Foley: “Public Health, Closing Polls, and the Tenth Amendment”

The following is a guest post from Ned Foley:

After what happened with Ohio’s primary this week, some—including Ohio’s own Senator Sherrod Brown—have expressed fear that President Trump might attempt to use it as a precedent to close the polls on November 3, the date of the general election this year.

But there is an important constitutional reason why what the state government’s health director in Ohio, Dr. Amy Acton, did to protect public health is not a power that the federal government, including President Trump, can exercise.  The reason is the Tenth Amendment, in the federal Constitution, which the U.S. Supreme Court has interpreted in a series of cases (most recently one involving sports gambling in New Jersey) to preclude the federal government from “commandeering” a state government’s own sovereign powers to regulate as the state government determines best for the citizens of that state.

While the U.S. Supreme Court has not had need to apply this “anti-commandeering” principle to a state government’s operation of polling places on Election Day, the principle would seem to apply straightforwardly based on the logic of the Court’s relevant precedents, especially the major opinion written by Justice Scalia involving the Brady Act, Printz v. United States, which purported to direct state and local enforcement officers how to conduct background checks for gun purchases.  Indeed, this is a point that I have discussed with the students in my Constitutional Law course over the years.

Operating the polls on Election Day is a core administrative function of state and local governments, essentially similar to police background checks.  “The Federal Government,” Justice Scalia explained for the Court, may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”  He elaborated: “such commands are fundamentally incompatible with our constitutional system of dual sovereignty”—just as much as it would be for federal officials to be “impressed into service for the execution of state laws.” Thus, even if the federal government reached a policy judgment that the polls should not open on November 3 as scheduled for health-related reasons, the federal government could not constitutionally enforce that policy judgment by ordering state and election officials what to do, namely to shut down the polling operations that these state and local officials were preparing to undertake.

Elections for state and local offices

To consider this point, imagine it applying first to an election in which there is no federal office on the ballot.  In other words, suppose that there is an upcoming election for governor, state legislature, city council members, and other local offices.  Suppose then that some official of the federal government thinks it would be a public health problem for voting at the polls in this election to go forward as scheduled.  Whatever the validity of the federal government’s public health concerns, the federal government could not constitutionally pursue its health policy by ordering the state government to shut down its polling place voting in this election.  Such a federal order would be a direct assault on the state government’s own sovereignty in conducting its own elections to effectuate representative government for the people of that state.

Justice Scalia’s opinion for the Court is emphatically clear that this is the conclusion no matter how strong the federal government’s health concern may be.  Both the federal government and the dissent in Printz made the argument that “in times of national emergency” state sovereignty must yield.  No, Justice Scalia answered, the “structural framework of dual sovereignty” was such that no “balancing” of competing considerations was permissible. “It is the very principle of separate state sovereignty that [commandeering] offends, and no comparative assessment of the various interests can overcome that fundamental defect.”  The federal government would need to pursue its health objectives in other ways: for example, by persuading the state officials to close the polls on their own volition, or by providing federal dollars as an inducement to do so. But no matter how strong the federal interest, the federal government cannot tell the state government that it must stop its citizens from going to the polls to vote for governor and other state or local elective offices.

This strict interpretation of the Tenth Amendment is related to a more general point about “federalism,” which is the constitutional principle that divides governmental authority between the federal government and the states.  The Constitution makes clear that federal law is “supreme” when it applies, but the federal government has only designated areas of authority specified in the Constitution itself, whereas state governments have general “police powers” that they can use to address any area of public concern.  Thus, when it comes to matters of public health, state governments have plenary authority to decide what is required.  And if state officials decide that public health requires closing the polls on Election Day, they have the constitutional authority to do that, which is essentially what Ohio officials did this week.

The federal government has no such plenary authority over public health.  The Constitution gives the federal government certain designated powers, including the regulation—and protection—of interstate commerce.  As events this week surely show, matter of public health can drastically affect interstate commerce, and thus pursuant to its “commerce” power the federal government can take action with a view to the impact of public health on the economy.  But the federal government cannot invoke its “commerce” power in a way that would violate the Tenth Amendment or destroy the structural principle of “dual sovereignty.”  Recognizing that state government is where the constitutional authority resides to close the polls in order to protect public health, the federal government pursuant to its “commerce” power would have to convince the state of the public health imperative to take this step.

Congressional and presidential elections

The constitutional analysis is a bit more complicated when it comes to elections for federal offices: Congress and the presidency.  But the same Tenth Amendment conclusion ultimately applies, at least in the current context.  There is no power in the federal government to close the polls in this year’s federal election scheduled for November 3.

Under Article I, § 4 of the Constitution, Congress has the power to write the rules for congressional elections, taking over this authority from the states—where it lies in the first instance. Given this explicit congressional power, it would at least raise a separate Tenth Amendment question whether Congress could order state and local election officials to run congressional elections a certain way, notwithstanding the “anti-commandeering” principle articulated by the Supreme Court.  Even so, the “anti-commandeering” principle might block Congress from “conscripting” state and local election officials to run congressional elections as Congress wishes; instead, Congress might be required to create a corps of federal election officials to administer congressional elections in the way that Congress wants.

But when Congress has not taken over the task of regulating congressional elections, but instead left it to the states (as Congress largely has), so that states administer congressional elections using the same procedures as for their own state and local elections, then the same Tenth Amendment constraint applies to protect state sovereignty from federal orders to state officials (as if the state was just a bureaucratic subdivision of the federal government).  Congress has enacted no law that would empower any federal officer to order the polls closed in congressional elections for a public health reason.  Therefore, if a federal official attempted to do that, the federal government would be interfering with the baseline sovereignty of states to run elections as they see fit, with congressional elections being administered by the states alongside state and local elections.  Consequently, just as the Tenth Amendment would block the federal health officer from closing the polls in a gubernatorial election, so too does the Tenth Amendment block the federal health officer from closing the polls in a congressional election—at least until Congress enacts a law purporting to mandate otherwise.

Presidential elections are still another matter, given the relevant constitutional provisions.  Under Article II, § 1 of the Constitution, state legislatures have the power to determine the “manner” by which the state’s presidential electors are appointed. State legislatures have chosen to exercise this power by holding popular votes to appoint their elections.  But as Bush v. Gore confirmed, state legislatures are not constitutionally required to do so, and could appoint electors directly (or by some other “manner”), as many did in the early years of the Republic. 

Given this constitutional authority lodged in state legislatures over the appointment of presidential electors, it would doubly violate state sovereignty for a federal official to attempt to interfere in the “manner” that the state legislature has chosen for their appointment.  For the reasons already elaborated, it would violate the Tenth Amendment if a federal official attempted to tell state and local officials to close the polls on November 3, so that the state’s citizens could not participate in the popular vote that the state legislature has chosen as the “manner” for appointing the state’s electors.  It would be an unconstitutional form of commandeering of state and local election officials in an effort to effectuate the purported federal policy.  But even more than that, it would be a direct violation of Article II, § 1, which gives the state and not the federal government the power to determine how the state’s presidential electors are appointed.

In sum, there is no constitutional authority for the federal government to require a state to close the polls on November 3, as the state’s chosen method for appointing its electors.  This constitutional conclusion applies whether the federal government is purporting to act in the interest of public health or otherwise.

Presidential Power and the Tenth Amendment

Thus far, the analysis of the applicable constitutional issues has proceeded as if the relevant federal official purporting to close the polls on November 3 was a subordinate executive officer in the realm of public health, perhaps the Secretary of Health and Human Services (HHS), or the Director of the Center for Disease Control (CDC). But what if the order comes from the President of the United States, purporting to exercise the full constitutional authority of the Executive Branch under Article II?  Does the analysis change?

Not really. In the famous Steel Seizure Case, involving President Truman’s attempt to take over the nation’s steel mills during the Korean war, the Supreme Court emphatically rejected that a President has inherent powers under Article II to act in the national interest, regardless of what Congress has legislated. Instead, in order to exercise “executive” authority, the President must act pursuant to law, which means that Congress must have legislated on the matter, delegating authority to the President on how to execute national policy, or at the very least Congress must have sent a signal implying that the President has executive authority to act until Congress chooses to change national policy on the topic.  The President cannot just act unilaterally.

The necessary implication of the Steel Seizure Case is that the President is bound by the Tenth Amendment just as much as Congress is, at least insofar as the President is purporting to “execute” national policy in an area of congressional regulatory authority.  Thus, if the issue is public health, which Congress purports to have power to address in order to protect “interstate commerce,” then just as Congress cannot regulate public health in violation of the Tenth Amendment, so too the President cannot attempt to effectuate a congressional desire to protect public health in a way that violates the Tenth Amendment.

To see this point clearly, consider again the Brady Act case, Printz, involving police background checks.  Congress could not end-run the fundamental “dual sovereignty” principle articulated in that case by attempting to delegate even to the President power to order state and local officials to conduct the background checks.  Nor could the President on his own initiative, in an effort to pursue the same gun safety policy that animated the Brady Act, order the state and local officials to do what the federal Chief Executive wants.  The Tenth Amendment blocks even the President, as much as Congress, from violating the essential anti-commandeering principle.

The Constitution does permit Congress to give the President as “commander in chief” authority over “the militia of the several states, when called into the actual service of the United States.”  Thus, it would not violate the “anti-commandeering” principle of the Tenth Amendment for the President to give direct orders to a state militia (now incorporated into “the National Guard”). But state and local election officials are not part of the state militia, and thus ordering them to close the polls would not be an exercise of this “militia” power.

Nor would it be a valid exercise of this “militia” power for the President to order the militia itself to take over the polls and shut them down, contrary to the conduct of the state and local election officials pursuant to state law.  In Ex Parte Milligan, the Supreme Court confirmed that there are limits to a president’s attempt to assert military authority over civilian government even in the midst of the Civil War.  As long as civil courts were capable of functioning, the President lacked the power to supersede them with military jurisdiction.  Presumably, the same principle would apply to polling places. If state governments were capable of keeping the polls open even in wartime—and although the nation indeed is metaphorically at war against COVID-19, it is not an actual war pursuant to the exercise of the Constitution’s war powers—the President would not be entitled to shut the polls down as a matter of military necessity. 

In any event, Congress has enacted a statute that expressly prohibits “armed” federal troops at polling places. Thus, even apart from the constitutional principle established in Ex Parte Milligan, under existing statutory law the President is precluded from ordering the militia (or National Guard) to close polling places “unless such force be necessary to repel armed enemies of the United States.” As lethal as this virus is, it is not an “armed enemy of the United States” within the meaning of this statute.

Conclusion

The upshot of this analysis is that, contrary to the fear expressed by Senator Sherrod Brown (among others), the President lacks the power to close the polls on November 3. Even if the President had this power, it would not negate the November election completely. As events in Ohio this week illustrate, a health-based order to close the polls on Election Day still leaves a separate electoral question concerning what happens to the election itself, including absentee and early in-person ballots already cast in the same election.  It is at least theoretically possible that state officials—and not the President—might order closure of the polls on November 3, as Ohio officials did for the state’s March 17 primary, and as to that possibility it is worth considering the separate electoral questions that would arise in that context (but not as part of this analysis). 

The key point here, however, is that when it comes to the President, or other federal officials, one never gets to that separate electoral analysis.  Instead, the Tenth Amendment and fundamental principles of state sovereignty block the exercise the federal government from ordering state and local officials to close the polls on Election Day. If there is going to be any such poll closures in November—which is most unlikely, since what happened in Ohio was extraordinary, predicated by the accelerating danger of COVID-19 as the date of the primary election arrived—it will be because state officials, not the President, have the constitutional authority to take this action to protect against a public health emergency.

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