How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a state legislature to restrict the authority of its delegates to an Article V convention, to require from its delegates an oath or pledge to restrict their deliberations to the subject of the application, and to provide for disqualification of and/or sanctions against any delegate who violates these restrictions. See Michael L. Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 786 (Spring 2011). Since that time, at least seven states have passed such “delegate limitation acts” or “faithless delegate” laws. See David F. Guldenschuh, The Article V Movement: A Comprehensive Assessment to Date and Suggested Approach for State Legislators and Advocacy Groups Moving Forward 19 & n. 77 (Nov. 2015).

The concept of DLAs (as I shall refer to them collectively) was in part based on analogous laws that had been passed or proposed to bind presidential electors. See Stern, 78 Tenn. L. Rev. at 786 n. 111. For example, the Uniform Faithful Presidential Electors Act (UFPEA), completed by the Uniform Law Commission in 2010, “provides a statutory remedy in the event a state presidential elector fails to vote in accordance with the voters of his or her state.” The UFPEA provides “a state-administered pledge of faithfulness, with any attempt by an elector to submit a vote in violation of that pledge, effectively constituting resignation from the office of elector.” While only a handful of states have passed the UFPEA thus far, a total of 30 states plus the District of Columbia have some sort of law purporting to bind presidential electors to vote for their state’s popular vote winner.

The constitutionality of the UFPEA and other “faithless elector” laws has been debated and litigated over the past several months. Following the November 8, 2016 presidential election, a concerted effort was made by the “Hamilton electors” to argue that (a) presidential electors are free, as a constitutional matter, to vote in accordance with their own judgment and conscience; and (b) whatever norms might ordinarily compel electors to vote in accordance with the popular vote in their state were overcome by the unique and extraordinary facts of this election. These facts fell into three categories: (1) the failure of Donald Trump to win a majority or plurality of the national popular vote; (2) facts which allegedly showed Trump’s unfitness for office (some of which cannot be mentioned on this family-friendly blog); and (3) facts which allegedly showed foreign interference in the election.

As best you can, clear your mind of any passion these arguments may incite in it. Our objective here is not to pass judgment on President Trump, the Hamilton electors, or even the merits of their respective legal arguments per se. Instead, it is to see what the effort to secure an unbound electoral college, a “runaway college” if you will, tells us about the practical, real-world prospects for an analogous effort with regard to an Article V convention.

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Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

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