This whole thread of argument you're making is, and this is saying something, distinctively hard to assume good faith about.
A century of a growing administrative state and sweeping anti-democratic social changes that have no basis in the constitution is pretty impactful.
> Further: zero is the number of Republicans that would accept the constitutionality of the argument you're making were the roles reversed.
Maybe, but the roles are rarely reversed because they’re not nearly as creative in their legal positions. Even here—imagine what more you could justify by looking at the “penumbras” and “emanations” of that clause of Article II! (Or the second amendment, or the tenth amendment, etc.) Just imagine a 6-3 conservative Supreme Court that all approached the constitutional text the way Breyer did.
> This whole thread of argument you're making is, and this is saying something, distinctively hard to assume good faith about.
I’ve thought direct election of the President (and Senators) was stupid ever since 1L constitutional law. The GOP is just finally coming around.
And I did not suggest anything was “justified,” because frankly that’s irrelevant. What matters is what the constitution says and means. It invests the ultimate power to “appoint” electors in state legislatures. States may choose to put that to a vote as a matter of state law, but I struggle to see anything in the constitution that would prevent them from overriding that law, even after an election. If a school principal puts something to the students for a vote—something that the law entrusts to her discretion—can she ignore that vote and do what she wants? Probably!
Finally, I’m not “trolling,” I’m being quite serious. In the US, the state legislatures select the President, just like the EU President is selected by the European Commission. Direct election of the chief executive is a stupid idea, and most civilized countries don’t do it that way. State legislatures taking the power to appoint electors back after holding an election is politically messy, and may violate state law depending on the particulars. But there’s nothing unconstitutional about it. Neither as a matter of the text, or the underlying principles. (As to Senators we should repeal the 17th amendment, but that at least has a textual footing.)
I don't interpret rayiner's comments as supporting the independent state legislature (ISL) theory. ISL claims that the constitutional power of state legislatures to regulate federal elections cannot be limited by state constitutional provisions or rulings of state courts. I don't see rayiner as making that claim here – he claims that when state law provides for popular election of presidential electors, the state legislature can repeal or suspend that law, even in-between the popular election and the formal nomination of the presidential electors. ISL would go further, and say that if the state legislature chose to do that, the state courts could not strike it down as a violation of the state constitution; I haven't seen rayiner make that claim anywhere in this conversation; but, if he doesn't make that further claim, what he is espousing is not the same thing as ISL.
You could justify a theory of an immense array of independent Presidential powers hidden within the penumbras and emanations of the phrase “Commander-in-Chief”, despite that phrase being simply a limitation on who has the apex command position over the military under the regulation Congress is clearly and explicitly given the power to provide for it. Just to pick one example of where the Right has demonstrated the exact creativity you deny that they exercise.
To look at a different clause of Article II, you could justify a theory of an immense array of independent Presidential powers hidden within the penumbras and emanations of the phrase “Commander-in-Chief”, despite that phrase being simply a limitation on who has the apex command position over the military under the regulation Congress is clearly and explicitly given the power to provide for it. Just to pick one example of where the Right has demonstrated the exact creativity you deny that they exercise.