Tag Archives: US Constitution

Some Conservatives Want to Avoid a Coup in 2024

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One such conservative is J. Michael Luttig. You know he’s a conservative, because he clerked for Antonin Scalia, worked for Ronald Reagan and was made a federal judge by the first President Bush. After 15 years as a judge, he was Boeing’s general counsel for 13 years (2008 income = $2.8 million). He’s apparently consulting with “a number of senior Republican senators” regarding changes to the Electoral Count Act. He warned America in a piece for the NY Times today: 

The clear and present danger to our democracy now is that former President D____ T____ and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. T____ or his anointed candidate is not elected by the American people.

The convoluted language in the law gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not “lawfully certified” or “regularly given” — vague and undefined terms — regardless of whether there is proof of illegal vote tampering. After the 2020 election, Republican senators like Ted Cruz of Texas and Josh Hawley of Missouri tried to capitalize on those ambiguities in the law to do Mr. T____’s bidding, mounting a case for overturning the results in some Biden-won states on little more than a wish. Looking ahead to the next presidential election, Mr. T____ is once again counting on a sympathetic and malleable Congress and willing states to use the Electoral Count Act to his advantage.

He confirmed as much in a twisted admission of both his past and future intent earlier this month, claiming that congressional efforts to reform the Electoral Count Act actually prove that Mike Pence had the power to overturn the 2020 presidential election because of the alleged “irregularities.” The former vice president pushed back forcefully . . . 

The back-and-forth repudiations by Mr. T____ and Mr. P____ lay bare two very different visions for the Republican Party. Mr. T____ and his allies insist that the 2020 election was “stolen,” a product of fraudulent voting and certifications of electors who were not properly selected. Over a year after the election, they continue to cling to these disproved allegations, claiming that these “irregularities” were all the evidence Mr. Pence needed to overturn the results, and demanding that the rest of the G.O.P. embrace their lies. The balance of the Republican Party, mystifyingly stymied by Mr. T____, rejects these lies, but, as if they have fallen through the rabbit hole into Alice’s Wonderland, they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

While the Republicans are transfixed by their own political predicaments, and the Democrats by theirs, the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

Democrats, for their part, should regard reform of the Electoral Count Act as a victory — essential to shore up our faltering democracy and to prevent another attack like the one at the Capitol on Jan. 6, 2021. These are actually the worthiest of objectives.

Republicans should want to reform the law for these same reasons, and more. Of course, some may never support reform of the Electoral Count Act simply because the former president has voiced his opposition to the efforts to revise it. But there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington . . . [although he doesn’t mention that the Constitution (Article I, Section 4, Clause 1) gives Congress the authority to change the rules for elections].

Constitutional conservatives, especially, should want Electoral Count Act reform, because they should be the first to understand that the law is plainly unconstitutional. Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states. In fact, the Constitution gives Congress no role whatsoever in choosing the president, save in the circumstance where no presidential candidate receives a majority of the electoral votes cast.

T____ acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law. . . . No Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

If the Republicans want to prevent the Electoral Count Act from being exploited in 2024, several fundamental reforms are needed. First, Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.

Congress should also increase the number of members required both to voice an objection and to sustain one to as high a number as politically palatable. At the moment, only one member of each chamber is necessary to send an objection to the Senate and House for debate and resolution — an exceedingly low threshold that proved a deadly disservice to the country and the American people during the last election.

Currently, Congress has the power under Article II and the Necessary and Proper Clause to prevent states from changing the manner by which their electors are appointed after the election, but it has not clearly exercised that authority to prevent such postelection changes. It should do so.

Finally, the vice president’s important, but largely ministerial, role in the joint session where the electoral votes are counted should once and for all be clarified.

It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. Republicans and Democrats need to . . . fix this law before it enables the political equivalent of a civil war three years hence. The law is offensive to Republicans in constitutional and political principle, officiously aggrandizing unto Congress the constitutional prerogatives of the states. It is offensive to Democrats because it legislatively epitomizes a profound threat in waiting to America’s democracy. The needed changes, which would meet the political objections of both parties, should command broad bipartisan support in any responsible Congress. . . . 

Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

The Best Argument Against the Filibuster: It’s Unconstitutional!

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There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?

Two Questions for Those 44 Republican Senators

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I’d love to ask 44 distinguished minority members of the U.S. Senate these questions:

After hearing the evidence that shows how much effort the former president put into changing the result of the election by repeatedly lying about winning; urging his followers to “fight like hell” to protect their country by keeping him in office; putting pressure on election officials, members of his administration and Congress; calling for his supporters to come to Washington at the same time Congress was meeting to certify the election; telling the crowd — some of whom had histories of violence and had discussed plans to storm the Capitol — to march to that very building, saying he would accompany them, it being his last chance to stop Congress from certifying Joe Biden’s election, do you think the president hoped or expected that he would keep his job because the angry crowd would arrive at the Capitol and “stop the steal” by peacefully protesting the transfer of power, or that they would do something more dramatic?

After hearing the evidence above, and knowing that the president watched the riot on television for hours while failing to intervene and failing to summon help, ignoring numerous pleas to do so, while wondering why other people at the White House weren’t as excited as he was; and that he eventually told the violent mob that they were “patriots” and “special people” whom he loved, after finally telling them to go home peacefully, but never once condemning the violence, do you think he should ever be allowed to become president again?

I don’t know how the 44 Republican senators who voted this week to stop the trial, based on an absurd reading of the Constitution, would answer these questions. I assume they’ll use that reading of the Constitution to say their hands are tied. They’ll claim the Constitution just won’t allow them to convict him and disqualify him from ever holding office again. That’s even though, after being exposed to all the evidence, they could accept the verdict of the Senate that the trial is perfectly appropriate or announce that they have reconsidered their earlier vote. They could do either of those things, because, yes, it’s so often easier to think the best of people rather than the worst.

It’s Time To Fix English Again

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The House impeachment managers have submitted an 80-page “trial memorandum” explaining why the former president should be convicted in the Senate and disqualified from ever occupying a federal office again. It describes the ex-president’s lies regarding who won the election and his encouragement of the mob that attacked the Capitol. It also explains why it makes perfect sense from a legal, historical and practical perspective for the Senate to convict impeached officials even though they have left office.

In response, the creep’s lawyers have submitted a 14-page response that’s too stupid to discuss (although it will give most Republican senators an excuse to vote against conviction). 

Anyway, here’s a specific issue I want to discuss. It’s a grammatical problem with the U.S. Constitution. This is the troublesome passage:

The Senate shall have the sole Power to try all Impeachments. . . . Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States . . . 

Since you can’t remove somebody from office after they’ve left office, there seems to be a problem here. The former president’s lawyers (who are unlikely to ever receive a dime from their client) put it this way:

Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio [“from the beginning”] as a legal nullity that runs patently contrary to the plain language of the Constitution.

So, although other officials have been convicted by the Senate after they’ve left office, and barring someone from holding office again used to be the main reason for impeaching somebody, as opposed to removing them from office, and almost all experts on the Constitution say it’s totally fine to convict somebody after they’ve left office, and presidents could commit all kinds of High Crimes and Misdemeanors near the end of their term if you couldn’t convict them after they left the White House, the “plain language” of the Constitution does include that three-letter word “and”.

If only James Madison, George Washington and their colleagues had used the phrase “and/or” instead of “and”! Judgment against an official would extend to removal “and/or” disqualification. There wouldn’t be any room for confusion. The Constitution’s meaning would have been perfectly clear.

Unfortunately, nobody at the Constitutional Convention was familiar with the phrase. The first known use of “and/or” occurred in 1853, sixty-four years after the Constitution was written. 

Alternatively, the framers could have used “or” instead of “and”, giving us “removal or disqualification”. But then some lawyer would have claimed that an official can’t be removed from office and disqualified at the same time. They’d argue that the Senate would have to choose between the two options, either one or the other (understanding “or” in this case as the “exclusive or”, meaning one or the other, not both). 

In the near future, we’ll learn how all this plays out in the Senate. Nobody seems to think 17 Republican senators will agree to convict the demagogue, and without 50 Democrats and 17 Republicans voting “Yes”, he will escape judgment again.

Going forward, however, I have a suggestion. We English speakers need to adopt a single term for what’s called the “inclusive or”, i.e. the meaning of “or” that implies “this or that or both this and that”. It’s rather amazing that it took hundreds of years for somebody to invent “and/or” to do the job. But since it’s not a word — unlike hyphens, a slash isn’t ordinarily used to combine other words — we need a new word to take on this function. Perhaps unsurprisingly, I suggest “andor” without a slash. “Andor” sounds the same as “and/or” and after a while it wouldn’t look weird.

This isn’t the first time I’ve argued for a change like this. Four and a half years ago, I pointed out that we should change the way we use quotation marks. I won’t go into the details again (you can review my argument at length here), but instead of writing sentences like these:

He said “Go away.”

I can spell “cat.” 

We should write them like this:

He said “Go away”.

“I can spell “cat”.

The quotation mark should go in front of the period, not after!

So far, my quotation mark suggestion hasn’t exactly taken the world by storm. Maybe I was simply ahead of my time. At any rate, please do consider adopting my suggestion from today andor my suggestion from 2016. (See how incredibly easy that is?)

Small States and Minority Rule

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Every four years we elect a president. Almost every four years, we discuss the Electoral College. From Jesse Wegman of The New York Times:

As the 538 members of the Electoral College gather on Monday to carry out their constitutional duty and officially elect Joe Biden as the nation’s 46th president and Kamala Harris as his vice president, we are confronted again with the jarring reminder that it could easily have gone the other way. We came within a hairbreadth of re-electing a man who finished more than seven million votes behind his opponent — and we nearly repeated the shock of 2016, when Dxxxx Txxxx took office after coming in a distant second in the balloting.

No other election in the country is run like this. But why not? That question has been nagging at me for the past few years, particularly in the weeks since Election Day, as I’ve watched with morbid fascination the ludicrous effort by Mr. Txxxx and his allies to use the Electoral College to subvert the will of the majority of American voters and overturn an election that he lost.

The obvious answer is that, for the most part, we abide by the principle of majority rule. . . . 

In the last 20 years, Republicans have been gifted the White House while losing the popular vote twice, and it came distressingly close to happening for a third time this year. 

Since 2000, we’ve had six presidential elections. The candidate who got the most votes only won four of them. This year, shifting 44,000 votes to the loser in Arizona, Georgia and Wisconsin would have resulted in a 269-269 tie in the Electoral College. That would have moved the election to the House of Representatives, where each state’s delegation gets one vote, regardless of population. Since most states have Republican-majority representation in the House — even though the House has more Democrats — DDT would have presumably been re-elected, hard as that is to imagine. 

Among the comments the Times article received, one person said the Electoral College is fine, since we’re a collection of states, the United States of America, not a collection of citizens. He said it’s only fair that we pick a president based on which states the candidates win, not how many votes they get. Besides, he added, votes in the Electoral College are “roughly” assigned by population.

I don’t agree that because we’re called the United States, we should ignore majority rule when it coms to picking a president. After all, the states we live in are supposed to be “united”. But his statement about the Electoral College being “roughly” based on population made me wonder.

How would the 2020 election have turned out if votes in the Electoral College were “precisely” assigned by population, instead of “roughly”? Today, the largest state, California, gets 55 electoral votes and the smallest state, Wyoming, gets 3. But California’s population is 68 times Wyoming’s. So if the Electoral College were precisely allocated by population, California would get 204 electoral votes, not 55. Quite a difference. The next largest state, Texas, would get 150 instead of 38.

Would that have made the result in the Electoral College much different? It was surprising to see that it wouldn’t. If you do the same precise arithmetic for all 50 states and the District of Columbia, Joe Biden receives 974 electoral votes instead of 306 and DDT gets 730 instead of 232. That looks like a big difference, but the percentages are about the same. Biden would get 57.2% of the electoral votes with the precise arithmetic and 56.9% with the rough arithmetic. It works out that way because some big states, like California and New York, went for Biden and some, like Texas and Florida, went for DDT. When you average it all out, the Electoral College result would be about the same either way.

There would be a big difference, however. Big states would be much more important in the Electoral College than small states. If California got 204 electoral votes instead of 55, it would make even less difference who won a bunch of little states like Wyoming, Vermont and Alaska. In fact, assuming precise arithmetic, the 25 largest states would get 1,423 electoral votes vs. 288 for the 25 smallest. 

What this shows is that the current Electoral College is significantly skewed to benefit smaller states. Voters in those states play a bigger role than they should, based on how few of them there are. Being precise about population wouldn’t necessarily change the winner every time, but a more accurate Electoral College would reflect where people actually live in these “united” states. It would also reflect the cultural divisions in this country, since smaller states tend to be more rural.

Unfortunately, it’s not just the Electoral College that is skewed toward smaller states. According to the Constitution, each state gets as many votes in the Electoral College as it has members of Congress. Wyoming gets three electoral votes because it has two people in the Senate and one in the House of Representatives. California gets 55 electoral votes because it has two senators and 53 representatives in the House. If seats in Congress were precisely allocated by population, California would still have two senators, but it would elect almost four times as many members of the House of Representatives as Wyoming. The ratio in the House would be California’s 202 to Wyoming’s one, not 53 to one.

If the makeup of the House of Representatives isn’t unfair enough, consider the US Senate. Each state, regardless of population, gets two senators. It was designed to give small states the same representation as big states, so each state, regardless of population, gets to elect two. Maybe that made sense when there were only 13 states and they were relatively close in population. Now we have 50 states with a very wide range of populations.

In 1790, for example, the largest state, Virginia, had 13 times as many people as the smallest, Delaware. Today, as noted above, California has 68 times more people than Wyoming. Furthermore, the 50 members of the Senate from the largest 25 states represent almost 275 million people. The 50 senators from the smallest 25 states represent 49 million.

The imbalance is made even worse by the fact that the Senate is responsible for approving nominations to the Executive Branch (including all the officials in the president’s cabinet) and the federal judiciary (including the Supreme Court), as well as approving treaties. Because of the way senators were to be chosen, the authors of the Constitution assumed that members of the Senate would be more responsible than the unruly members of the House of Representatives. That’s hardly the case today.

In addition, smaller states, which tend to more rural, tend to vote for Republicans. Of the 25 largest states, 15 voted for Biden and 10 for his opponent. Of the 25 smallest, 10 voted for Biden and 15 for the other guy. That’s why the Senate is where progressive legislation goes to die and liberal nominees fall into comas waiting to be approved.

Add this all up and it’s easy to see that a Constitution written in 1789 doesn’t work very well for a large, complicated country in 2020. The Senate is skewed to benefit smaller, more Republican states, while the House of Representatives and the Electoral College, which chooses the president, are skewed the same way, although less so. This unfairness explains why Hillary Clinton could beat her opponent by 3 million votes and lose, why Joe Biden could beat the same opponent by 7 million votes but not necessarily win, and why forward-looking legislation that would make the United States a much better place to live has so little chance of success. Maybe shifting demographics will eventually help, but in the short run, we have to assume the United States will be subject to minority rule from Washington in important ways and much too often.