Ex Post Facto And Rotating Regional Primaries

[ Posted Thursday, September 20th, 2007 – 17:10 UTC ]

It seems to be Constitution Week for this column.

Today I'd like to examine two constitutional questions -- whether Congress can give immunity to a crime already committed, and whether Congress can force states into a primary schedule of their own devising.


Ex Post Facto

Ex post facto can be translated as "after the fact." It is enshrined in our Constitution. From Article I, Section 9 -- which concerns things Congress can't do -- here is the relevant text:

No bill of attainder or ex post facto Law shall be passed.

[For the curious, a bill of attainder is Congress finding a person guilty of a crime. Closest thing we've seen to that in recent years was the Terri Schiavo case.]

The intent of this is to ban Congress from making things retroactively illegal. Congress can't, for instance, ban the reading of My Pet Goat and then arrest President Bush for doing so on the morning of 9/11. If it was legal when the event took place, then it cannot be made illegal later on.

Simply put, laws begin the moment they're signed by the President, and nothing that took place before then can be prosecuted as a crime under that law.

But what about the reverse?

Can Congress make things legal after the fact, by passing a law that says so?

Now, I'm no legal or constitutional expert (although "I play one on the net"), so I don't know the answer to that question. As far as I could find out, the question has never been tested in court, so there simply are no judicial precedents.

Congress has indeed passed such a law, and rumor has it that the Democrats are about to roll over (once again) and give Bush what he asks for in yet another law.

The law Congress already passed was the Military Commissions Act last year, which retroactively made legal anything the CIA or other governmental branches did in "the war on terror" (back to 11/26/97). Which means if it could ever be proven in a court of (American) law that a CIA agent tortured someone, it doesn't matter because Congress and the President have written it into law that they get a free pass.

The second instance is warrantless wiretapping. The White House pretty much got everything it wanted before Congress adjourned in August, but the law as written will expire in six months. Which means a permanent law needs to be written. So the Bush administration is pushing hard for a new provision in the permanent law -- that communications companies will not be liable for anything they did previously with respect to warrantless wiretaps.

This is important, because the only court case which has not been thrown out on national security grounds is not against the government, but against phone companies. If Bush gets his way, this court case will get tossed out as well. And, like I said, Democrats appear ready to roll over and let Bush get his way.

Maybe this will provide the test case to bring the ex post facto issue before the Supreme Court. It's established legal fact that Congress can't make something illegal after the fact, but it has not been so established that Congress can make something legal after the fact.

Common sense says the two are the same, and it is unconstitutional.

Because there is another route, and it has indeed been used before. The President can just issue a blanket pardon for everything that happened before the new law was passed. Bush could have just pardoned everyone in the CIA and elsewhere for any torture case, and they would never be tried in court for it. As I said, this has happened before, when Jimmy Carter pardoned all the Vietnam War draft dodgers. No specific person was named, just a specific crime -- avoiding the draft -- was (in essence) wiped off the books.

Liberals would scream if Bush used the pardon power in this fashion, but it is constitutional. Passing ex post facto laws is not.


Rotating Regional Primaries

This one is not as cut and dried, as it seems to me that both sides have a good argument.

A bipartisan group has just introduced a bill to Congress that would mandate a primary election scheme for the entire country. The question is whether this is constitutional or not.

Now, I have to say, I am in favor of the idea in general. The bill mandates a schedule of rotating regional primaries instead of what is fast turning into chaos. I have come out in favor of this idea before on numerous occasions (see 7/26/06 and 5/9/07, for examples), and think it's certainly a better idea that the current anarchy. [I am always careful to credit Jimmy Carter's blue-ribbon commission, which is where I first learned of the scheme.]

It would work like this: divide the country into a number of geographic regions. When the next election rolls around, have (for the sake of example) the West vote first. Then, a month later, the South. A month after that, the Northeast would vote, and so on. The presidential election after that, the West would vote last, and the South would vote first. The election after that, the South would vote last, and the Northeast would take its turn at the front of the line.

There are many arguable details in this scheme. How many regions, which state is in what region, who goes first, what order the regions are in, and (a big one) will Iowa and New Hampshire still get to go before everybody else? These are minor points which, while debatable, also don't affect the overall scheme.

But the question remains: can the federal government impose a schedule on the state governments for a primary election, which is (after all) not even a "real" election but rather (theoretically) private? The Constitution is completely mum on the subject of primary elections, as it is about political parties (the Framers thought political parties were a bad idea...). What it does have to say about elections is (Article I, Section 4):

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

But then Section 5 seems to contradict this somewhat by stating:

Each House shall be the judge of the elections, returns and qualifications of its own members...

What does "being the judge of" really mean?

And remember, when we first started, the President was elected much like Parliament and definitely not through direct election. The Electoral College is the remnant of this scheme. But it means that the Constitution doesn't say anything about the direct election of President. The closest it gets is laying out where electors (members of the Electoral College) come from (Article II, Section 1):

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

All of these passages mean that, in the original scheme, the federal government didn't even mandate that election day happens on the same day in every state. They've obviously done so since then, as we all now vote on the same day. So Congress in the past has exercised its right over the states to dictate when election day will be held. Meaning that they do have the power to regulate the states over elections ("Congress may at any time by law make or alter such regulations").

Ah, but then primaries aren't really elections, are they? They are a private election (within each party) to determine who will run in the general election, and as such are not really a function of even the states, but of the parties themselves.

But this is nonsense, as the states are the ones who run the primaries. There may be other, actual elected offices voted on at this time, and there may be state or local popular referenda on the ballot as well (Propositions and Measures and all the rest of the direct democracy ballot items, in many states). So they really are elections.

Now, the two major parties want to have it both ways. They want (1) the states to run the primaries, since doing so privately would cost a lot of money and it's a lot easier to let the state pick up the bill using tax dollars, but also (2) they want full control over the process, up to and including deciding who gets to vote in their primary, and when it happens.

Their problem is that it is devolving even within the parties. The state party organizations, with the backing of their state governments, want to decide when their state holds a primary. The national party organizations want the right to decide the schedule for everybody. There is a huge fight brewing between these two factions which may make next year's conventions a lot more interesting than usual.

But can the federal government step into this fray and play a trump card? Can Congress, in other words, force the states into following their schedule?

Like I said, this one is a lot murkier than the ex post facto issue. But Congress is going to make the attempt to regain control over the states, so it may wind up in the Supreme Court sometime next year.

I personally think the states have a very strong case to make, Having said that, the process has become so chaotic that I think we should either (1) just give up and have a true "national primary day", or (2) let the feds impose some sort of rational scheme on the states.

But then, that's just my opinion.


-- Chris Weigant


One Comment on “Ex Post Facto And Rotating Regional Primaries”

  1. [1] 
    Michael Gass wrote:


    Regarding "ex post facto":

    An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action.

    So, there are at least some legal scholars who see `ex post facto` not just as changing legal to illegal, but, changing the legality period retroactively.

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