have for too long been forgotten. Was there a danger in giving the president the power to pardon? “Yes,” replied Madison, but there was a remedy for the danger in the Constitution as drafted.

“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

More Milley: Americans in Uniform Are Willing to Die for a Document

In Federalist 49, Madison wrote of  the" veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability."  At The Jack Miller Center, James Ceaser writes:

The idea of a written constitution is coupled in The Federalist with another important contribution about how the people should regard the document. What kind of thing is a written constitution? From a legal standpoint, a written constitution is higher law. But is it merely law, or does it perform a further function and have a different status? Is the Constitution something to be venerated—something that endows government with respect and contributes to its stability and endurance— and that provides a bond that connects the people to the nation? 

As with the idea of a written constitution, many today can easily overlook the originality of this doctrine. But there is no logical connection between what are just words on a page and the veneration we apply to them. The idea of reverence for the Constitution was a creation of The Federalist.

General Milley:

 

Section Three

  Adam Liptak at NYT:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”

 The Sweep and Force of Section Three

University of Pennsylvania Law Review, Vol. 172, 2024
William Baude
University of Chicago - Law School
Michael Stokes Paulsen
University of St. Thomas School of Law

Date Written: August 9, 2023

Abstract

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

Keywords: Constitution, Fourteenth Amendment, Section Three, Insurrection, Rebellion

Suggested Citation: Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, 2024, Available at SSRN: https://ssrn.com/abstract=

Indictment of a Former President

 Trump is under indictment.  Austin Sarat:

The Constitution’s authors contemplated the arrest of a current or former president. At several points since the nation’s founding, our leaders have been called before the bar of justice.

Article I, Section 3 of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”Tench Coxe Public domain via Wikimedia Commons

In his 1788 defense of this constitutional provision, Alexander Hamilton noted that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice but not removed from office.

As a scholar with expertise in legal history and criminal law, I believe the punishment our nation’s founders envisioned for government leaders removed from office would also apply to those who left office in other ways.

Tench Coxe, a Pennsylvania delegate to the Continental Congress from 1788 to 1789, echoed Hamilton. He explained that while the Constitution’s speech or debate clause permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives, for he may be proceeded against like any other man in the ordinary course of law.”

In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. Though Coxe didn’t say it explicitly, I’d argue that it follows that if presidents can be charged with a crime while in office, once out of office, they can be held responsible like anyone else.

TikTok, Montana, and the Dormant Commerce Clause

 Montana has banned TikTok, which is suing.

119. The Commerce Clause of the U.S. Constitution grants Congress the power to regulate commerce with foreign Nations, and among the several States. U.S. Const. art. 1, § 8, cl. 3. While the Commerce Clause is framed by its text [as] an affirmative grant ofpower to Congress , the so-called Dormant component of the Clause has long been recognized as a self-executing limitation ofthe States to enact laws imposing substantial burdens on [interstate] commerce ." South-Central Timber Dev.,Inc. v.Wunnicke ,467 U.S.82 ,87 (1984).

 120. The TikTok Ban imposes substantial burdens on interstate commerce inviolation of the Commerce Clause and other structural provisions ofthe Constitution by prohibiting Plaintiff from operating TikTok in Montana and penalizing Plaintiff any time a user in Montana accesses TikTok or is offered the ability to access or download TikTok in the State . The TikTok Ban is not limited to Montana residents ; it applies to anyone in the State ,including those visiting or merely passing through for work.

121. Substantial burdens on interstate commerce generally result from inconsistent regulation ofactivities that are inherently national or require a uniform system of regulation. Bernstein v.Virgin Am.,Inc.,3 F.4th 1127, 1135 (9th Cir. 2021) (quoting Nat'lAss'n of Optometrists & Opticians v. Harris,682 F.3d 1144, 1148 (9th Cir.2012)).

122. Plaintiff's operation of TikTok ,an application used by over 150million users in the United States ,including in every State, is inherently national in scope and requires a uniform system of regulation, not one subject to the policy decisions offifty separate States.

 

 

The VP and the Counting of Electoral Votes

At AEI, Joseph Bessette and Gary Schmitt find no support for the view that the Vice President has unilateral constitutional authority to resolve electoral vote disputes.

Our analysis proceeds in four stages. First, we show that the framers viewed the Vice Presidency as a rather insignificant office and, thus, one unlikely to be given the constitutional power to decide presidential elections. Second, we show that the relevant constitutional language strongly suggests that Congress possesses the authority to legislate procedures to resolve electoral disputes. Third, we show that in the congressional debates of 1789 to 1805, every major alternative for locating the power to resolve electoral disputes – that it resides in Congress, in the state legislatures, or among the electors themselves when they meet in their states – was advanced except for one: that it resides in the office of the Vice Presidency. This silence, in our view, speaks volumes. Finally, we maintain that the principles and structure of the American constitutional order are inimical to allowing the discretion and will of a single individual (especially one who often has a personal stake in the outcome) to decide presidential elections. In brief, the history of the office, the text of the Constitution, founding-era debates, and the underlying logic of the Constitution do not support the view that the Vice President possesses unilateral constitutional authority to resolve electoral vote disputes.

Threats to Democracy

David Leonhardt at NYT identifies election denialism as one threat to American democracy.

“There is the possibility, for the first time in American history, that a legitimately elected president will not be able to take office,” said Yascha Mounk, a political scientist at Johns Hopkins University who studies democracy.

The second threat to democracy is chronic but also growing: The power to set government policy is becoming increasingly disconnected from public opinion.

The run of recent Supreme Court decisions — both sweeping and, according to polls, unpopular — highlight this disconnect. Although the Democratic Party has won the popular vote in seven of the past eight presidential elections, a Supreme Court dominated by Republican appointees seems poised to shape American politics for years, if not decades. And the court is only one of the means through which policy outcomes are becoming less closely tied to the popular will.

Two of the past four presidents have taken office despite losing the popular vote. Senators representing a majority of Americans are often unable to pass bills, partly because of the increasing use of the filibuster. Even the House, intended as the branch of the government that most reflects the popular will, does not always do so, because of the way districts are drawn.

“We are far and away the most countermajoritarian democracy in the world,” said Steven Levitsky, a professor of government at Harvard University and a co-author of the book “How Democracies Die,” with Daniel Ziblatt.

Disqualifying an Insurrectionist

 From CREW:

A New Mexico judge ordered Otero County Commissioner Couy Griffin be removed from office, effective immediately, ruling that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him under Section 3 of the 14th Amendment. This decision marks the first time since 1869 that a court has disqualified a public official under Section 3, and the first time that any court has ruled the events of January 6, 2021 an insurrection.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin, as an Otero County Commissioner since January 2019, took an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

“This is a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible,” said CREW President Noah Bookbinder. “This decision makes clear that any current or former public officials who took an oath to defend the U.S. Constitution and then participated in the January 6th insurrection can and will be removed and barred from government service for their actions.”

Under New Mexico law, any private citizen of the state may file a lawsuit to remove a disqualified county official from office. A group of New Mexico residents were represented in this case by Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman Boyd Hollander and Goldberg P.A, Dodd Law Office, LLC, and the Law Office of Amber Fayerberg, LLC, as well as by Cohen Milstein Sellers & Toll PLLC.

“Judge Mathew’s decision is fully supported by the facts and the law and justice achieves a needed measure of accountability,” said Freedman Boyd Hollander and Goldberg P.A Partner Joe Goldberg.

“The Court’s findings that Mr. Griffin engaged in repeated efforts to mobilize a mob and incite them to violence on January 6, 2021 amply support the Court’s conclusion that he is unqualified under the Fourteenth Amendment to hold public office,” said Daniel Small of Cohen Milstein Sellers & Toll PLLC.

An eyewitness to Griffin’s behavior testified that Griffin also took on a leadership position within the mob at the Capitol on January 6th. Videos of Griffin’s speeches en route to Washington, DC for the “Stop the Steal“ rally showed Griffin’s willingness to stop, by any means necessary, a Biden presidency. In the days after the attack, Griffin continued to defend the insurrection, boasted about his involvement, and suggested a possible repeat of it in the future. Following a federal indictment for his behavior, he was convicted of breaching and occupying restricted Capitol grounds.

“January 6, 2021 was a dark day in our history. The court’s ruling today is a historic moment for our country. Mr. Griffin’s removal and bar from holding office again is a step towards obtaining justice and restoring the rule of law,” said Dodd Law Office, LLC President Christopher Dodd.

“The Court’s decision to remove and bar Mr. Griffin from public office represents a crucial step toward restoring the rule of law in our country and protecting our democracy from future attack,” said the Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg.
Click here to read the court’s decision.

A Member of Congress Who Needs to Read our Textbook

 Many posts have dealt with myths and misinformation.

Lauren Boebert claimed, “The Constitution guarantees life— life, liberty, [and] the pursuit of happiness.”

The well known phrase is from the Declaration on Independence, not the Constitution. pic.twitter.com/NOHLmsGtYG

— PatriotTakes 🇺🇸 (@patriottakes) August 5, 2022

lauren boebert says she wants a biblical citizenship test in the US pic.twitter.com/64REbZyCEl

— Owen Morgan (Telltale) (@telltaleatheist) August 2, 2022

After stating “know your history,”Lauren Boebert claimed “there were Gatling guns” when the second amendment was written.

Fact check: The Gatling gun was invented in 1861, over 70 years after the Constitution was drafted. pic.twitter.com/Y0BHuO3yoi

— PatriotTakes 🇺🇸 (@patriottakes) June 26, 2022

Movement for a Constitutional Convention

There has not been a constitutional convention since the original in Philadelphia. A 2016 report from the Congressional Research Service discusses the process of calling a convention, as well as the questions and uncertainties surrounding that process. In the 1990s, the issue came up in the context of a balanced budget amendment.

Grace Panetta and Brent D. Griffiths at Business Insider:

"You take this grenade and you pull the pin, you've got a live piece of ammo in your hands," Santorum, a two-time GOP presidential candidate and former CNN commentator, explained in audio of his remarks obtained by the left-leaning watchdog group the Center for Media and Democracy and shared with Insider. "34 states — if every Republican legislator votes for this, we have a constitutional convention."

...

This isn't an exercise, either. State lawmakers are invited to huddle in Denver starting on Sunday to learn more about the inner workings of a possible constitutional convention at Academy of States 3.0, the third installment of a boot camp preparing state lawmakers "in anticipation of an imminent Article V Convention."

...

Some states have tried and tried — without result — to prompt a constitutional convention. They've together issued hundreds of pro-convention resolutions or calls over 200 years to reroute constitutional amendment powers away from Washington. What's new now is the ever-evolving power coupling of a corporation-backed ideological juggernaut led by ALEC, a nonprofit organization with close ties to large tobacco and drug companies, and a determined Republican Party increasingly dominating many of the nation's 50 statehouses.

...

The planks of the Convention of States' movement — such as term limits for federal bureaucrats in addition to members of Congress — stand to attract acolytes of Trumpism savoring the means to MAGA-fy the Constitution, and therefore, the nation.

In fact, it already has. Constitutional convention boosters include many of Trump's current and former allies, including conservative legal scholar John Eastman, Florida Gov. Ron DeSantis, and Fox News personalities like Sean Hannity and Mark Levin.

...

A new report by the Center for Media and Democracy first shared with Insider finds that Republicans would control at least 27 and up to 31 out of 50 delegations to a convention, based on delegate selection processes in applications passed thus far.

The Insurrectionist View of the Second Amendment

Contrary to dangerous claims from GOP colleagues, nowhere does the Constitution endorse armed resistance against our police and government.

I count at least seven times our founding document refutes and contradicts this absurd "insurrectionary theory” of the Second Amendment. pic.twitter.com/bGrFg15ZU1

— Rep. Jamie Raskin (@RepRaskin) July 27, 2022

Article IV, sec. 4: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Article III, sec. 3: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

Amendment XIV, sec. 4: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

Article I, sec. 8, clause 15 The Congress shall have Power * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Rep. Luria Opening Statement

Rep. Elaine Luria (D-VA) at the July 21 J6 hearing:

Article II of our Constitution requires that the President swear a very specific oath every four years.

Every President swears or affirms to ‘faithfully execute the Office of President of the United States’         and, to the best of their ability, ‘preserve, protect, and defend the Constitution of the United States.’

The President also assumes the Constitutional duty to ‘take care’ that our nation’s laws be ‘faithfully executed,’ and is the ‘Commander in Chief’ of our military.

Our hearings have shown the many ways in which President Trump tried to stop the peaceful transfer of power in the days leading up to January 6th.

With each step of his plan, he betrayed his oath of office and was derelict in his duty.


...
I served proudly for twenty years as an officer in the United States Navy.

Veterans of our armed forces know firsthand the leadership that is required in a time of crisis: urgent and decisive action that puts duty and country first.

But on January 6th, when lives and our democracy hung in the balance, President Trump refused to act because of his selfish desire to stay in power.

Scalia on the Second Amendment

The Uvalde massacre is a reminder that guns are now the leading cause of death among American children.

From Justice Scalia's majority opinion in DC v. Heller:

 Like most rights, the right secured by the SecondAmendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26 

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

True Faith

 Former RNC chair Mark Racicot at The Billings Gazette:

The Oath of Office taken by every member of the United States Senate and House of Representatives, as well as the president, requires those office holders to “solemnly swear that I will support and defend the Constitution of the United States against all enemies foreign and domestic [and] that I will bear true faith and allegiance to the same.” The Oath concludes with a solemn promise that “I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Bearing true faith means maintaining fidelity to the preservation of the union, fidelity to our fellow citizens, fidelity to a shared set of values and fidelity to the law and the Constitution. That transcendent fidelity or faithfulness to the Constitution is demonstrated by our continuing and unequivocal loyalty, first and above all else, to the United States of America, without interruption, without condition, without exception, without avoidance, without arrogance, without deceit, without connivance and without obfuscation.

The faithfulness referred to in the Oath of Office presumes not just faithfulness to the actual words of the Constitution, but faithfulness to its spirit as well. A spirit recognized and requited by humility, respect for others and the rights of others, honor, decency, integrity and self-discipline. Fidelity is the exact opposite of seeking power for its own sake or craving victory at any cost, each of which history has revealed time and time again to be a fool’s errand.

All of the above is to say that I have discovered no facts nor evidence, anywhere, of the “sabotage” or “persecution” or efforts to “destroy” the former president that serve as the basis for the accusations cited in the RNC Resolution and lodged against Representatives Cheney and Kinzinger. Quite the opposite, the evidence reveals two Republican members of the House of Representatives honorably performing their investigative duties and searching for the truth as members of a duly constituted investigative committee. In other words, they’re doing their job with fidelity and loyalty to the Constitution.

Vaccine Mandate for National Guard

Jordan Williams at The Hill:

An Oklahoma federal judge on Tuesday denied an attempt from the state to block the Department of Defense’s coronavirus vaccine mandate for National Guard members.

In a 29-page ruling, U.S. District Judge Stephen Friot denied a motion from Oklahoma Gov. Kevin Stitt (R) and Attorney General John O’Connor to preliminarily enjoin the mandate, saying the plaintiffs’ claims were without merit.

“The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same,” Friot wrote. “The claims asserted by the Governor and his co-plaintiffs are without merit.”

From the ruling:

The constitutional allocation of responsibility for Guard matters has been fleshed out by Congress. The beginning point, understandably relied upon by the defendants, is 32 U.S.C. § 110: “The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.” In turn, the Service Secretaries (as relevant here, the Secretary of the Army and the Secretary of the Air Force) are empowered to “prescribe such regulations as the Secretary considers necessary to carry out provisions of law relating to the reserve components under the Secretary’s jurisdiction.” 10 U.S.C. § 10202(a).

Apropos of the constitutional grant of power to Congress to provide for “organizing” and “disciplining” the Militia, Congress has directed that “[t]he discipline, including training, of the Army National Guard shall conform to that of the Army. The discipline, including training, of the Air National Guard shall conform to that of the Air Force.” 32 U.S.C. § 501. If the Guard fails to comply with federal standards, the President is empowered to cut off its funding: “If, within a time fixed by the President, a State fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” 32 U.S.C. § 108. If a state should find federal standards governing the National Guard to be too tight a fit, the state is free to establish (and pay for) its own, independent version. 32 U.S.C. § 109(c). Oklahoma has not done so.

The upshot of all this is that, however wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state (and the court does not presume to define the extent of that authority other than as is strictly necessary for present purposes), it is unmistakably clear that the intent of Congress, as expressed in the text of its enactments, is that the Guard and its members will at all events be prepared, conformably to federal military standards, Case 5:21-cv-01136-F Document 41 Filed 12/28/21 Page 19 of 29 20 to be ordered into federal service, deploying alongside members of the active duty Army and Air Force, on little or no notice, anywhere in the world–which is exactly what the Oklahoma Guard and its members have done, with great distinction, on dozens of occasions

Federalist and Anti-Federalist Views of the Executive

 At AEI, Gary Schmitt and Joseph Bessette have a paper titled "Debating the presidency: Anti-Federalist and Federalist views of executive power during the ratification debate."

The paper analyzes Anti-Federalist and Federalist views of the office of the presidency during the ratification debate over the Constitution in 1787-1788. It explores in detailed fashion the critiques and defenses of what the Constitution’s architects had established with respect to executive power and its relationship to republican government.

Four-Year House Term?

 Richard Pildes at NYT:

The two-year House term has profound consequences for how effectively American government can perform — and too many of them are negative. A longer, four-year term would facilitate Congress’s ability to once again effectively address major issues that Americans care most about.

...

In nearly all other democracies, parliaments are in power for four to five years. Political scientists view voting as primarily the voters’ retrospective judgment on how well a government has performed. Four to five years provides plausible time for that. But the comparison with U.S. House members is even starker than focusing on the two-year term alone. In most democracies, members of parliaments do not have to compete in primary elections; the parties decide which candidates to put up for office. But since the advent of the primary system in the early 20th century, members of Congress often have to face two elections every two years.

Moreover, in most democracies, candidates do not have to fund-raise all the time to run; governments typically provide public financing to the political parties. The two-year term, combined with primary elections and the constant need to raise funds individually, generates exceptional turbulence and short-term focus in our politics.

Constitutional Obligation

Many posts have discussed the Founding.

Greg Weiner at The Constitutionalist:

When teaching Edmund Burke, I often pose this question: Suppose you inherit a manor house that has been in your family for generations. It has, in all likelihood, been modified, whether with electricity or indoor plumbing or a modern kitchen. But the basic structure of the house remains intact: An ancestor from generations ago would still recognize it. The place doesn’t suit your tastes, so you decide to tear it down and build something in the style of modernist architecture instead. The question is this: Have you done something unwise or immoral?

The politics of obligation holds that you have wronged both your ancestors and descendants. Your ancestors built and tended this house; your descendants will expect to have received it in trust as well. But you elevated your appetites over that obligation.

Constitutional obligation is similar. We are obligated to the Constitution not because it or its framers were perfect—neither it nor they were—but rather because we hold their legacy in trust.

In September 1789, Madison’s friend Thomas Jefferson, the American minister to France—who was infatuated with the revolution in that country—wrote him a letter. Its central claim was that “the earth belongs in usufruct to the living.” Past generations could claim no right over it. Jefferson, using demographic tables to calculate the length of a typical generation at 19 years, said no public debt or law could bind beyond that duration.

President Biden's Vax Mandate

The Department of Labor is developing an emergency rule to require that all employers with 100 or more employees ensure their workforces are fully vaccinated or show a negative test at least once a week. pic.twitter.com/Yn2kDf63FU

— Joe Biden (@JoeBiden) September 10, 2021

Colin Kalmbacher at Law & Crime:

The administration’s latest exercise of highly-publicized state power in response to the renewed COVID-19 pandemic was predictably met with grumbling from discontented online posters and commentators, primarily on the political right. Quickly after Biden’s plans were made public, the hashtag #DoNotComply spread on Twitter.

Legal experts, however, quickly noted that the vaccine mandates were likely to pass constitutional muster.

“Yes, this is constitutional,” famed constitutional law professor and Dean of Berkeley Law School Erwin Chemerinsky, told Law&Crime.

“There is no constitutional problem with requiring people be vaccinated,” the author of the premier constitutional case law textbook used in U.S. law schools added. “The government could require everyone to be vaccinated against COVID.”

“This was resolved by the Supreme Court in 1905,” Chemerinsky said, referring to Jacobson v. Massachusetts.

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The first proposal will have the U.S. Department of Labor, under the auspices of the Occupational Safety and Health Administration, issue new rules that mandate any business with 100 or more employees enforce vaccine compliance among their workforce or maintain a regime where employees submit to weekly COVID-19 testing.

The new rules will further mandate that such large businesses must provide paid time off for their employees to receive the free vaccinations–and for any necessary post-vaccine recuperation.

“To continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination,” the White House explained in a press release announcing the new directives.

“The issue is whether the government has the authority under some statute to order employers to require vaccination or weekly testing,” OSHA expert and Wake Forest University Law Professor Sid Shapiro told Law&Crime. “If such authority exists, it would be constitutional because Congress can regulate interstate commerce.”

New York City-based attorney and writer Luppe B. Luppen said the relevant statute was contained in OSHA’s authorizing legislation, the Occupational Health and Safety Act of 1970, which was signed into law by then-president Richard Nixon.

In response to conservative writer Andrew Egger calling Biden’s new proposals “nuts,” Luppen retorted that the move was “a plain Jane congressionally authorized OSHA regulatory proceeding under Section 6(c) of the Occupational Safety and Health Act.”

“OSHA’s been around for 50 years,” federal employment attorney Bradley P. Moss added via Twitter.