During the 2020 election controversy a key aspect of our Constitution surfaced that few people—including most attorneys—had ever heard of.
This was the little-known field of “federal functions”—responsibilities the Constitution gives directly to persons and groups entirely outside the federal government. The constitutional amendment process contains the most extensive and most-litigated list of federal functions.
However, the federal function involved in the election controversy was the power the Constitution grants state legislatures over presidential electors.
In the aftermath of the November 3 popular vote, many believed the presidential contest had been marred by corruption and other problems. But most state lawmakers were unaware that the Constitution gives them the power, and responsibility, to fix the problems. Not only state lawmakers but even many legislative lawyers didn’t know much about the subject.
No wonder. Federal functions are almost totally—perhaps I should say “totally”—overlooked in law school courses.
Yet they are hugely important. Federal functions include (1) voting in federal elections, (2) serving on federal juries, (3) state legislative regulation of federal elections, (4) the responsibility of governors to call elections to fill congressional vacancies, (5) in some states, the governor’s power to appoint temporary U.S. Senators, and (6) the duties of state legislatures and conventions in the amendment process.
Believe it or not, until now there had never been a scholarly article surveying these federal functions. There only had been articles about individual functions, treated in isolation from the rest. I’ve written the first survey, just published by the University of Pennsylvania Journal of Constitutional Law.
Because it’s a survey, so it’s short—16 pages. You can read it here.