Thomas A. Smith (University of San Diego School of Law) has posted Waking the Giant: Remedy, the Executive, and the Guarantee Clause on SSRN. Here is the abstract:
In a companion essay I argued that the Guarantee Clause secures the rule of law in the states, and that a federal court may enforce a state’s compliance with its own constitution. That essay established the right but said almost nothing about the remedy, and the remedy is where the difficulty has always lain. This Essay supplies it. The enforcement architecture of the earlier piece rested on the courts and on Congress and omitted the third branch; yet the remedy, in its hardest form, is executive. A court may declare a cancelled election void, but it cannot run the election or move a governor determined to defy it. That task falls to the President, whose only present instrument for it is borrowed from the Insurrection Act and the precedent of Little Rock, under which the executive enforces a federal court’s order without itself judging what republican government requires. The Essay then proposes enabling legislation grounded in the Guarantee Clause rather than in Section 5 of the Fourteenth Amendment. Such a statute would furnish the manageable standard whose absence Rucho found fatal and arrange the remedies from declaratory relief through federal supervision of the election. Its least expected feature is that it would discipline the Insurrection Act rather than merely invoke it, binding the President more tightly than the law now binds him. So enforced, the guarantee may be made to work within the rule of law it exists to protect.
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