Constitutional Procedures as a Distinct Category

I. Introduction

The Constitution’s procedures have gotten a lot of attention in recent years amidst a disputed election, a flurry of impeachments, heightened questions about Presidents’ fitness for duty, and a disputed constitutional amendment.^[1] These are high-stakes matters, so these events have produced the political tumult and media buzz that one would expect. They also present an opportunity to reexamine some assumptions about constitutional law.

One such assumption is about classification. American law schools and scholars commonly divide U.S. constitutional law into two “separate blocks”: structure and rights.^[2] Both parts ask the same basic legal questions about government (“Can they do that?”, “Who gets to do that?”) for an endless stream of hot-button issues.^[3] But this dichotomy ignores a third category of constitutional law: procedure.

The Constitution’s procedural provisions deal with a different question: “How is this thing done?”^[4] Often, compared to substantive provisions, the Constitution’s procedural provisions are drafted differently and function differently—and thus should be interpreted differently as well.^[5]

II. Constitutional Procedures as a Category

Almost every provision in the Constitution is about either rights or structure, and most are simple to identify as such. Many rights provisions contain the word “right” itself.^[6] Of those that do not, most still make it obvious that they are extending protection against government action.^[7] Most structural provisions expressly grant,^[8] structure,^[9] or allocate^[10] power. These categories are distinctive, but not mutually exclusive. In other words, they overlap—structural provisions often affect rights, and rights provisions often affect or reflect structure.^[11]

Procedural provisions are not always as simple to identify. Here too, the category of “constitutional procedures” is distinct from the other categories, but not exclusive of them. Mindful of these fuzzy boundaries, this Part of the Article will offer a three-part taxonomy of constitutional procedures.

A. Hardwired Procedures

Some constitutional provisions are procedural on their faces. Consider the Presentment Clause, which specifies how legislation is enacted once Congress has approved it:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.^[12]

The next clause applies the same requirements to other forms of legislative action besides bills.^[13]

Alongside all these procedures, significant structural work is being done too. For instance, while Article I initially vests “[a]ll legislative Powers” in Congress,^[14] the Presentment Clause assigns a powerful legislative role to the President.^[15] More directly, the clause’s requirements and restrictions serve to expand and contract congressional and presidential powers. But on its face, the verbiage of the Presentment Clause is hardwiring the procedure, setting out precisely how legislation is finalized after it passes Congress. The clause provides a presentment requirement, a signature requirement, a reason-giving requirement, an order-of-houses requirement, a journal requirement, a reconsideration requirement, a yeas-and-nays requirement, another journal requirement, a ten-day time limit, a Sunday exception, and an adjournment/pocket-veto exception.^[16]

This level of detail is atypical among constitutional clauses. As Chief Justice Marshall famously noted in M’Culloch v. Maryland, to function properly, the Constitution must not “partake of the prolixity of a legal code.”^[17] But some of it—like the Presentment Clause—does just that.^[18]

Even more prolix are the original Constitution’s procedure for electing Presidents and Vice Presidents^[19] and the Twelfth Amendment procedure that replaced it.^[20] These provisions specify precisely where and how the Electoral College votes, how the votes are recorded and transmitted, how the votes are counted, and (if nobody wins a majority) the intricacies of conducting contingent elections.^[21] Consider the Twelfth Amendment:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.^[22]

This long paragraph is a completely different species of constitutional provision from, say, the short and vague Interstate Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States . . . .”).^[23] It does provide some structure, empowering the House and Senate respectively to choose the President and Vice President when the Electoral College is deadlocked.^[24] But like the Presentment Clause, the verbiage of the Twelfth Amendment is devoted mainly to a long series of precise procedural details.^[25]

Completing the list of wordy hardwired procedures are Sections 3 and 4 of the Twenty-Fifth Amendment.^[26] Structurally, these provisions allocate authority to the President, Vice President, Cabinet, and Congress to handle issues of presidential disability. But yet again, the provisions use their considerable bulk to provide detailed procedures for the initial transfer of power to the Vice President, for the President’s retaking of power, and for the resolution of disputes about the President’s incapacity.^[27]

Speaking quantitatively, the hardwired provisions mentioned above represent 18% of the word count of the entire Constitution, which contains hundreds of other clauses.^[28] By contrast, the amendments in the Bill of Rights have an average length of just forty-six words apiece.^[29] (The Constitution also contains a sprinkling of shorter hardwired procedures, such as the congressional journal requirement^[30] and the presidential oath,^[31] among many others.)

B. Delegated Procedures

A different type of procedural provision in the Constitution uses structure to settle procedure. Rather than hardwire into the Constitution a procedure for how something will be done, these provisions specify who designs the procedure. The details are left to the designers’ discretion. These provisions are structural in one sense—they are allocating powers and duties. But because they are creating structures about procedures, they also represent another type of procedural provision.

An obvious example is the Rules Clause: “Each House may determine the Rules of its Proceedings . . . .”^[32] In contrast to the hardwired procedure for finalizing legislation discussed above,^[33] the procedures for almost everything else that the legislative branch does are left to each chamber to devise for itself.^[34] The two houses’ internal rules provide key details of legislative procedure, including committee structure, the procedural powers of the leadership, rules of debate, voting processes, and so on.^[35]

The Rules Clause also applies to the many non-legislative responsibilities that the Constitution assigns to the two chambers. Examples include choosing their officers,^[36] separating senators into three classes,^[37] judging their members’ elections and qualifications,^[38] compelling attendance,^[39] disciplining their members,^[40] conducting impeachments^[41] and impeachment trials,^[42] ratifying treaties,^[43] confirming nominations,^[44] electing Presidents and Vice Presidents when nobody wins an Electoral College majority,^[45] restoring the eligibility for office to rebels and insurrectionists,^[46] and resolving disputes over whether an incapacitated President has recovered sufficiently to retake power.^[47]

This is a good place to make an important distinction: between a constitutional process and a constitutional procedure. Each of the responsibilities listed in the previous paragraph represents a process: the officer-choosing process, the Senate class-assignment process, and so on. But procedures are just one component of a process. Take impeachment as an example. The Constitution provides a lot of details about the impeachment process, but most of it is substance: allocating the power to impeach^[48] and to try impeachments,^[49] declaring what actions by which people are impeachable,^[50] strictly limiting the consequences of an impeachment conviction,^[51] and barring presidential pardons from affecting the process.^[52] These substantive provisions tell us when there is a case, who handles the case, and what the substantive standards are for deciding the case. These substantive questions—like why the House has the power to impeach, or why members of Congress are not subject to impeachment, or what constitutes “high Crimes [or] Misdemeanors”^[53]—are key parts of the impeachment process, but they are not what this Article means by procedure.

Procedures are separate. They tell us how all these things are done. In the House, the House’s own rules determine how impeachment resolutions are processed, handled in committee, and handled on the floor.^[54] On the Senate side, the Constitution hardwires a couple of procedural details about trials (senators must be on oath or affirmation, the Chief Justice presides when the President is on trial, and a two-thirds majority is needed to convict),^[55] and the remaining details on trial procedure (like the use of subpoenas, admission of evidence, and so on) are left to the Senate to devise.^[56]

As just described, impeachment represents a combination of hardwired and delegated procedures. Another such combination is the Twenty-Fifth Amendment’s presidential-incapacity provisions. Those provisions provide hardwired procedures for contested cases, with the putatively incapacitated President on one side, the Vice President and Cabinet on the other side, and the two houses of Congress as the arbiters.^[57] Congress has a hardwired time limit, and siding against the President requires two-thirds majorities in both chambers, but the chambers themselves determine how to go about their deliberations and their decision-making processes.^[58]

Elsewhere, the Constitution delegates hybrid procedure-making power. For federal elections, the Constitution delegates the authority to create procedures to both Congress and the states. For congressional elections, states decide the “Times, Places and Manner” of congressional elections, but Congress can supersede the states via federal legislation.^[59] For presidential elections (other than for the hardwired procedures in the Twelfth Amendment^[60]), states have the power to determine the “Manner” in which their presidential electors are chosen, with Congress in charge only of the timing.^[61]

Several other Congress only clauses round out the list of delegated procedural provisions. Some examples include the Census,^[62] procedures regarding interstate full faith and credit,^[63] and multiple provisions for filling presidency-related voids.

One such presidential provision appears in the original Constitution and covers succession past the Vice President: “[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”^[64] Congress’s principal task here is to legislate a line of succession, which is not a matter of procedure as such.^[65] It also does not require much procedure to determine when a President or Vice President has died, resigned, or been removed.^[66] But “Inability” and “Disability” are another matter. Without a procedure for determining that an inability exists and another one for determining when a disability has been removed, it is very difficult to use this provision.^[67] Thus, Congress’s power to supply such a procedure—to “provide for the Case” of an incapacitated President and/or Vice President—could be very important.^[68] (Congress has never used this power to provide such procedures,^[69] but this has never been an issue because, luckily, presidential succession has never gone past the Vice President.^[70])

Two other provisions for filling presidential voids appear in the Twentieth Amendment. The original Constitution covered succession in the middle of the term but said nothing about the period between the election and the inauguration.^[71] As such, the Twentieth Amendment extended coverage using a similar formulation—if the President-Elect could not take office, the Vice President-Elect would step in, and Congress could legislate for the case of the “fail[ure] to qualify” of both the President-Elect and Vice President-Elect.^[72] For the latter, Congress has specified a line of succession but has never used its legislative power to provide procedures for declaring that a President-Elect is incapacitated and cannot take office.^[73]

Finally, the Twentieth Amendment empowers Congress to legislate a procedure for replacing dead presidential and vice-presidential candidates in contingent elections, the elections held in the House and Senate when no candidate wins an outright victory in the Electoral College.^[74] Congress has never used this power either.^[75]

C. Implicit Procedures

Sometimes the Constitution does not hardwire a procedure, nor does it explicitly assign the power to create a procedure, but rather imposes a specific duty that, to be fulfilled, requires somebody to construct a procedure. These implicit procedural provisions represent a third type of constitutional procedure.

The First Congress confronted this type of implicit constitutional procedure. Article VI of the Constitution requires federal and state legislators, executive officers, and judicial officers to take an oath or affirmation to support the Constitution.^[76] The Constitution did not provide a script for the oath^[77] and said nothing about any procedure surrounding it, nor did it specifically assign to anybody the power to create that content or procedure.^[78] In the First Congress, the unsworn assemblages of prospective representatives passed a resolution to provide for their own swearing in.^[79] Then, in the very first piece of legislation it enacted, Congress provided for everyone else’s oaths (including future members of Congress) with a law that provided the precise wording of the oath, specified who was authorized to administer it, and addressed how some oaths would be recorded.^[80]

The Constitution imposes dozens of duties, and each of them might require the construction of some procedures to effectuate them.^[81] Three such duties will suffice here. First, there is an implicit procedure in the middle of the Twelfth Amendment, which says: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the [presidential electoral] votes shall then be counted . . . .”^[82] This clause gives the President of the Senate the specific duty to open the certificates, but the Amendment’s use of the passive voice means that nobody is explicitly granted the crucial power to count electoral votes.^[83] Somebody has to, though. This especially matters when there is a dispute over the validity of a vote; somebody needs to resolve such disputes so that the count can proceed and someone can become President. Congress has claimed the power to provide procedures here through ordinary legislation, but not before things got quite messy.^[84] Even with the law, Congress’s ultimate authority here has been disputed, most recently after the 2020 election.^[85]

Article II’s implicit procedural provision on presidential incapacitation has a similarly regrettable lack of clarity. The Constitution states that “[i]n Case of the . . . Inability [of the President] to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President . . . .”^[86] This is a structural provision; simply put, it distributes power. But there is no way for presidential power to transfer here without some sort of procedure for determining and declaring that the President is suffering an “inability,” that the President has recovered, and so on. Someone must have the power to establish such a procedure. Because the Constitution left it unclear who had that power, the clause sat as a dead letter for over 175 years until the ratification of the Twenty-Fifth Amendment—despite over a dozen incidents before 1967 in which Presidents were completely incapacitated, no Vice President ever stepped in.^[87]

A final example is Article V. Congress is required to call a constitutional convention if two-thirds of the states request one.^[88] Someone (impliedly Congress) has to decide whether the states have requested a convention, define the scope of the request, determine how the convention is to be convened and funded, and so on.^[89] When amendments are proposed (either by Congress or by a constitutional convention) they “shall be valid . . . as Part of [the] Constitution” when ratified by three-fourths of the states.^[90] There is an implicit need for procedures here too, such as figuring out how to handle time limits for ratification, or the effect of state rescissions.^[91] Are these determinations to be made by the Legislative, Executive, or Judicial Branch, or some combination?

D. Conclusion

In sum, the Constitution specifies many procedures, and it does so in three ways. It can specify an explicit procedure, it can explicitly empower a delegee to specify a procedure, or it can impose a duty that implicitly requires somebody to specify a procedure.

Each of these types of constitutional procedural provisions can interact and overlap with constitutional rights or constitutional structure. Nevertheless, procedures are a distinct category unto themselves. That distinctness is the subject to which the Article now turns.

III. The Distinctness of Constitutional Procedures

Having described constitutional procedures, this Article can now compare them, as a group, to the Constitution’s substantive provisions. This comparison will suggest some ways in which procedural provisions are drafted differently, function differently, and should be interpreted differently.

A. Drafting Constitutional Procedures

1. Hardwired Procedures

As already discussed, hardwired procedures are drafted differently from other constitutional provisions.^[92] Many substantive constitutional provisions are intentionally vague, giving interpreters flexibility to adjust constitutional structures and rights as society changes, as issues arise that the framers never contemplated, and as interpretive philosophies evolve.^[93] Plenty of ink has been spilled over the relative merits and validity of “living constitutionalism,” but there is no question that the meanings of substantive provisions like the Commerce Clause and the First Amendment have evolved considerably over the centuries.^[94]

For hardwired procedural provisions, by contrast, flexibility—and thus ambiguity—is problematic and typically worth avoiding. The point of hardwiring a procedure into the Constitution is for everyone to know in advance how a particular thing is done. Processes like counting electoral votes or transferring power from an incapacitated President are too high stakes for us to make things up as we go along. Indeed, things have gone badly on those occasions when procedures had to be figured out on the fly.^[95] As such, hardwired procedures ideally will be sufficiently detailed, clear, and specific to avoid such guesswork. If they are ambiguous, it should not be by design.

2. Delegated Procedures

Delegated procedures approach clarity and ambiguity differently from both detailed hardwired procedures and vague substantive provisions. Like hardwired procedures, delegated procedures are clear and specific. But they are clear and specific about who will design the procedure, not about the procedure itself, so they can be more concise than their hardwired counterparts.

To the extent that delegated procedures do employ vague terminology, moreover, they often build in a way to resolve those ambiguities. An example of this was discussed regarding presidential “inability.”^[96] The clause leaves it unclear what exactly constitutes presidential “inability.” But by delegating to Congress the power to legislate inability procedures, the clause also delegates to Congress the power to resolve the ambiguity.

Finally, delegated procedures do not employ the sorts of flexible modifying phrases (e.g., “due process”) used in some substantive provisions. There is no inherent reason why delegated procedures must be this way. When the Constitution gave the House and Senate the power to make their own rules, for instance, there was nothing stopping the framers from requiring those rules to prioritize, say, efficiency or fairness or majoritarianism. But the framers did not draft delegated-procedure provisions that way. Sometimes they hardwired in a detail or two,^[97] but they did not add in such general, vague constraints.^[98] The result is that delegees typically have considerable discretion as to how to design their assigned procedures.

3. Implicit Procedures

The final category, implicit procedures, presents an inherent problem of drafting. By definition, these clauses produce a need for procedures, but do not say so explicitly, and do not designate a designer. In other words, the principal thing that can be said about their drafting is that it is suboptimal.

B. The Way Constitutional Procedures Function

1. Functionality in General

Procedural provisions function differently from substantive provisions. This is intrinsic in their definition; procedural provisions are procedural. As explained at the outset, substantive provisions are about who can do what, while procedural provisions are about how these things are done. Put another way, the Constitution’s substantive provisions govern the exercise of government functions, like taxation, spending, regulation, and command of the military. The Constitution’s procedural provisions are the bedrock underlying these exercises—constitutional actors must be put in place and procedural paths must be constructed so that the government can govern.^[99]

Of course, the entire Constitution is meant to be functional. The Constitution’s purpose was to create a federal government that would operate in a dual-sovereignty system more effectively than the Articles of Confederation government had.^[100] The substance—the structures and rights—in the Constitution is supposed to drive a thriving, enduring republic. This is at a macro level, though. Things like a robust taxing power or free speech are essential to our republican project, but these things are matters of degree, and for the long term. The Republic does not depend for its existence on any one particular tax law being levied or one particular speech act being protected.

Procedural provisions, by contrast, are about functionality in a deeper, more immediate, and more black-and-white sense. Without procedures for passing legislation, there is no legislation. Without procedures for electing or replacing a President, there is no President. Without legislation and a President, there is no functioning constitutional government at that moment. Alternatively, legislation or a President might be spawned by some extralegal process, harming the premise that the Republic is a constitutional one.^[101]

2. Function and Structure

Another important difference between procedural and substantive constitutional provisions is their orientation in the constitutional structure. Substantive provisions typically involve a balance: everything substantive that the Constitution provides to one entity comes at a cost to some other entity. Sometimes this is a matter of allocating power: the federal government versus the states, for instance, or Congress versus the President. Other times it is a matter of subjecting someone to a constraint: one branch checks or balances another; or Congress is given power to regulate, and regulated entities can thereby be regulated; or people are given rights, and the government’s actions are thereby limited.

For example, when the Constitution grants Congress the power to regulate interstate commerce, it does so at the expense of state power,^[102] and at the expense of those subjected to the regulations Congress devises. When the Constitution gives people the right to due process, it imposes a burden on the government to provide that due process. The result of this is a never-ending series of constitutional cases as litigants—the federal government, the states, and the people—clash over their respective powers and rights.

Procedural provisions are oriented differently. When the Presentment Clause sets out how Congress finalizes legislation, it is guiding Congress rather than simply constraining it.^[103] The procedures represent congressional obligations, but not in some zero-sum or Hohfeldian way, with the citizenry having some right on the other side of the equation.^[104]

To be sure, as mentioned above, there are substantive, structural elements to the Presentment Clause, allocating power between Congress and the President, and constraining them.^[105] But the procedural parts of the presentment process are just . . . procedural. They might reflect substantive values in an abstract sense—for instance, when they require the President to give reasons for a veto, this serves a public interest in transparency and accountability. But principally, the procedure is just telling the President how to execute a veto, not balancing or distributing or limiting his power.^[106]

Similarly, when the Constitution specifies how the Electoral College is supposed to cast and transmit its votes, it is telling the Electoral College how to vote so that there can be a President. The Electoral College process gives the states and the electors power that would otherwise have gone to other actors. But the procedures do not give the electors power at anyone else’s expense.^[107] Other than (again) promoting a general interest in transparency and accountability, the procedures are not really doing anything vis-à-vis anyone else. This lack of a central, inherent power struggle has produced a much narrower history of, or scope for, judicial review of these procedural clauses.^[108]

3. Timing

Constitutional procedures need to be set in advance. The point of procedures is to instruct people how to do a certain thing, so the procedures must be in place before that thing—like choosing or replacing a President, or finalizing legislation—can be done.

Of course, there is nothing special about legislation being forward-looking. Legislative action is inherently prospective, and any law must be passed before it can be executed. The point is that the operation of substantive constitutional clauses can wait until the need arises. Consider the Spending Clause. When the need for federal spending emerges, Congress can use its spending power to pass a law at that point.

By contrast, hardwired procedures need to be set before elementary functions can take place. There was no sure way for the First Congress simply to show up and decide for itself—and only then—how a bill would become a law, or how presidential vetoes would work. There was no sure way for the Electoral College to convene and decide for itself—and only then—how Presidents would be selected. For the new government to function, the Constitution had to hardwire these provisions, in advance and in detail.^[109]

Delegated procedural provisions have this extra-prospective quality too. For instance, the Constitution did not need to hardwire all the internal rules that the House and Senate would use to conduct their business, but it helped for the Constitution to specify in advance who would make those rules so that the First Congress could more easily constitute itself and begin to legislate.^[110] Similarly, the Constitution did not need to hardwire a presidential line of succession past the Vice President, but it was important to empower Congress to legislate one.^[111] Congress could not simply wait until there was a dead President and Vice President and try to take legislative action only then.^[112]

C. Interpretation

These differences between constitutional procedure and constitutional substance, in drafting and in function, matter when it comes time to apply procedures and resolve disagreements about their interpretation. This Section will explore some ways in which the interpretation of constitutional procedures is distinctive.

1. Text

As discussed above, compared to the Constitution’s substantive provisions, its procedural provisions are drafted with more clarity and precision, and less flexibility or ambiguity.^[113] To the extent that procedural provisions are drafted this way, an interpretive focus on the text will make more sense. People reading a procedural provision should be more likely to figure it out without having to consider extra-textual and highly contextualized notions, like “evolving standards of decency,”^[114] or “reasonable expectation of privacy.”^[115]

Of course, procedural provisions are not always drafted with perfect clarity, and oftentimes interpreters will need to look beyond the text to interpret them.^[116] This is especially true of implicit procedural provisions.^[117] But all other things being equal, interpretations of procedural provisions should tend to be more textual than interpretations of substantive provisions.

Textualism aside, it would be imprudent here to say general things about constitutional interpretation. Given the multiplicity of interpretive techniques and the disagreement among judges and scholars over which techniques are the correct ones, the rest of this Section will focus not on overarching modes of interpretation but instead on a few discrete, smaller-bore interpretive points.^[118]

2. Who Decides?

Another distinction between the Constitution’s procedural and substantive provisions concerns justiciability, and the associated legal-process question of who interprets these provisions. Procedural provisions are less likely to be reviewable in court than substantive provisions are.

A prime example comes from the impeachment-related case of Nixon v. United States.^[119] The impeachee, Judge Walter Nixon, challenged Senate Rule XI, which delegated to a Senate committee the task of hearing testimony and receiving evidence for the impeachment trial.^[120] The Supreme Court invoked the political question doctrine to hold that the Senate’s rules were unreviewable in court; any constitutional questions about impeachment-trial procedures were for the Senate to hash out on its own.^[121] (By extension, the merits of an impeachment verdict are unreviewable in court as well, but that is a matter of substance, not procedure.^[122])

Another example is Section 4 of the Twenty-Fifth Amendment. It also accords significant authority to the Vice President and the Cabinet to make an initial determination that a President is incapacitated—and, implicitly, to decide for themselves what procedures to use to reach their conclusion.^[123] If the Vice President and Cabinet make such a declaration and transfer temporary presidential power to the Vice President, the President would have a hard time seeking judicial review of the procedures they used.^[124] (Once again, the merits of the decision—whether the President is, in fact, “unable”—would be unreviewable in court too, but once again, that is a matter of substance not procedure.^[125])

There are two issues here: that political actors are interpreting the Constitution, and that courts are not. Members of Congress, Presidents, and the Executive Branch are all supposed to interpret the Constitution in the ordinary course of things. That is, Congress is not supposed to pass laws that it thinks are unconstitutional, Presidents are not supposed to sign laws they think are unconstitutional, and the Executive Branch is not supposed to enforce laws in ways that it thinks are unconstitutional.^[126] In practice, though, it can be difficult for these politicians and administrators to do anything other than be politically pragmatic, especially when they know that their decisions will be challenged in court and judges will be getting the last word in matters of constitutional interpretation anyway.^[127] But for procedural provisions, the question often is how political actors treat the Constitution when they know that their decisions will not be challenged in court, and that judges will not be getting the last word in matters of constitutional interpretation. Perhaps on such occasions they will still put politics above (constitutional) principle . . . but perhaps not.^[128] This matters.

Some constitutional procedural issues are reviewable in court. Congress’s power to regulate the manner of congressional elections, for instance, has spawned legislation leading to many consequential court cases in areas such as campaign finance.^[129] Even the hardwired procedure for enacting legislation in Article I, Section 7, has been the subject of multiple Supreme Court decisions.^[130] And of course, the courts must police the boundaries, so that government actors cannot avoid review by wrongly claiming that their actions are under a particular procedure.^[131] The point is that constitutional procedures are often unreviewable—more often than their substantive counterparts—not that they are always unreviewable.

Even when courts do get involved, their role may be smaller in cases concerning constitutional procedures. For example, the Presentment Clause allows a presidential veto to be overridden in Congress by a vote of “two thirds of [each] House.”^[132] Does that mean two-thirds of the members present and voting, or two-thirds of the total membership? Congress believed it meant the former, and the question eventually made it to the Supreme Court.^[133] Once the Court decided that Congress was right,^[134] that settled this constitutional procedural precedent for future Congresses and Presidents in a definitive way that the Court has never been able to do with, say, the Commerce or Due Process Clause. Rather than spawning a potentially limitless series of cases, with doctrine that evolves over the centuries, niggling procedural details have a better chance of teeing up discrete and decisive cases.^[135]

Constitutional procedures concerning the presidency reflect this reduced judicial role. Some of them, at least, have the potential for generating disputes that could end up in court. But disputes over these provisions rarely arise, and when they do, they tend to be settled outside of court. Electoral vote counts, for instance, could be the subject of litigation, but as a general matter, Congress has been the final arbiter of such disputes.^[136] In unquestionable cases of presidential incapacity, when power was supposed to pass to the Vice President but did not, no court ever got involved. Perhaps courts could have intervened if anyone had been bold enough to file a lawsuit, but nobody was.^[137] And now that the Twenty-Fifth Amendment assigns definitive decision-making authority to the President, Vice President, Cabinet, and Congress, courts have little, if any, role even if there are willing litigants.^[138]

To be sure, the high stakes of a presidential procedural question might require courts to get involved. For instance, Section 4 of the Twenty-Fifth Amendment does not specify whether acting secretaries are considered part of the Cabinet for purposes of declaring the President to be incapacitated and transferring power to the Vice President.^[139] If the result of an incapacity vote ever turned on whether acting secretaries’ votes count, the President and Vice President could both claim to be in charge.^[140] Congress, not the courts, is supposed to resolve disputes over the President’s incapacity, but the matter can only go to Congress if Section 4 is invoked successfully in the first place.^[141] Even if Congress asserts the power to decide the acting secretary question (as a threshold matter, to decide if the matter is properly before it), its deliberative process would take time. During that interval, it would be disastrous to have two people simultaneously claiming to have presidential power—especially if one of them is arguably unable to serve. To save the Republic from such peril, courts should interpret the Twenty-Fifth Amendment as giving them the authority to issue a swift injunction in such a situation, settling the acting secretary question once and for all.

That last example takes us from the point of this Section of the Article (that constitutional procedures entail lighter judicial review) to the point of the next Section (that the high stakes of disputes over the Constitution’s procedures can shape the proper interpretation of those provisions).

3. Collapse Prevention

A constitutional republic cannot persist unless its constitutional procedures function properly.^[142] As such, it is important for these procedural clauses to be interpreted in a way that minimizes existential threats. A simple example concerns the Twelfth Amendment and the so-called Eastman Memo. Following the 2020 presidential election, in several states that had certified Joe Biden as the winner there, Republicans submitted uncertified, alternative slates of “Trump” electoral votes.^[143] Law professor John Eastman advised Vice President Pence that those states “ha[d] transmitted dual slates of electors,” and that as a result, the Twelfth Amendment gave Pence the exclusive power to reject those states’ electoral votes for Biden.^[144]

As discussed above, the relevant text of the Twelfth Amendment (and the original Constitution, which used the same language) leaves it unclear who counts electoral votes and who resolves disputes over them.^[145] Congress’s interpretation and longstanding practice have been that it, not the Vice President, has those powers; the Vice President is a presider, not a decider.^[146] But regardless of whether it is the Vice President or the House and Senate who resolve disputes, Eastman’s notion that the “fake elector” scheme provided an adequate basis for anybody to throw out electoral votes was inconsistent with basic notions of republican democracy. Under Eastman’s interpretation of Twelfth Amendment procedure, the actual results of a presidential election would not matter in the slightest once there were fake electors afoot. Instead, every election would be determined by the whims (or worse, the complicity^[147]) of the sitting Vice President. To conclude that the Amendment’s framers had disrespected the voters’ and the states’ authority this way, one would need extremely convincing evidence from text, history, or other interpretive modalities (evidence that Eastman lacked).^[148]

Another example of this canon of collapse prevention comes with Section 4 of the Twenty-Fifth Amendment, regarding the question discussed above about whether acting Cabinet secretaries get to participate in the process.^[149] Imagine a situation in which a President has some sort of mental or physical crisis such that the Cabinet will convene to invoke Section 4 and transfer presidential power to the Vice President. To head this off, the President fires the entire Cabinet before sliding further into complete incapacity, leaving acting secretaries at the head of each department.^[150] The constitutional question of whether acting secretaries participate is a tricky one to unravel.^[151] Section 4’s text is unclear and its legislative history is contradictory.^[152] Arguments from constitutional structure point in both directions as well.^[153] But if Section 4 is to function—and, by extension, if there is to be a functioning presidency—there would need to be a way to invoke Section 4 in this situation. If the only way to avoid having either zero Presidents or two Presidents is to allow acting secretaries to vote, then that is how Section 4 would have to be interpreted, given the ambiguity of the text and drafting history, and given the imperative that the Republic endure.

4. Structure

A final distinctive feature of interpreting constitutional procedures is structural: the reduced need to balance. As discussed above, when the Constitution allocates powers and rights, there is typically something pushing back—another sovereign authority contending for power, or an entity constrained by a power or a right—whose interests must be balanced.^[154] The procedural content of constitutional provisions, by contrast, does not require this sort of counterbalancing. For them, the point is not to allocate power, authority, or rights, but rather to arrange the plumbing and gears of government so that they flow and turn smoothly.

To consider how this distinction plays out in practice, consider the Commerce Clause. In interpreting the extent of the federal power to regulate commerce among the several states, the Supreme Court has been careful (in some eras, at least) to respect the sovereignty of the states, making sure to leave something for them to regulate.^[155] Or consider free speech, a doctrine whose cases require courts to balance the interests of the speaker against the interests of the government.^[156]

By contrast, decisions about, say, pocket vetoes do not have this feature. Any court case will necessarily entail a conflict between the parties, of course, and the court will have to weigh their arguments. But in a pocket-veto case, when a court figures out when the ten-day period for Presidents to sign legislation ends, or what constitutes an adjournment, it can simply parse the constitutional text without putting so much weight on the separation of powers, or federalism, or individual rights.^[157] Once the courts render their decision on such procedural questions, Presidents and Congresses can simply conform, their respective powers none the worse for wear.

As a final example, imagine that, pursuant to Section 4 of the Twenty-Fifth Amendment, the Vice President and Cabinet have declared that the President is incapacitated, the President has declared that he disagrees, and the Vice President and Cabinet reiterate their declaration.^[158] This sends the case to Congress.^[159] Now imagine that there is a procedural question: Section 4 requires that the President’s, the Vice President’s, and Cabinet’s declarations be transmitted in writing,^[160] but one of the declarations was sent via email. Is an email a writing? Congress will need to decide that issue. But it is simply a matter of whether an email should suffice as a written declaration under Section 4. This is not about the limits of presidential power vis-à-vis congressional power, or federal power versus state power, or individual rights. It is just a straight-up question of interpretation. Congress might want to weigh all sorts of considerations (such as collapse prevention, as discussed above), but federalism, the separation of powers, and individual rights need not be among them.^[161]

D. Conclusion

The first half of this Article contended that in the Constitution, alongside structural provisions and rights provisions, procedural provisions represent a third, distinct category. Procedures are drafted differently, function differently, and get interpreted differently. The next Part of the Article will explore the way these lessons play out in a particular context: the Necessary and Proper Clause.

IV. The Necessary and Proper Clause

The Necessary and Proper Clause provides that Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”^[162] This Part of the Article will examine how the Clause might operate more expansively with procedural provisions than it does with substantive ones.

A. The Necessary and Proper Clause in General

Saying that Congress’s Necessary and Proper powers are broader for procedural provisions should not obscure the fact that they are quite broad for substantive provisions too. As the Supreme Court famously put it when interpreting the Necessary and Proper Clause in the seminal case of M’Culloch v. Maryland, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”^[163]

M’Culloch recognized several key things about the Necessary and Proper Clause. Although Article I of the Constitution gave Congress only some particular, enumerated powers, those enumerated powers represented the permissible ends of federal power, and Congress had the implicit power to employ the means needed to effectuate those ends. The Necessary and Proper Clause made this implication explicit.^[164]

Second, M’Culloch made clear that the range of allowable means was extensive; “necessary” did not mean “absolutely necessary.”^[165] To hold otherwise would have severely restricted Congress: If there were two alternative ways to effectuate a power, neither one of them alone would be absolutely necessary, so neither would be permissible. The Court rejected this notion, holding instead that “necessary” meant “any means calculated to produce the end.”^[166]

Third, M’Culloch suggested what the “proper” part of necessary and proper means: “appropriate,” “not prohibited,” and “consist[ent] with the letter and spirit of the [C]onstitution.”^[167] Improper means, then, are things that are not sufficiently connected to permissible ends,^[168] or that would violate constitutional provisions (e.g., the Bill of Rights) or structures (e.g., federalism or the separation of powers).^[169]

Today, the Necessary and Proper Clause remains close to where M’Culloch left it.^[170] Over the centuries, as courts expanded their conception of Congress’s enumerated powers, the reach of the Necessary and Proper Clause grew with them. To take the most prominent example, as the Supreme Court took a more liberal approach to the Commerce Clause, expanding the list of things it considered to be “commerce” and considered to be “interstate,” it also allowed Congress to regulate things that were not themselves interstate commerce—regulating these things was necessary and proper, because of their effect on interstate commerce.^[171] Other examples abound; the Necessary and Proper Clause is a key foundation of the federal criminal code and of the federal administrative state.^[172]

That said, the Necessary and Proper Clause is not a blank check; in some cases, the Court has struck down legislation as not “proper.” The most common reason for such findings has been federalism.^[173] For instance, in Printz v. United States, the Supreme Court rejected a federal law’s requirement that state law-enforcement officials perform background checks on prospective handgun buyers.^[174] Because this commandeering of state officials “violate[d] the principle of state sovereignty,” it was not “proper” under the Necessary and Proper Clause.^[175] Nor could the Necessary and Proper Clause save other federal laws that transgressed state sovereignty^[176] or violated the Tenth Amendment’s notion of limited federal power.^[177]

B. The Necessary and Proper Clause and Constitutional Procedures

Constitutional procedures present a different posture for the Necessary and Proper Clause. As a preliminary matter, most constitutional procedures are not tied to Congress’s “foregoing” powers in Article I, Section 8.^[178] This is not a problem; the Necessary and Proper Clause is not limited to bolstering just those “foregoing” powers. The Necessary and Proper Clause also applies to “carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”^[179]

This has two implications. Most directly, it means that the Necessary and Proper Clause can be used to flesh out clauses all over the Constitution—such as the succession provisions of Article II, and the Twelfth, Twentieth, and Twenty-Fifth Amendments—that vest powers somewhere in the federal government.^[180]

The second implication is that the Necessary and Proper Clause can apply not just to individual powers vested in some government actor, but to government power in general, in a more fundamental sense. For the federal government to function, there needs to be a President; it is literally “necessary . . . for carrying into Execution the . . . Powers vested . . . in the Government of the United States.”^[181] The Necessary and Proper Clause thus gives Congress an underlying and overarching authority to legislate to ensure that there is always someone lawfully at the helm wielding presidential power.^[182] Of course, the Constitution’s procedures for presidential selection, disability, and succession are directed toward exactly that goal. But Congress’s power to legislate goes beyond just polishing up these specific procedures. It also includes a more general authority to preserve the federal government’s ability to function at all.

Another distinctive feature of procedural provisions vis-à-vis the Necessary and Proper Clause is structural. As discussed above, procedural provisions are less likely to require balancing considerations of federalism or individual rights.^[183] Again, the principal limit on the Necessary and Proper Clause has been that laws were held not “proper” when they contravened the Constitution’s system of dual sovereignty.^[184] But as also discussed above, constitutional procedures tend not to implicate federalism or individual rights to the extent that other government functions might. As such, Congress’s Necessary and Proper powers are less confined when applied to constitutional procedures.^[185]

V. Improving Constitutional Procedures

To conclude, Part V will apply some of the principles asserted in Parts II–IV and will identify ways that Congress has used or could use its Necessary and Proper powers to improve constitutional procedures. There are far too many constitutional procedures extant—and far too many potential improvements—for this Article to even scratch the surface. A few select ones will have to suffice, all of them involving the presidency.

A. The Twelfth Amendment and Presidential Elections

Congress actually has asserted its Necessary and Proper powers in managing the Twelfth Amendment procedure for counting electoral votes. The Twelfth Amendment specifies that each state’s presidential electors “shall meet in their respective states and vote by ballot for President and Vice-President,” and then “sign . . . certify, and transmit [the votes] sealed to the seat of the government of the United States, directed to the President of the Senate.”^[186] The Amendment then provides that “[t]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”^[187]

This leaves a lot of basic details uncertain, like how electoral votes are supposed to be recorded and transmitted. Congress legislated on the form and transmission of electoral votes early on.^[188] Much less basic are crucial questions like: Who does the counting? Does the power to count votes imply a power to resolve disputes about a vote’s validity? If so, how are disputes to be resolved?

Congress has wrestled with these questions almost from the beginning of the Republic,^[189] and it has faced “problems of the electoral count” in over a dozen presidential elections.^[190] It has responded with laws such as the Electoral Count Act of 1887^[191] and the Electoral Count Reform Act of 2022.^[192] At every turn, critics have questioned the constitutionality of these statutes, saying, among other things, that Congress lacks the power under the Necessary and Proper Clause to pass them.^[193] Congress has disagreed, and members have cited Congress’s Necessary and Proper powers as the basis for enacting such statutes.^[194]

One objection to these statutes is that they do not fit under any of the allowable types of Necessary and Proper laws.^[195] Recall that the clause applies first to “the foregoing Powers,” meaning Congress’s enumerated powers in Article I, Section 8.^[196] But that section gives Congress no power to do anything related to electoral votes.^[197] The Necessary and Proper Clause also applies to “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”^[198] Critics contend that this does not apply to the Electoral College system, because elector appointment and voting is a matter of state power, and because “Government,” “Department[s],” and “Officer[s]” are references to executive and judicial authorities, not to Congress.^[199]

While it is true that members of Congress shall not hold any “Office under the United States,”^[200] the Vice President, House, and Senate are acting on behalf of the “government of the United States” when they fulfill their Twelfth Amendment duties.^[201] (Indeed, viewing Congress as part of the “government of the United States” for purposes of the Necessary and Proper Clause is the most obvious way to apply the Necessary and Proper Clause to Congress’s many important constitutional powers found outside of Article I, Section 8.^[202]) Because the Twelfth Amendment assemblage is acting on behalf of the federal government, this gives Congress the power to pass laws necessary and proper to the assemblage’s execution of its duties.^[203]

The Amendment’s use of the passive voice—saying that the votes “shall then be counted”—leaves it unclear who has the power to count the votes and the associated power to resolve disputes.^[204] But somebody must. While Congress has asserted and exercised these powers repeatedly over the years,^[205] others have argued that the powers properly reside with the Vice President as President of the Senate.^[206] But again, regardless of who has the counting and judging powers, they exercise those powers on behalf of the federal government.

Further bolstering the use of the Necessary and Proper Clause here is that the Twelfth Amendment implicates the more general need to preserve the government’s ability to function.^[207] Without some sensible manner of accurately counting electoral votes, there would be no legitimate President, and without a legitimate President, there is no proper way to “carry[] into Execution the . . . Powers vested by this Constitution in the Government of the United States.”^[208] Using the Necessary and Proper Clause to pass prospective electoral-counting legislation is a lawful and orderly way to avoid this threat. This is a good example of an area that, because it concerns a foundational procedure rather than a matter of substance, should give Congress more leeway to legislate under the Necessary and Proper Clause.^[209]

Of course, the fact that these laws fall under the Necessary and Proper Clause does not guarantee that any particular law will be “proper.” But objections to the constitutionality of the electoral-counting laws would be better directed that way—arguing not that Congress lacks the power to legislate about the Twelfth Amendment, but rather that such legislation cannot properly give Congress more than a modest, mostly ministerial role. It would be “improper” for an electoral-counting law to rob states of their sovereign, constitutional powers to choose the manner of selecting their electors, and to then choose those electors.^[210]

Thus, it is “appropriate” for federal law to regularize and coordinate states’ transmission of their electoral votes to the President of the Senate,^[211] and to provide for the handling of cases in which fake votes are submitted,^[212] or in which a state sends multiple, conflicting, but official sets of votes. But it is not appropriate for federal law to provide a Twelfth Amendment dispute procedure that allows people to gin up a “dispute” just because they are unhappy with a state’s final, official result.^[213] It is even less appropriate for the electoral-counting law to allow electoral votes to be second-guessed based on the whims of the counters, whether the counter is the Vice President or the congressional assemblage^[214]—or worse yet, a minority of the congressional assemblage.^[215] The Electoral Count Reform Act is (and the Electoral Count Act was) suboptimal on this score; it allows Congress to consider objections that an electoral vote was not “regularly given,” but it does not provide a suitably limited definition of that phrase.^[216]

To the extent, though, that a counting law is actually designed to coordinate the collection of votes, to vindicate states’ presidential choices, and to limit the ability of the Vice President or Congress to upset them, there is no such propriety problem.^[217] For instance, the Electoral Count Act provided a safe harbor provision for making a state’s resolution of any electoral disputes conclusive.^[218] The new Electoral Count Reform Act does even more to make the Twelfth Amendment procedure mainly ministerial, protecting rather than potentially undermining the states’ choices.^[219] The Act “includes a number of reforms to ensure that each state produces a single, conclusive slate of electors for Congress to count.”^[220] It also shifts the center of gravity for the resolution of bona fide disputes from Congress to the courts, providing a focused, expedited procedure there.^[221] Such provisions should be considered necessary and proper to effectuate the Twelfth Amendment process to provide the country with a legitimate presidential-election result.

B. Presidential Incapacity

1. The Twenty-Fifth Amendment

For most of the history of the Republic, despite the Constitution’s declaration that presidential power passes to the Vice President whenever the President suffers an “Inability to discharge the Powers and Duties” of his office, and despite numerous cases of presidential incapacitation, no such transfer of power ever occurred.^[222] One reason for this failure was that the Constitution did not designate a decisionmaker and did not specify any procedure for determining inability.^[223]

Congress arguably could have used its Necessary and Proper powers to legislate such procedures.^[224] One might have argued, analogous to the argument above about the electoral-counting function, that the government needs a functioning President, making such legislation necessary and proper in the general sense of making it possible to “carry[] into Execution the . . . Powers vested by this Constitution in the Government of the United States.”^[225] But Congress opted for the constitutional-amendment route. For one thing, some people noted how the Constitution contrasted Congress passing power to the Vice President (which was supposed to be automatic, such that no explicit power was assigned to Congress) with passing power past the Vice President (for which Congress was given a broad power to “provide for the case”).^[226] The possibility of somebody challenging the constitutionality of the statute was too dangerous to countenance, not least because the challenge would come in the midst of an already destabilizing struggle for power between the President and Vice President.^[227]

Reformers thus favored a constitutional amendment to “remove all doubts,” and created what became Sections 3 and 4 of the Twenty-Fifth Amendment.^[228] While the Amendment was a tremendous achievement and has considerably improved how the United States handles presidential disability, it still leaves room for Congress to use its Necessary and Proper powers to improve things further. Sections 3 and 4 vest certain powers in the President, the Vice President, the Cabinet, and Congress, all of whom would exercise those powers on behalf of the government.^[229] As such, Congress has the power under the Necessary and Proper Clause to remove some of the obstacles and potential pitfalls in Sections 3 and 4. For instance, Congress could clarify what constitutes a “written declaration” of inability or recovery.^[230]

Congress could also clarify Section 4’s troubling ambiguity about who in the Cabinet gets to vote. When Section 4 mentions the Cabinet, it refers to it as “the principal officers of the executive departments.”^[231] So, what happens if a Cabinet secretary resigns, and an acting secretary fills in?^[232] Does Section 4 mean to include such people, who typically are “principal officers” under the Appointments Clause,^[233] and who are the leaders in charge of their Cabinet departments?^[234] A contested Section 4 case could turn on whether acting secretaries count or not. This is not a question that the President, on one side, or the Vice President and Cabinet, on the other side, can decide, let alone in the middle of an actual case. It would be much better—necessary and proper—for Congress to clarify this legislatively, so that everyone involved can know in advance what to do.^[235]

On that note, Congress might also be able to use its power under the Necessary and Proper Clause to streamline judicial review. Most legal questions arising in a disputed Section 4 case would not be reviewable in court because Section 4 gives them to Congress to decide.^[236] But that would not necessarily prevent the contenders for power from turning to the courts anyway. Even if the courts eventually ruled that they had no power to hear the case, there is no time to waste when it comes to deciding who wields presidential power. The whole point of the Constitution’s succession provisions is to make it crystal clear at any given moment who is in charge. As such, in the spirit of “collapse prevention,”^[237] Congress could find it necessary and proper to expedite and focus Section 4 litigation. For instance, Congress could limit the courts’ jurisdiction to the small subset of cases in which judicial review would be appropriate. It could specify a venue, expedite Supreme Court review, and require strict time limits for all of this.^[238]

2. Non-Twenty-Fifth Amendment Situations

The Twenty-Fifth Amendment is helpful as far as it goes, but it only applies to the transfer of power from a President to a Vice President; it does not apply to disabled acting Presidents, among other cases in which there is no Vice President to whom to transfer power.^[239] But Congress’s legislative authority is much clearer here. The Succession Clause empowers Congress broadly to “provide for the Case” of succession past the Vice President.^[240]

Many commentators have called for Congress to use this power, in conjunction with its Necessary and Proper powers, to provide for those disability cases that the Twenty-Fifth Amendment leaves uncovered.^[241] One common suggestion is for Congress to legislate a procedure that mimics the Twenty-Fifth Amendment: Acting Presidents would have the same powers that Presidents get in Sections 3 and 4, and the Section 4 structure could be duplicated, with whoever is next in line after the acting President filling the role Section 4 assigns to the Vice President.^[242]

To the extent that it is awkward—potentially not “proper” vis-à-vis the separation of powers—for legislation to provide a mechanism to strip (acting) Presidents of their authority, tracking the Twenty-Fifth Amendment provides ample cover. It would be hard to argue that a procedure that closely tracks a hardwired constitutional procedure is somehow inconsistent with the Constitution’s structure.^[243] Moreover, the Amendment is designed to protect the President’s prerogatives. In Section 3 cases, the Amendment leaves it up to the President himself to decide when he should transfer power, and when he takes power back.^[244] In Section 4 cases, even though the Vice President and Cabinet initially can take the President’s powers from him, a President who feels himself to be able will retake power in short order unless the Vice President, the Cabinet, two-thirds of the House, and two-thirds of the Senate all align against him.^[245] Replicating such a procedure would provide little fodder for arguments that it is improper.

C. Section 3 of the Twentieth Amendment

A final gap in the Twenty-Fifth Amendment’s coverage is that it only applies to disabilities in the middle of a presidential term. There is no way for Section 3 or 4 of the Amendment to operate if no President-Elect and/or Vice President-Elect are able to take the oath of office on Inauguration Day.

Section 3 of the Twentieth Amendment was meant to address such Inauguration Day vacancies. The main thrust of Section 3 is to parallel succession in the middle of the term. Just as Article II provides that the Vice President steps in for the President in the middle of the term, Section 3 of the Twentieth Amendment provides that the Vice President-Elect steps in for the President-Elect at the outset of the term.^[246] And just as Article II empowers Congress to “provide for the Case” of a double vacancy in the middle of the term, with both the President and Vice President unavailable, Section 3 of the Twentieth Amendment empowers Congress to provide for the case of there being neither a President-Elect nor Vice President-Elect able to take the oath on January 20.^[247]

Section 3 of the Twentieth Amendment was a welcome addition to the Constitution, but it left important gaps. Just as the original Constitution designated no decision maker and provided no procedure for handling presidential disability, Section 3 provided no decision maker and no procedures for handling the disability of a President-Elect or Vice President-Elect.^[248] But Congress can use its powers under the Necessary and Proper Clause to provide an incapacity-declaration procedure here, so that Section 3 can actually be used if it ever needs to be.^[249] Analogous to the Twenty-Fifth Amendment’s procedures for the middle of the term, a proper preinaugural procedure would defer heavily to the President-Elect’s prerogatives.^[250]

Another point is that Section 3 describes the inability of a President-Elect or a Vice President-Elect to take office as a “fail[ure] to qualify.”^[251] The phrase was meant to cover all the many ways in which there might not be a President-Elect and/or Vice President-Elect able to take office: an unresolved election, death, renunciation of the office, disability, or the failure to meet constitutional qualifications for the Presidency.^[252] The last item on that list opens up the possibility that Congress could legislate a sensible procedure for adjudicating challenges to candidates’ qualifications—presumably in court, and ideally in a limited, focused, and expedited way.^[253]

Congress could also define what a President-Elect is for Section 3 purposes. Does someone become a President-Elect in November, when the votes from Election Day are tallied? In December, when the members of the Electoral College meet in their states and cast their votes? In January, when Congress convenes to count those votes? Section 3 does not say, and the term “President-Elect” does not appear anywhere else in the Constitution.^[254] Congress can and should use its Necessary and Proper Clause powers here to make clear what a President-Elect is, and thus when Section 3’s provisions kick in—ideally as soon after the election as possible.^[255]

VI. Conclusion

This Article has only scratched the surface of constitutional procedures. If other scholars think more about constitutional procedures as a distinct category, they will surely have many more insights and find many more features and distinctions—and have, no doubt, critiques and corrections regarding the observations made in this Article.

More importantly, if Congress has more confidence in its Necessary and Proper powers to improve constitutional procedures, it will surely find many more ways to strengthen the foundations of the Republic. One can hope, at least.

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1. See, e.g., Nicholas Fandos & Emily Cochrane, Lawmakers Back Biden’s Victory in Arizona, N.Y. Times, Jan. 7, 2021, at A1 (discussing events surrounding the electoral-vote count for the 2020 election); H.R. Res. 755, 116th Cong. (2019) (impeaching President Trump); H.R. Res. 24, 117th Cong. (2021) (impeaching President Trump a second time); H.R. Res. 863, 118th Cong. (2024) (impeaching Homeland Security Secretary Mayorkas); Katie Thomas & Roni Caryn Rabin, Troubling Facts from Physicians Undercut Trump: Steroid May Signal a Severe Case, N.Y. Times, Oct. 5, 2020, at A1 (discussing President Trump’s condition during his COVID infection); Peter Baker et al., Biden’s Lapses Are Said To Be Increasingly Common and Worrisome, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/politics/biden-lapses.html [https://perma.cc/MSP3-8GJN] (discussing President Biden’s mental decline); Peter Baker. Erica L. Green & Annie Karni, Biden Says Equal Rights Amendment Has Passed, but Does Not Force Certification, N.Y. Times (Jan. 17, 2025), https://www.nytimes.com/2025/01/17/us/politics/equal-rights-amendment-constitution-biden.html [https://perma.cc/9E56-6UJT] (discussing President Biden’s dubious claim that the Equal Rights Amendment had been added to the Constitution).

2. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1132 (1991); see also Howard W. Gutman, Academic Determinism: The Division of the Bill of Rights, 54 S. Calif. L. Rev. 295, 372–73 (1981) (tracing the structure–rights division back “at least for the past eighty years”); Aziz Z. Huq, Standing for the Structural Constitution, 99 Va. L. Rev. 1435, 1449–52 (2013) (questioning the obviousness of the rights–structure dichotomy, but in the context of finding overlap rather than detecting another category). Some scholars have written about constitutional procedures in depth, but without treating procedure as a distinct category and without challenging the rights–structure dichotomy. See generally Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361 (2004) (characterizing congressional procedure as a feature of constitutional law).

3. See Brian C. Kalt, Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment 169 (2019). More specifically, structural questions ask, “Who can do that?” or “What can they do?”, while rights questions ask, “What can or can’t the government do to them?” See id.

4. See id.

5. John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1952 (2011).

6. See, e.g., U.S. Const. amends. I–II, IV, VI–VII, IX, XIV–XV, XIX, XXIV, XXVI.

7. To take two examples, consider the beginnings of the First Amendment and the Third. Id. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .”); id. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”). The original Constitution contains a proto-Bill of Rights in Article I, Section 9, which protected some rights of slave traders, criminal defendants, and taxpayers. Id. art. I, § 9, cl. 1 (precluding Congress from stopping the slave trade until 1808 and capping taxes on it in the meantime); id. cl. 2 (protecting habeas corpus); id. cl. 3 (banning bills of attainder and ex post facto laws); id. cls. 1, 5–6 (restricting federal taxes).

8. See, e.g., id. art. I, § 8 (enumerating congressional powers); id. art. II, §§ 2–3 (listing presidential powers); id. art. III, § 2, cl. 1 (conferring judicial power).

9. See, e.g., id. art. I, § 2 (describing who gets to be, and who gets to choose, members of the House); id. § 10 (describing limits on state power vis-à-vis Congress); id. amend. XX, § 1 (structuring congressional and presidential terms).

10. See, e.g., id. art. I, § 4, cl. 1 (allocating, between the states and Congress, the power to manage congressional elections); id. art. II, § 2, cl. 2 (allocating, between the President and the Senate, treatymaking and appointment power); id. amend. X (allocating power between the federal government and the states).

11. See, e.g., Amar, supra note 2, at 1132 (discussing the Bill of Rights as structural); Huq, supra note 2, at 1449–52 (noting overlap between constitutional structure and constitutional rights).

12. U.S. Const. art. I, § 7, cl. 2.

13. Id. cl. 3.

14. Id. § 1.

15. See id. § 7, cl. 2 (establishing the President’s veto power).

16. See id.

17. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

18. See Christopher Serkin & Nelson Tebbe, Is the Constitution Special?, 101 Corn. L. Rev. 701, 751 & n.228 (2016) (making this point). While statutes are more specific than constitutional provisions as a general matter, there is a spectrum of specificity and statutes certainly can be short and vague rather than prolix and detailed. See, e.g., 15 U.S.C. § 45(a)(1) (“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”).

19. See U.S. Const. art. II, § 1, cl. 3.

20. See id. amend. XII.

21. See id. art. II, § 1, cl. 3; id. amend. XII.

22. Id. amend. XII. The Amendment also includes a sentence at the end, not quoted here, discussing eligibility for the vice presidency. Id. Questions of eligibility—who gets to do a thing—are substantive rather than procedural. See supra notes 2–4 and accompanying text.

23. U.S. Const. art. I, § 8, cls. 1, 3.

24. Id. amend XII.

25. Id.; id. art. I, § 7, cl. 2. Some commentators have classified these procedures as “structural.” See, e.g., David E. Pozen & Thomas P. Schmidt, The Puzzles and Possibilities of Article V, 121 Colum. L. Rev. 2317, 2335 (2021).

26. U.S. Const. amend. XXV, §§ 3–4.

27. Id.

28. The Constitution as amended contains 7,302 words, excluding headings and the signature block. The hardwired procedures discussed above total 1,289 words. See supra notes 12–27 and accompanying text.

29. See U.S. Const. amends. I–X.

30. Id. art. I, § 5, cl. 3.

31. Id. art. II, § 1, cl. 8.

32. Id. art. I, § 5, cl. 2.

33. See supra text accompanying notes 12–13.

34. U.S. Const. art. I, § 5, cl. 2. Article I does hardwire some other, minor requirements, such as the journal requirement and the public accounting requirement. See id. § 5, cl. 3; id. § 9, cl. 7.

35. See generally Jason A. Smith, Constitution, Jefferson’s Manual, and Rules of the House of Representatives of the United States, H.R. Doc. No. 117-161 (2023) (providing the House’s internal rules); Comm. on Rules & Admin., Standing Rules of the Senate, S. Doc. No. 113-18 (2013) (providing the Senate’s internal rules).

36. U.S. Const. art. I, § 2, cl. 5; id. § 3, cl. 4.

37. Id. § 3, cl. 2.

38. Id. § 5, cl. 1.

39. Id.

40. Id. cl. 2.

41. Id. § 2, cl. 5.

42. Id. § 3, cl. 6.

43. Id. art. II, § 2, cl. 2.

44. Id.

45. Id. amend. XII.

46. Id. amend. XIV, § 3.

47. Id. amend. XXV, § 4.

48. Id. art. I, § 2, cl. 5.

49. Id. § 3, cl. 6.

50. Id. art. II, § 4.

51. Id. art. I, § 3, cl. 7.

52. Id. art. II, § 2, cl. 1.

53. Id. § 4.

54. See id. art. I, § 5, cl. 2. See generally Smith, supra note 35 (providing the House’s internal rules).

55. U.S. Const. art. I, § 3, cl. 6. One could argue that the two-thirds majority requirement is substantive rather than procedural. Again, the boundaries between these categories are not always clear.

56. Id. § 5, cl. 2; see Nixon v. United States, 506 U.S. 224, 236–38 (1993) (holding that Senate impeachment-trial procedures are nonjusticiable).

57. U.S. Const. amend. XXV, § 4.

58. Id.; id. art. I, § 5, cl. 2.

59. Id. § 4, cl. 1. The Constitution carves out one exception, though: Congress cannot determine the place of Senate elections. Id.

60. See supra text accompanying note 22.

61. U.S. Const. art. II, § 1, cls. 2, 4; see Bush v. Gore, 531 U.S. 98, 104 (2000).

62. U.S. Const. art. I, § 2, cl. 3.

63. Id. art. IV, § 1.

64. Id. art. II, § 1, cl. 6, amended by, U.S. Const. amend. XXV.

65. There are procedures associated with the implementation of the line of succession, though. See, e.g., 3 U.S.C. § 19 (requiring people to resign from their offices before becoming acting President).

66. See id. § 20 (providing a simple process for presidential and vice-presidential resignations and renunciations of office). Conceivably, there could be a dispute over whether a President is actually dead or not. Cf. Brian C. Kalt, Of Death and Deadlocks: Section 4 of the Twentieth Amendment, 54 Harv. J. on Legis. 101, 138 (2017) (discussing brain-death ambiguities in the context of contingent presidential elections).

67. The preceding constitutional clause, which mandates that the Vice President step in when the President suffers an inability, U.S. Const. art. II, § 1, cl. 6, showed what happens when there is no process. See infra text accompanying notes 86–87.

68. U.S. Const. art. II, § 1, cl. 6, amended by, U.S. Const. amend. XXV.

69. See John D. Feerick, The Problem of Presidential Inability—Will Congress Ever Solve It?, 32 Fordham L. Rev. 73, 120 (1963). While the Twenty-Fifth Amendment provides a process for determining when to transfer power because of presidential incapacity, it only applies to transfers from the President to the Vice President, not to transfers further down the line of succession. See U.S. Const. amend. XXV, §§ 3–4.

70. On one occasion, Vice President George H.W. Bush was serving as acting President for a few hours while President Ronald Reagan was having surgery. During that brief interval, Bush knocked himself unconscious when he tripped during a tennis game. He was revived before power had to transfer further down the line. See Roy E. Brownell II, Vice Presidential Inability: Historical Episodes That Highlight a Significant Constitutional Problem, 46 Presidential Stud. Q. 434, 434–35 (2016).

71. See U.S. Const. art. II, § 1, cl. 6, amended by, U.S. Const. amend. XXV; Brian C. Kalt, A Distinct System for Presidential Succession on Inauguration Day: Getting the Most Out of Section 3 of the Twentieth Amendment, 46 Cardozo L. Rev. 307, 323–25 (2024).

72. See U.S. Const. amend. XX, § 3.

73. Incapacitation is a type of “failure to qualify.” See Kalt, supra note 71, at 318–19, 352, 365–66.

74. See U.S. Const. amend. XX, § 4.

75. See Kalt, supra note 66, at 118, 138 (analyzing Section 4 of the Twentieth Amendment).

76. U.S. Const. art. VI, cl. 3.

77. By contrast, the Constitution provides a script for the presidential oath. Id. art. II, § 1, cl. 8.

78. Id. art. VI, cl. 3.

79. See David P. Currie, The Constitution in Congress: The First Congress and the Structure of Government, 1789–1791, 2 U. Chi. L. Sch. Roundtable 161, 170 (1995).

80. See Act of June 1, 1789, ch. 1, 1 Stat. 23, 23–24. There is some debate about Congress’s power to prescribe standards for the oaths taken by state officials, but Congress believed that “Article VI itself implicitly authorized Congress to implement its provisions.” Currie, supra note 79, at 171.

81. See, e.g., U.S. Const. art. I, § 2, cl. 3 (requiring apportionment of representatives and direct taxes by population); id. cl. 4 (requiring governors to issue writs of election for House vacancies); id. § 9, cl. 2 (allowing the suspension of habeas corpus when required for public safety in cases of rebellion or invasion); id. cl. 7 (requiring periodic accounting of government revenue and expenditures); id. art. II, § 2, cl. 1 (requiring heads of executive departments to provide written opinions to the President upon his demand); id. § 3 (requiring the President to report on the State of the Union and recommend legislation); id. (requiring the President to commission federal officers); id. art. IV, § 2, cls. 2–3 (requiring states to extradite criminal fugitives and return escaped slaves); id. § 4 (requiring the federal government to protect states from invasions and domestic violence when requested); id. amend. XIV, § 2 (requiring apportionment of representatives, including reduction of representation for undue disenfranchisements); id. amend. XVII (requiring governors to issue writs of election for Senate vacancies).

82. Id. amend XII.

83. Id.

84. See infra text accompanying notes 189–93.

85. See infra text accompanying notes 143–44.

86. U.S. Const. art. II, § 1, cl. 6.

87. See Kalt, supra note 3, at 30–40 (recounting cases).

88. U.S. Const. art. V.

89. See id.; Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 732–38 (2011) (discussing Congress’s ministerial role).

90. U.S. Const. art. V.

91. See Robert Hajdu & Bruce E. Rosenblum, The Process of Constitutional Amendment, 79 Colum. L. Rev. 106, 108 (1979).

92. See supra Section II.A.

93. See Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 Const. Comment. 427, 455 (2007) (“[C]onstitutional framers and ratifiers very often use open-ended language that quite deliberately delegates questions of application to future interpreters . . . . The 1787 Constitution contains many artful silences and decisions by its framers to agree to disagree.”).

94. Id. at 431–33, 484.

95. Leading examples include the Elections of 1876 and 2000, and the incapacitations of Presidents Garfield and Wilson. See Michael F. Holt, By One Vote: The Disputed Presidential Election of 1876, at 205–08 (2008); Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, When Elections Go Bad: The Law of Democracy and the Presidential Election of 2000, at 1, 24–25 (2001); Kalt, supra note 3, at 32–35 (discussing Garfield and Wilson).

96. See supra text accompanying notes 66–70.

97. See supra text accompanying notes 57–61.

98. See supra Section II.B.

99. See supra notes 6–11 and accompanying text.

100. See Louise Weinberg, Of Sovereignty and Union: The Legends of Alden, 76 Notre Dame L. Rev. 1113, 1155 (2001).

101. See Kalt, supra note 71, at 337–38 (discussing a gap in the Constitution’s coverage of presidential succession and noting Henry Cabot Lodge’s lament that, while the country would find some solution if the need arose, it “would have to be extra-constitutional” (quoting Henry Cabot Lodge, The Senate, 34 Scribner Mag. 541, 543 (1903))).

102. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203–04 (1824).

103. See U.S. Const. art. I, § 7, cl. 2.

104. See Heidi M. Hurd & Michael S. Moore, The Hohfeldian Analysis of Rights, 63 Am. J. Juris. 295, 299–300 (2018).

105. See supra text accompanying notes 14–15.

106. U.S. Const. art. I, § 7, cl. 2.

107. Id. art. II, § 1, cls. 2–3.

108. See infra Section III.C.2.

109. U.S. Const. art. I, § 7; id. art. II, § 1, cl. 3.

110. See id. art. I, § 5, cl. 2.

111. See id. art. II, § 1, cl. 6.

112. In addition to there being a general need to have a President at the helm, it would be impossible without a President to present new legislation for a signature or veto. Rather than simply throw up its hands and give up on having a functional government, Congress could take extralegal action at that point. See supra text accompanying note 101. But this Article means to analyze how the Constitution works, not what replaces the Constitution when it falls apart.

     As a general matter, it also can be much harder to reach a legitimate consensus when the veil of ignorance has been ripped away, and all parties know who benefits and who suffers from each particular choice. Cf. Kalt, supra note 66, at 123 (explaining why, in a scenario under Section 4 of the Twentieth Amendment, it would be very challenging to legislate a solution on the fly).

113. See supra Sections II.A–B.

114. Trop v. Dulles, 356 U.S. 86, 100–01 (1958).

115. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).

116. See, e.g., supra text accompanying notes 82–85 (discussing poor drafting in the Twelfth Amendment).

117. See supra Section III.A.3.

118. Cf. Kevin M. Stack, The Divergence of Constitutional and Statutory Interpretation, 75 U. Colo. L. Rev. 1, 56–57 (2004) (declining to commit to an interpretive theory, in an article about reasons to interpret statutes and constitutional provisions differently).

119. Nixon v. United States, 506 U.S. 224, 226 (1993).

120. Id. at 227–28.

121. Id. at 228, 237–38.

122. See id. at 253–54 (Souter, J., concurring).

123. See U.S. Const. amend. XXV, § 4.

124. See Nixon, 506 U.S. at 228 (“A controversy is nonjusticiable—i.e., involves a political question—where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department . . . .’” (quoting Baker v. Carr, 369 U.S. 186, 217 (1962))).

125. See Kalt, supra note 3, at 25.

126. See U.S. Const. art. VI, cl. 3.

127. See generally Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 Duke L.J. 1335 (2001) (discussing ways in which political considerations shape Congress’s role as a constitutional interpreter).

128. See Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies 163 (2012).

129. See, e.g., Buckley v. Valeo, 424 U.S. 1, 90 (1976) (per curiam).

130. See, e.g., Pocket Veto Case, 279 U.S. 655, 672–74 (1929); Wright v. United States, 302 U.S. 583, 586 (1938).

131. For instance, in Powell v. McCormack, the Supreme Court recognized that the House of Representatives had an unreviewable power to judge the qualifications of its members, but that the House’s power was limited to those qualifications provided by the Constitution; if the House was imposing other qualifications, there was no barrier to judicial review. See Powell v. McCormack, 395 U.S. 486, 521–22, 548 (1969).

132. See U.S. Const. art. I, § 7, cl. 2.

133. Mo. Pac. Ry. Co. v. Kansas, 248 U.S. 276, 284 (1919).

134. Id. at 285.

135. Another example of a constitutional procedure that was adjudicated—and then settled for all time by the Court—is Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 379, 382 (1798) (interpreting Article I, Section 7 to not require Congress to present constitutional amendments it proposes to the President for approval).

136. See infra text accompanying notes 189–94. The momentous decision in Bush v. Gore could be considered an exception, as noted in dissent in that case by Justice Breyer. Bush v. Gore, 531 U.S. 98, 154–55 (2000) (Breyer, J., dissenting). Bush aside, even though courts have an important role in election litigation, the point is that Congress is the final arbiter.

137. See, e.g., Kalt, supra note 3, at 29–36 (chronicling instances of presidential incapacity before the enactment of the Twenty-Fifth Amendment).

138. See supra text accompanying notes 123–25; U.S. Const. amend. XXV, § 4.

139. See U.S. Const. amend. XXV, § 4.

140. See Kalt, supra note 3, at 148–52.

141. See id. at 148–49, 151.

142. See supra Section III.B.

143. See Alan Feuer & Katie Benner, A Broad, Convoluted Plan to Create Bogus Electors: A Brazen Plot Explained, N.Y. Times, July 28, 2022, at A13.

144. See Jamie Gangel & Jeremy Herb, Memo Shows Trump Lawyer’s Six-Step Plan for Pence to Overturn the Election, CNN (Sep. 21, 2021), https://www.cnn.com/2021/09/20/politics/trump-pence-election-memo/index.html [https://perma.cc/56TL-9325]; Memorandum from John Eastman on January 6 Scenario, http://cdn.cnn.com/cnn/2021/images/09/20/eastman.memo.pdf [https://perma.cc/NY83-SE53]; Joseph M. Bessette, A Critique of the Eastman Memos, Claremont Rev. Books, Fall 2021, at 16, 18–19, https://claremontreviewofbooks.com/critique-eastman-memos/ [https://perma.cc/NR62-GDY3] (discussing this episode).

145. See supra text accompanying notes 81–85.

146. See infra notes 205, 214 and accompanying text.

147. In all but two of the last ten elections, the sitting Vice President was a candidate for either President or Vice President (the exceptions were 2008 and 2016). Joseph M. Bessette & Gary J. Schmitt, Am. Enter. Inst., Counting Electoral Votes: How the Constitution Empowers Congress—and Not the Vice President—To Resolve Electoral Disputes 7 (2023). But see Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Mia. L. Rev. 475, 476–77, 522 (2010) (noting how, despite being the sitting Vice President, Al Gore conceded—and presided over the counting of—his defeat in 2000); Robert J. Delahunty & John Yoo, Who Counts?: The Twelfth Amendment, the Vice President, and the Electoral Count, 73 Case W. Rsrv. L. Rev. 27, 122–24 (2022) (finding no problem with the Vice President resolving disputes to which she is a party).

148. See Bessette, supra note 144. Even scholars who have argued for the unilateral power of the Vice President to decide disputes over electoral votes have paired this conclusion with strict limits on what can be considered a valid dispute. See, e.g., Delahunty & Yoo, supra note 147, at 136–37.

149. See supra text accompanying notes 139–40.

150. See 5 U.S.C. § 3345 (providing rules for transfer of departmental authority to acting secretaries).

151. See Kalt, supra note 3, at 148–52 (attempting such an unraveling).

152. See id. at 62–64.

153. See id. at 150.

154. See supra Section III.B.

155. See, e.g., United States v. Lopez, 514 U.S. 549, 564 (1995); United States v. Morrison, 529 U.S. 598, 617–18 (2000).

156. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 967 (1987).

157. See, e.g., Pocket Veto Case, 279 U.S. 655, 679–80 (1929); Wright v. United States, 302 U.S. 583, 588 (1938).

158. See U.S. Const. amend. XXV, § 4.

159. See id.

160. See id.

161. Alternatively, Congress might base its decision entirely on extralegal considerations, like whether they would prefer the President or the Vice President to be in charge. See supra Section III.C.2. This would reflect substance—specifically, the allocation of power in Section 4—but it would not change the fact that the question on the merits (whether an email counts as a writing) is not a question connected even remotely to the separation of powers.

162. U.S. Const. art. I, § 8, cl. 18.

163. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420–21 (1819).

164. See id. The Necessary and Proper Clause also applies to other powers assigned to federal actors in the Constitution, not just Congress’s enumerated powers. See infra text accompanying note 179.

165. M’Culloch, 17 U.S. (4 Wheat.) at 413–15.

166. Id. at 413–14.

167. Id. at 421.

168. See J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. Ill. L. Rev. 581, 647.

169. See Eugene Gressman, Some Thoughts on the Necessary and Proper Clause, 31 Seton Hall L. Rev. 37, 44 (2000); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 297 (1993); see also Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 217 (2003) (discussing how a law must be within Congress’s jurisdiction in a manner consistent with separation of powers, federalism, and background rights retained by the people).

170. See Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2061 (2014) (describing M’Culloch as “the lodestar for understanding” the Necessary and Proper Clause ever since the opinion was issued).

171. See, e.g., Wickard v. Filburn, 317 U.S. 111, 121, 125 (1942).

172. See Modern Necessary and Proper Clause Doctrine, Const. Annotated, https://constitution.congress.gov/browse/essay/artI-S8-C18-5/ALDE_00001240 [https://perma.cc/3CE9-UGH5] (last visited Sep. 11, 2025).

173. See Beck, supra note 168, at 584 (noting, and criticizing, the Supreme Court’s recent use of the “proper” part of the Necessary and Proper Clause as a “repository for implied principles of federalism”).

174. Printz v. United States, 521 U.S. 898, 933 (1997).

175. Id. at 923–24 (emphasis omitted).

176. See, e.g., Alden v. Maine, 527 U.S. 706, 732–33 (1999).

177. See, e.g., United States v. Morrison, 529 U.S. 598, 666 (2000) (Breyer, J., dissenting); U.S. Const. amend. X.

178. U.S. Const. art. I, § 8.

179. Id. cl. 18; John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045, 1058 (2014).

180. See Gressman, supra note 169, at 39 (noting this application of the Necessary and Proper Clause “to execute the powers that may be granted to the federal government under Article II or under Article III or any other article”); Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 561 n.115 (2004) (“This is the ‘horizontal’ component of the Sweeping [i.e., Necessary and Proper] Clause, which extends to any power vested in the federal government by the Constitution.”).

181. See Roy E. Brownell II, Vice Presidential Inability: Why It Matters and What to Do When It Occurs, 48 Hofstra L. Rev. 291, 314–15 (2019) (emphasis omitted).

182. See id.; Kalt, supra note 71, at 334, 336 (describing Necessary and Proper Clause argument made by members of Congress introducing legislation to cover a gap in the Constitution’s coverage of presidential succession); Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337, 1394–95 (2015); supra Section III.C.3. But see Delahunty & Yoo, supra note 147, at 87–88 (rejecting this interpretation of the Necessary and Proper Clause).

183. See supra Section III.B.

184. See supra text accompanying notes 173–77.

185. To be sure, some constitutional procedures might present issues with the separation of powers. Indeed, in the 1950s and 60s when Congress was debating the procedures that became Sections 3 and 4 of the Twenty-Fifth Amendment, this was an important reason why Congress chose to amend the Constitution rather than enact ordinary legislation. See infra text accompanying note 243.

186. U.S. Const. amend. XII.

187. Id.

188. See Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1664–69 (2002) (describing law passed in the Second Congress).

189. See Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 Va. L. Rev. 551, 601–03 (2004) (discussing Vice President Jefferson’s role in his own election in 1801); Delahunty & Yoo, supra note 147, at 93–103 (discussing Founding-era practices and disputes).

190. Kesavan, supra note 188, at 1664. Kesavan provides a helpful catalog of the incidents that occurred before 2000. See id. at 1679–94. Some of these problems related to the bygone problem of state admission, specifically the timing of a state’s admission vis-à-vis its choice of presidential electors; before the Electoral Count Act of 1887, Congress defined its authority in these cases in an ad hoc and inconsistent manner. See id. at 1680–87. The most recent examples, of course, are the elections of 2000 and 2020. See Kesavan, supra note 188, at 1659–60; Feuer & Benner, supra note 143.

191. Act of Feb. 3, 1887, ch. 90, 24 Stat. 373, amended by, Electoral Count Reform Act of 2022, Pub. L. No. 117-328, 136 Stat. 5233.

192. Electoral Count Reform Act of 2022.

193. See, e.g., Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) About Counting Electoral Votes, 16 FIU L. Rev. 297, 318 (2022) (arguing that some parts of the Electoral Count Act exceed Congress’s Necessary and Proper powers); Kesavan, supra note 188, at 1731–38 (presenting author’s own argument); id. at 1738–43 (presenting historical arguments); Beverly J. Ross & William Josephson, The Electoral College and the Popular Vote, 12 J.L. & Pol. 665, 714–15 (1996). Some believe that the law is not unconstitutional per se but is also merely advisory. See Cass R. Sunstein, The Rule of Law v. “Party Nature”: Presidential Elections, the Constitution, the Electoral Count Act of 1887, the Horror of January 6, and the Electoral Count Reform Act of 2022, 103 B.U. L. Rev. 1171, 1185–86 (2023); infra note 210 and accompanying text.

194. See Kesavan, supra note 188, at 1741–42, 1741 n.366 (conceding that “these Members of Congress relied on [the Necessary and Proper] clause as the font of power to pass the Electoral Count Act” and quoting several examples); Siegel, supra note 180, at 561; see also John W. Burgess, The Law of the Electoral Count, 3 Pol. Sci. Q. 633, 646–48 (1888) (finding authority in the Necessary and Proper Clause to pass the Electoral Count Act); David P. Currie, The Constitution in Congress: The Second Congress 1791–1793, 90 Nw. U. L. Rev. 606, 617–20 (1996) (discussing sentiments among members of the Second Congress); Edward B. Foley, Preparing for A Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, 51 Loy. U. Chi. L.J. 309, 326–27 (2019) (noting dominance of the view that the Necessary and Proper Clause empowers Congress to provide a mechanism for the resolution of electoral-vote disputes).

195. See, e.g., Kesavan, supra note 188, at 1731–38; Ross & Josephson, supra note 193, at 714–15.

196. U.S. Const. art. I, § 8, cl. 18; see Ross & Josephson, supra note 193, at 714–15.

197. See U.S. Const. art. I, § 8.

198. Id. cl. 18.

199. See, e.g., Delahunty & Yoo, supra note 147, at 88–90; Kesavan, supra note 188, at 1732–38.

200. See U.S. Const. art. I, § 6, cl. 2 (distinguishing members of Congress from officers of the United States).

201. U.S. Const. amend. XII.

202. Some of Congress’s other powers include providing for the Census, id. art. I § 2, cl. 3; regulating federal elections, id. § 4; providing a line of presidential succession, id. art. II, § 1, cl. 6; vesting appointment power for inferior officers, id. § 2, cl. 2; providing for federal criminal trials in Washington, D.C., and the territories, id. art. III, § 2, cl. 3; and enforcing key amendments, id. amends. XIII–XV, XXIII, XXIV, XXVI.

     To the extent that the Necessary and Proper Clause is redundant—that even without it, Congress already had the implicit power to effectuate the ends of the Constitution—it might not matter whether things fit within the precise terms of the Necessary and Proper Clause or not. See The Federalist No. 33, at 201–03 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (contending that the Necessary and Proper Clause is merely “declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers”); supra text accompanying note 164.

203. See supra note 194 and accompanying text. As Representative Hilary Herbert put it in the debate on the Electoral Count Act, “[T]he Constitution vests in the Federal Government the power to count the votes . . . . [P]ower has been given, and it is perfectly plain that the Constitution vests in Congress the power to enact what legislation is necessary and proper to carry out the purposes of the provision granting the power.” See 18 Cong. Rec. 75 (1887) (statement of Rep. Herbert). But see Alexander Gigante, Hanging by a Thread: The Electoral Count Act’s Threat to America’s Democracy, 15 Gov’t L. Rev. 42, 82 (2022) (contending that the Twelfth Amendment does not bestow a “power”); Kesavan, supra note 188, at 1735–38 (same).

204. U.S. Const. amend. XII; cf. Colvin & Foley, supra note 147, at 479–80 (suggesting that the framers used the passive voice in the parallel provision in Article II because they shortsightedly “did not anticipate controversy in the electoral count”).

205. See Kesavan, supra note 188, at 1679–94, 1708 (recounting numerous occasions in which Congress proceeded as though it had the authority to rule on the validity of electoral votes). Kesavan concludes that “[t]he best interpretation as a matter of text and the better interpretation as a matter of history is that the counting function is vested in the Senate and House of Representatives.” Id. at 1709; see also Colvin & Foley, supra note 147, at 480–81 (describing Congress’s assumption of this role after 1861); Derek T. Muller, The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act, 73 Case W. Rsrv. L. Rev. 1023, 1030 (2023) (describing the way Congress used this power after amending the counting statute in 1804).

206. See, e.g., Beermann & Lawson, supra note 193, at 304–05; Delahunty & Yoo, supra note 147, at 127–28; Kesavan, supra note 188, at 1706, 1708 (citing early statesmen and scholars); see also Foley, supra note 194, at 325–26 (reviewing arguments on both sides of the question).

207. See supra text accompanying notes 181–82.

208. U.S. Const. art. I, § 8, cl. 18. The risk of having no President at all is nearly eliminated by having a robust line of succession. But it cannot be the case that it is unnecessary or improper to ensure the successful resolution of the election just because the line of succession is there as a second-best backup. To say otherwise would be to enact the “absolutely necessary” reading of the Necessary and Proper Clause that the Supreme Court rejected in M’Culloch v. Maryland. See supra text accompanying notes 165–66.

209. See supra Section III.C.3.

210. See U.S. Const. art. II, § 1, cl. 2; Delahunty & Yoo, supra note 147, at 34 (describing limitations on the discretionary power of the Vice President, who authors think has the Twelfth Amendment power to count electoral votes); supra text accompanying note 169; cf. Kesavan, supra note 188, at 1776 (“The structural coordinacy of electors and their structural independence is destroyed if Members of Congress may second-guess the electors’ judgments.”).

     Another objection to the electoral-counting laws has been that they purport to override each house’s ability to make its own rules, at least when they split from the joint assemblage to vote on challenges. To the extent that one house wants to change its rules from what the statute provides, it would have a reasonable constitutional argument for being able to do so. As such, many authorities consider the electoral-counting statutes merely advisory. See, e.g., id. at 1779–87. Given the imperative for setting procedures in advance, though, a venerable advisory statute can carry a lot of weight in the moment. See supra Section III.B.3. At the very least, as Akhil Reed Amar put it in an analogous context, electoral-counting laws “serve as a precommitment and a focal point,” such that “deviation from this clear focal point will obviously smack of changing the rules in the middle of the game.” Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap, 48 Ark. L. Rev. 215, 227 (1995) (emphasis omitted).

211. See supra text accompanying notes 163–68 (discussing M’Culloch v. Maryland’s notion of appropriateness in the Necessary and Proper Clause); see also Beermann & Lawson, supra note 193, at 318 (conceding that this part of the Electoral Count Act was constitutional under the Necessary and Proper Clause under the prevailing interpretation of the clause); James C. Kirby Jr., Limitations on the Power of State Legislatures over Presidential Elections, 27 L. & Contemp. Probs. 495, 499 (1962) (stating that legislation surrounding elections can likely be upheld as necessary and proper to “Congress’ constitutional duty to count the electoral votes”).

212. See Kesavan, supra note 188, at 1795–96 (rejecting the constitutionality of the Electoral Count Act but conceding that “[u]nder even the ‘thinnest’ conception of the counting function, the joint convention must judge the authenticity of the electoral certificate”).

213. See id. at 1661–62 (arguing that the Electoral Count Act is unconstitutional in part because of this problem); see also id. at 1671–72 (recounting Senator Pinckney’s argument in 1800 against legislation that would have given members of Congress the power to investigate and adjudge the validity of electoral votes).

214. See supra text accompanying notes 146–48.

215. Between 1865 and the passage of the Electoral Count Act of 1877, the Twelfth Amendment electoral count was governed by the so-called Twenty-Second Joint Rule, which provided that electoral votes would not be counted unless both houses voted to admit them. This gave a slim majority in just one chamber the power to throw out electoral votes. See Kesavan, supra note 188, at 1675–77. Precisely this happened in 1872 when a razor-thin House majority threw out the electoral votes cast for deceased candidate Horace Greeley, over the objection of a wide Senate majority. See Kalt, supra note 66, at 111–12. This questionable result established a problematic precedent for handling the votes of dead candidates. See id.

216. 3 U.S.C. § 15(d)(2)(B)(ii)(II); Act of Feb. 3, 1887, ch. 90, § 4, 24 Stat. 373, 374, amended by, Electoral Count Reform Act of 2022, Pub. L. No. 117-328, § 109, 136 Stat. 5233, 5237; see Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529, 1542–44 (2021) (criticizing members of Congress for reading the phrase “regularly given” too broadly).

217. As an aside, there is an unfortunate gap in the Constitution regarding the enforcement of the qualifications for the Presidency. Besides age, citizenship, and residency, see U.S. Const. art. II, § 1, cl. 5, the constitutional qualifications for being elected to the Presidency include not being impeached, convicted, and disqualified, see id. art. I, § 3, cl. 7; not being a sitting member of Congress, see id. art. I, § 6, cl. 2; not being an unforgiven insurrectionist, rebel, or traitor, see id. amend. XIV, § 3; and not having been elected too many times already, see id. amend. XXII, § 1. None of these provisions specify how they are to be enforced. Cf. id. art. I, § 5, cl. 1 (explicitly naming the House and Senate as the judges of their respective members’ qualifications). As a result, opinions differ on whether presidential qualifications are supposed to be enforced by state regulators (in granting ballot access and tallying votes), courts (in ballot-access or election-contest litigation), Congress (via the Twelfth Amendment), the voters, someone else, or some combination. See Daniel P. Tokaji, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L. Rev. First Impressions 31, 33–41 (2008) (explaining the difficulties associated with enforcing the President’s constitutional qualifications); Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 579–608 (2015) (analyzing the issue more broadly). This confusion could lead to these requirements being unenforced, as each potential enforcer thinks that a different one represents the proper authority. It would have been better for the Constitution to have delegated procedural authority here rather than leaving it to implication. See supra Sections II.B–C.

218. Act of Feb. 3, 1887, amended by, Electoral Count Reform Act of 2022, § 104; see Kesavan, supra note 188, at 1659–60 (saying that Bush v. Gore reflected the Supreme Court’s unanimous determination that this section of the Electoral Count Act was constitutional).

219. Electoral Count Reform Act of 2022.

220. Kate Hamilton, State Implementation of the Electoral Count Reform Act and the Mitigation of Election-Subversion Risk in 2024 and Beyond, 133 Yale L.J. Forum 249, 258 (2023).

221. See id. at 257; 3 U.S.C. § 5(c)–(d).

222. U.S. Const. art. II, § 1, cl. 6; see supra text accompanying note 87.

223. See, e.g., Kalt, supra note 3, at 34 (discussing case of President Wilson’s incapacity).

224. John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications 49–50 (3d ed. 2014) (noting those who believed that Congress had Necessary and Proper Clause authority to enact legislation to transfer power in the event of presidential incapacity).

225. U.S. Const. art. I, § 8, cl. 18; see supra text accompanying notes 181–82, 207–08; cf. Brownell, supra note 181, at 301–04 (positing a constitutional structural principle of ensuring government continuity and explaining the need for a continuously functioning Presidency).

226. See Herbert Brownell, Jr., Presidential Disability: The Need for a Constitutional Amendment, 68 Yale L.J. 189, 206–08 (1958); Ruth C. Silva, Presidential Inability, 35 U. Det. L.J. 139, 171 (1957).

227. Brownell, supra note 181, at 337–38 (describing legislative history).

228. Feerick, supra note 224, at 57–58.

229. U.S. Const. amend. XXV, §§ 3–4.

230. Id. § 4; see supra text accompanying note 158.

231. U.S. Const. amend. XXV, § 4. This tracks the language in Article II, which refers to “the principal Officer in each of the executive Departments.” Id. art. II, § 2, cl. 1. Given the profusion of so-called “Cabinet-level” officials, this nomenclature has caused some confusion—even in the White House itself—over whom to include in a Section 4 vote. See Kalt, supra note 3, at 179–80 (criticizing the Clinton Administration). Federal law clearly defines what is an “Executive department[]” for these purposes. See 5 U.S.C. § 101 (providing a definitive list).

232. See Kalt, supra note 3, at 148–52.

233. U.S. Const. art. II, § 2, cl. 2; id. amend. XXV, § 4; see 5 U.S.C. § 3345(a) (limiting who may serve as an acting secretary).

234. See Kalt, supra note 3, at 150.

235. See supra Section III.B (discussing the distinctive timing needs of procedural provisions). Section 4 also gives Congress a more direct power to specify who participates, so Congress does not even need to use its Necessary and Proper powers. See U.S. Const. amend. XXV, § 4 (empowering Congress to select a different body than the Cabinet to participate in the Section 4 process). But the more bases of authority Congress can point to, the more legitimacy its actions can enjoy, the less likely there are to be legal challenges, and the more quickly the courts can dispose of any challenges that do arise.

236. See supra text accompanying notes 121, 123–25.

237. See supra Section III.C.3.

238. Cf. supra text accompanying note 221 (describing similar judicial-review provisions in the Electoral Count Reform Act).

239. U.S. Const. amend. XXV, §§ 3–4.

240. Id. art. II, § 1, cl. 6; see also supra text accompanying note 226 (discussing how the Constitution treats automatic succession to the vice presidency differently from Congress’s discretionary power over succession past the Vice President).

241. See, e.g., Feerick, supra note 224, at 246, 248–49; Kalt, supra note 3, at 21; Roy E. Brownell II, What To Do If Simultaneous Presidential and Vice Presidential Inability Struck Today, 86 Fordham L. Rev. 1027, 1035–37 (2017); Second Fordham University School of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917, 958, 968 (2017) [hereinafter Succession Clinic].

242. See, e.g., Feerick, supra note 224, at 246 (noting positions of Professors Feerick and Amar); Kalt, supra note 3, at 21; Brownell, supra note 241, at 1032, 1036–37; Joel K. Goldstein, Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 1033 (2010); Succession Clinic, supra note 241, at 958–66.

243. Cf. Brownell, supra note 181, at 307 (noting, in a different context, the legitimizing effect of enacting a structure that tracks Section 4’s).

244. U.S. Const. amend. XXV, § 3.

245. Id. § 4.

246. Id. art. II, § 1, cl. 6; id. amend. XX, § 3.

247. Id. art. II, § 1, cl. 6; id. amend. XX, § 3.

248. See id. art. II, § 1, cl. 6; id. amend. XX, § 3.

249. See Kalt, supra note 71, at 365–66; John Rogan, Reforms for Presidential Candidate Death and Inability: From the Conventions to Inauguration Day, 90 Fordham L. Rev. 583, 603–04 (2021). Some might argue (analogous to a similar argument made about Article II and middle-of-the-term succession) that Congress has less power to deal with single disabilities than double disabilities, because it is given the broad power to “provide for the case” only of double disabilities. See supra text accompanying note 226.

250. See supra text accompanying notes 244–45.

251. U.S. Const. amend. XX, § 3. Section 3 separates out one type of failure to qualify for special treatment: the death of the President-Elect. Id. In that case, the Vice President-Elect swears in as President on Inauguration Day. Id. In every other case of a single or double failure to qualify, the person next in line becomes Acting President on Inauguration Day, and hands power to the rightful President or Vice President if and when the failure to qualify is resolved. Id.

252. See Kalt, supra note 71, at 346–50.

253. See supra note 217; supra text accompanying notes 221, 238.

254. See Kalt, supra note 71, at 366.

255. See id.