Archive for the ‘Separation of Powers’ Category


As I previously mentioned, in December, the North Carolina legislature passed a law limiting the future governors’ powers. The background to this action is that the legislature belongs to one party (with a veto-proof majority), and the governor to the other. The current governor, on his way out, signed the bill into law. Specifically, the new law strips future governors of their power to appoint a majority to the State Board of Elections. It also makes it more difficult for certain types of cases to appeal directly to the NC Supreme Court, which is controlled by the future governor’s party. Pending legislation (pdf warning) also strips the governor of his ability to name members to the boards of state universities, and reduces the number of state employees the governor appoints from 1,500 to 425. Further, the governor’s cabinet appointees become subject to approval by the State Senate.

In an interesting turn of events, a NC Superior Court judge temporarily blocked the new law with an injunction, citing McCrory v Berger (pdf warning). In that case, the legislature created an agency within the executive branch. The court held that separation of powers required that the governor, as leader of the executive branch, must have effective control of the agency. But, since the legislature selected a majority of the agency members, and it could remove members for cause, the court decided that the governor didn’t have enough control over the agency for it to respect the separation of powers required by the NC state constitution.

The current case, however, is slightly different: the election board at issue is an independent state agency (and since it’s not an executive agency, it presumably doesn’t need to be controlled by the governor), and the members are evenly selected by the governor and the legislature. My guess is that it should come out okay because of those differences, but it’s a new issue for the NC courts – which makes the injunction a smart play by the judge. I don’t expect this to be appealed to the Federal Supreme Court, because it’s squarely a state constitutional issue, but it’s nice to see courts not shy away from these very real constitutional issues just because politics are involved. Although, admittedly, state courts are much more likely to be politically active, since state judges often are heavily tied to one party or another, unlike federal judges, who tend to distance themselves from the political machinations of Washington DC. Relatively speaking, of course.

The Electoral College Business

Posted: December 30, 2016 by Nazim in Election, Separation of Powers


Now that the commotion has died down, a couple of points of clarification on the Electoral College. I’ve said a few times that it was merely a matter of convenience, a way to expedite the vote from many localities to the capital of the country, a logistical shortcut to avoid making the federal government responsible for counting all the votes in remote areas. That’s not wholly accurate.

The 12th amendment was ratified shortly after the constitution was written, and governs how this elector business is dealt with. It was, much later, over-written to a small degree by section 3 of the 20th amendment. Further clarification can be found in the Federalist Papers (number 68, to be specific), but, if you actually go through the plain text of the constitution, the steps involved are pretty simple, although their goal is still confusing. See for yourself how the president and vice-president of the United States are actually elected:

  1. Each state’s political parties nominates electors. This step is governed by state law (pdf warning) and varies a bit.
  2. Based on the votes cast by citizens in the general election for the presidential and vice-presidential candidates, the nominees selected above become actual electors for that state.
  3. Electors meet in their states and vote on two separate ballots for the president and the vice-president.
  4. Those votes are sent to Congress, where they are all counted up.
  5. If a presidential or vice-presidential candidate has a simple majority of the votes, the process of electing that office ends there.
  6. Otherwise, the House of Representatives chooses a president among the top three individuals most voted by the electors for the job.
    • Oddly, each state gets only one vote, so I’m guessing the representatives of each state have to agree on how to cast that vote. There’s no mention of how this agreement should come to be, but I have suggestions.
  7. In parallel, if the electors didn’t have a majority of votes for a vice-president, the Senate picks one among the top two most voted candidates, voting normally. If the House can’t get its act together (I know, how unlikely is that?), this lucky guy or gal becomes the president.

It’s never gotten remotely close to going past step 5, except when our nation was in its infancy.¹ We’ve had plenty of faithless electors, but any elector that gives away such intentions can be replaced by their party under Ray v. Blair, although the dissent of justice Jackson (of Nuremburg trial fame), in which justice Douglas (of civil rights fame) joined, is noteworthy:

no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.

Sounds kinda like the power of jury nullification, doesn’t it? However, this case doesn’t address whether electors can be faithless. It just allows parties to replace them at will, or bully them with the threat of replacement, before the vote. Which drove at least one elector to just quit before the vote.

Some say that the electors should be a body empowered to do whatever it wants, making the popular vote more of a consultation with the citizenry. That’s insane, unless we agree beforehand that that’s what we’re really doing. But we never will.

¹ One such instance was when presidential candidates Thomas Jefferson and Aaron Burr tied with 73 electoral votes each in 1800. These and other events of the time are fantastically showcased in the runaway Broadway hit Hamilton.


You’ve probably seen this elsewhere, but I wanted to link the beautiful letter the MO PD sent to the Governor (pdf warning). Now, let’s move on to how the governor could get out of doing the job, because he will. As the letter plainly states, the PD’s office has the legal power to appoint any attorney with a current bar license. There’s no conflict of interest, because the prosecutor is an independently elected office in the great state of Missouri. Maybe the governor can get out it by suspending his bar membership? Well, all my dreams will come true if he takes the case to trial, loses, and then pardons his client.

Hat tip to Nick for highlighting the article on buzzfeed.

To present both sides of the issue, “In 1800, just a decade after the court was founded, so many of its justices were out campaigning for John Adams that the opening of the court term had to be delayed.” Article at Politico.


This case arose out of a wrongful death lawsuit against Iran for deaths caused by terrorism.  After a judgment was issued in favor of Plaintiffs, the Plaintiffs were unable to collect money to satisfy the judgment via traditional means.  Even though Iran had 2 billion dollars of funds in a New York bank, Federal law precluded plaintiffs from attaching those funds.


To compensate Plaintiffs for their injuries, Congress passed the Iran Threat Reduction and Syria Human Rights Act which allowed these specific Plaintiffs to obtain these specific funds.  This Act has been contested as an unconstitutional breach of the Separation of Powers doctrine, which disallows one branch of government from stepping on the toes of another branch of government.  This Act also could be construed as an unconstitutional Bill of Attainder, which prevents Congress from passing a law that only affects one specific person.


This case is not yet decided.


Presumably, if the law is struck down the Supreme Court will likely draw the ire of Congress and the President, who support the statute.  If the law is upheld, one would assume that Iran wouldn’t be super pumped about it, and this bodes fairly poorly for other sovereign nations who have either money or property within the U.S. under the expectation that it is protected from domestic attachments.


Love the Founding Fathers and would like to see the current government have egg on their face.   You are also probably ignoring all the terrorism implications.


Love the Patriot Act and don’t mind pissing off Iran.  You are also probably ignoring all the Constitutional implications.