[This is the four installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about
Officers of the United States." The second installment focused on Justice Jackson's colloquies about "Office under the United States." The third installment focused on Justice Kavanuagh's colloquies about Griffin's Case and Justice Barrett's questions about federal courts. This fourth installment focuses on questions from Justices Kagan and Sotomayor about the proper line between federal oversight and state regulations.]
There was a tension in yesterday's oral argument in Trump v. Anderson. On the one hand, there was a consensus from the bench that states have the power to impose qualifications on their own state officials. On the other hand, there was a consensus from the bench that a fifty-state solution for electing the presidency, as Akhil Amar described it, would be a terrible idea. Justices Sotomayor and Kagan, in particular, recognized this line between federalism and national power. There is a way to reconcile these doctrines. And, perhaps to no one's surprise, Jonathan Mitchell resisted any effort to reconcile these doctrines. He was wedded to his concept of complete preemption. Tillman and I anticipated this issue, and offered just such a reconciliation in our article.
