Seizing the Day

Will Trump invoke the Guarantee Clause to impose election integrity? A prediction.

The Guarantee Clause (U.S. Const. art. IV, § 4) states: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

It has long been interpreted as requiring states to maintain governments based on majority rule through regular elections and popular sovereignty, while prohibiting monarchy, aristocracy, dictatorship, or permanent military rule (even if adopted by majority vote). It does not, however, prescribe specific details of election procedures, voting qualifications, or structures like primaries or redistricting. Presumptively, however, votes must be counted honestly to qualify as republican government.

Supreme Court precedent (starting with Luther v. Borden, 48 U.S. (7 How.) 1 (1849)) has generally treated Guarantee Clause claims as nonjusticiable political questions committed to the political branches (Congress and the President), not the courts. This view was reinforced in cases like Pacific States Telephone & Telegraph Co. v. Oregon (1912) and Colegrove v. Green (1946).

Enforcement historically occurred through Congress (e.g., Reconstruction-era legislation and seating/exclusion of representatives) or presidential action in crises.

The Constitution simply says that “the United States” shall guarantee states a republican form of government. It doesn’t say how, or what process is involved, or how the duty/authority is allocated within the United States government. Many people will argue that the president should execute laws passed by Congress for this purpose, but it doesn’t say that. It says “the United States.” Plausibly, in acting to protect a republican form of government — as defined above — the President would be executing a policy laid out in the Constitution, and would not require policy from Congress to authorize his action. Congress could, under its “necessary and proper” power in Article 1 section 8, clause 18 “to 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,” make rules for how the President could act in executing that power, but it need not do so, nor has it.

So if President Trump announces that we have uncovered massive electoral fraud — as he almost certainly will — and that he is dispatching huge numbers of federal election watchers to oversee voting and counting in areas where fraud has occurred, he would be acting directly under a power that the Constitution has vested in him. For a state to have a “republican form of government,” it must have meaningful elections, and elections that are rigged are not meaningful. Stopping them from being rigged would be protecting a republican form of government. Congress has passed other election laws, mostly for reasons of combating race discrimination, but those aren’t strictly applicable to these circumstances.

Will Trump do that? I have no insider information. But thinking about this today, I think it’s what I would do. One could even argue that widespread, decisive election fraud is itself effectively an insurrection, justifying action on that basis. (Probably the best argument against invoking the clause is that many in the press will — deliberately or out of actual ignorance — confuse the small-r “republican form of government” with the Republican Party because of course.)

The extent of presidential authority here is largely uncharted ground, as is the Guarantee Clause itself to a large degree. Courts have, as noted above, held it non-justiciable, meaning that all decisions are left to the political branches, Congress and the President. Trump’s timing is probably calculated to allow the usual frivolous lower court injunctions that seem to be aimed at anything he does to be overturned before the midterms; he might also simply ignore such injunctions, as an obvious judicial overstep in an area that courts have stayed out of since Luther v. Borden.

As in everything on this subject, he will have plausible arguments and there’s no such thing as a clearly winning argument either way, due to lack of precedent.

Will Trump be this bold? I suspect he feels vindicated by all the evidence of fraud that has come out, and wants to strike hard at his enemies. (Who, ironically, would have had an easier time of it if Trump had just won in 2020). As Napoleon said, the tools belong to the man who can use them.

Anyway, these are my, somewhat half-baked thoughts, though the Guarantee Clause itself has never had the chance to fully bake. From a professional standpoint, I kind of hope Trump does invoke it. The Guarantee Clause has always fascinated me, and I’d love to see it get some attention. Stay tuned.