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When Separation of Powers Becomes a Suggestion

When Separation of Powers Becomes a Suggestion

National solutions to gerrymandering are legal, and necessary

Opinion

Alexander Hamilton portrait

The Framers, including Alexander Hamilton, argued that the federal government must play a role in regulation elections, writes Richie.

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Rob Richie
By Rob RichieOct 22, 2021
Rob Richie
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Rob Richie is president and CEO of FairVote, a nonpartisan organization seeking better elections.

Earlier this week, the Senate failed to bring the Freedom to Vote Act to the floor, the third time this year a major voting reform bill has been blocked.

As members of Congress continue their efforts to pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act in the coming weeks, some opponents aren't just rejecting the bills on their merits. Instead, they're making a historically inaccurate and dangerous "federalism argument" — that elections must be left entirely to the states.

Senate Minority Leader Mitch McConnell said last month that elections are "not something the federal government has been historically involved in" and called the Freedom to Vote Act"an assault on the fundamental idea that states, not the federal government, should decide how to run their own elections."

You don't need to look far to disprove this hide-the-ball argument. Article 1, Section 4 of the Constitution states: "Congress may at any time by Law make or alter such [election] Regulations." In "Federalist 59," Alexander Hamilton warned of the dangers of vesting voting and election laws entirely in the states, writing that "an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy."

Beyond the text of the Constitution and guidance of the Framers, the federalism argument is disproved by 200-plus years of federal election regulations. That history includes bipartisan bills that McConnell voted for, like the 2009 Military and Overseas Voter Empowerment Act, the 2006 reauthorization of the Voting Rights Act (which would effectively be revived by the John Lewis Voting Rights Advancement Act) and the 2002 Help America Vote Act that McConnell took a lead role in crafting.

In particular, there is a long history of federal law on House elections and district lines, one of the areas covered in both the Freedom to Vote Act and John Lewis Voting Rights Advancement Act. Hamilton specifically writes about this in "Federalist 59," stating that "the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives."

It's no surprise, then, that Congress has always regulated the number of members in the House of Representatives. It has set criteria for the way voters elect their U.S. representatives since at least 1842. A series of laws passed in the late 19th century and early 20th century established norms for congressional redistricting relating to contiguity, compactness, and relative population. A 1967 federal law is the reason every American is now represented by only a single member of the U.S. House. The Voting Rights Act of 1965 (re-authorized in 1982 and 2006) also sets rules around congressional redistricting.

As our Framers anticipated and as our leaders have acted upon since our nation's founding, there are times when federal election rules are needed for all Americans, typically drawing from election laws in our state "laboratories of democracy."

Now is certainly one of those times when federal action is necessary. State legislatures are incentivized to gerrymander their congressional districts in increasingly outlandish ways. Politicians choose their voters, representation is distorted, and nearly all districts are lopsided for one party. Without a national solution, individual state reforms can equate to disarming unilaterally, and too often state reforms are falling short.

Claiming that Congress should sit on its hands is wrong. If our elected leaders have good-faith reasons to vote against the Freedom to Vote Act and even the John Lewis Voting Rights Advancement Act, they should make those objections heard.

Indeed, not only do this year's bills deserve an up-or-down vote, Congress should also look to the future, with the Fair Representation Act as the most comprehensive path to make House elections fairer. This bill would replace our current tiny congressional districts with larger multimember congressional districts elected through proportional ranked-choice voting. In addition to giving voice to those in the minority and the full spectrum of voters, this approach would make it much harder to gerrymander congressional districts.

Regardless, it's time for McConnell and others to give up the false "states' rights" argument designed to avoid accountability. There is no question as to whether Congress has a role to play in regulating district lines and elections. Given the breakdown of state voting norms, it's time for Congress to do the job our Framers intended.


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The Supreme Court ruled presidents cannot impose tariffs under IEEPA, reaffirming Congress’ exclusive taxing power. Here’s what remains legal under Sections 122, 232, 301, and 201.

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Just the Facts: What Presidents Can’t Do on Tariffs Now

The Fulcrum strives to approach news stories with an open mind and skepticism, striving to present our readers with a broad spectrum of viewpoints through diligent research and critical thinking. As best we can, remove personal bias from our reporting and seek a variety of perspectives in both our news gathering and selection of opinion pieces. However, before our readers can analyze varying viewpoints, they must have the facts.


What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
  • Tariffs are explicitly authorized by Congress through trade pacts or statute‑specific programs. Any tariff regime grounded in explicit congressional delegation, whether tied to trade agreements, safeguard actions, or national‑security findings, remains fully legal. The ruling affects only IEEPA‑based tariffs.

The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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The Constitution grants states explicit authority over the "Times, Places and Manner" of holding elections, with Congress retaining only the power to "make or alter such Regulations." This was not an oversight by the framers; it was intentional design. The Tenth Amendment reinforces this principle: powers not delegated to the federal government remain with the states and the people. Advocates for nationalization often cite the Elections Clause as justification, but constitutional permission is not constitutional wisdom.

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The False Comfort of a Good Headline

A mirage can look real from a distance. The closer you get, the less substance you find. That is increasingly how Washington talks about the federal deficit.

Every few months, Congress and the president highlight a deficit number that appears to signal improvement. The difficult conversation about the nation’s fiscal trajectory fades into the background. But a shrinking deficit is not necessarily a sign of fiscal health. It measures one year’s gap between revenue and spending. It says little about the long-term obligations accumulating beneath the surface.

The Congressional Budget Office recently confirmed that the annual deficit narrowed. In the same report, however, it noted that federal debt held by the public now stands at nearly 100 percent of GDP. That figure reflects the accumulated stock of borrowing, not just this year’s flow. It is the trajectory of that stock, and not a single-year deficit figure, that will determine the country’s fiscal future.

What the Deficit Doesn’t Show

The deficit is politically attractive because it is simple and headline-friendly. It appears manageable on paper. Both parties have invoked it selectively for decades, celebrating short-term improvements while downplaying long-term drift. But the deeper fiscal story lies elsewhere.

Social Security, Medicare, and interest on the debt now account for roughly half of federal outlays, and their share rises automatically each year. These commitments do not pause for election cycles. They grow with demographics, health costs, and compounding interest.

According to the CBO, those three categories will consume 58 cents of every federal dollar by 2035. Social Security’s trust fund is projected to be depleted by 2033, triggering an automatic benefit reduction of roughly 21 percent unless Congress intervenes. Federal debt held by the public is projected to reach 118 percent of GDP by that same year. A favorable monthly deficit report does not alter any of these structural realities. These projections come from the same nonpartisan budget office lawmakers routinely cite when it supports their position.

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Americans are watching a government that seems to have lost its balance. Decisions shift by the hour, explanations contradict one another, and the nation is left reacting to confusion rather than being guided by clarity. Leadership requires focus, discipline, and the courage to make deliberate, informed decisions — even when they are not politically convenient. Yet what we are witnessing instead is haphazard decision‑making, secrecy, and instability.

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