Vice President vs President of the Senate

President Cheney has made a very interesting point. (By "president" I'm referring to his role in the Senate.) He is claiming that his office--the dual office of Vice President of the United States and President of the Senate--is immune to restrictions placed on the Executive Branch, because it is "also" part of the Legislative Branch. The scare quotes around "also" signal the thesis of this article: I think that on constitutional grounds, the office of the President of the Senate should be primary over that of Vice President of the United States, and therefore, that Cheney's office is wholly in the Legislative Branch unless the President of the United States should die or pass control under the 25th Amendment, at which point it leaves the Legislative Branch and passes to the Executive.

Historically, that is, in the original unamended US Constitution, we have several indications as to the role of the dual office:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Also, the original process of the Electoral College included three indications, that the term and election is identical to that of the President of the United States:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same term, be elected, as follows...

and that the President of the Senate has a unique ceremonial role in the process itself:

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted

and that the Vice President/President of the Senate is the person receiving the second highest number of Electoral College votes

In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall choose from them by Ballot the Vice President.

Finally, the rule regarding succession is laid out:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President...

That's the unamended US Constitution.

Note that in the original version, this office has three roles in the government: to be President of the Senate, to preside over the Electoral College, and to succeed to the presidency should need arise. The 12th Amendment refines this process slightly, and in a way that strengthens the thesis of the present article. It provides that instead of the runner-up to US President becoming the Vice President/President of the Senate, that person must run and be elected explicitly. It also provides that in case of an Electoral College tie, the Vice President/President of the Senate be elected by the Senate. There are quite a few further amendments that affect the office in ways that are not relevant here.

Therefore, it seems to me quite plausible that this dual office may have been conceived originally as yet another way to balance power between two branches of govenment. By electing the President of the Senate via the Electoral College, the considerations of the people regarding the chief executive would be maximally respected when the Vice President becomes President of the United States. Furthermore, by creating an office of President of the Senate elected by all of the states, and with a term shorter than that of the other senators, there would be a stronger connection of the people of the United States with the upper house of the legislature, whose members would otherwise be responsible only to their individual states. Therefore, what we see today as a fairly useless position of Vice President was probably intended to be an active President of the Senate, the second most powerful position in the federal government.

The problem is that the President of the Senate, being voteless except in case of a tie, was never given any real power in the Senate itself. Or, to say it another way, the power granted the President of the Senate was taken away by senate rules passed by senators unwilling to be limited by the power-balancing schemes of the Founders. In addition, because of the fact that the office of Vice President is much "sexier" because of its potential power upon the death of the President of the United States, it is that role which has been given strong emphasis by those who hold the office. To my knowledge, there has been no President of the Senate who actually exercised its powers, and this has also caused those powers to whither to the point of irrelevance.

However, those historical facts do not change the US Constitution. If we remember our basic logic, which says that if A is identical to B that we can always substitute A for B and vice-versa, then we can see that the office of which we are speaking is a single office: to be the President of the Senate and of the Electoral College, and to be the first in line to succeed the President.

Note that the second in line of succession is, interestingly enough, the Speaker of the House of Representatives. Now, because such a sequence was deemed much less likely, a special form of election was not provided for this office, nor was a second name (such as "Second Vice President") invented, although such a name would be perfectly valid. But in spite of this, there is an undeniable symmetry in the fact that the President of the Senate, the upper house, is first in line, and the President of the House (known as the "Speaker", but the offices are basically identical) is second in line. This symmetry is also strong evidence that the office of Vice President aka President of the Senate is not an executive office at all, but a legislative one.

In summary, it appears that the office of the Vice President aka President of the Senate has been grossly misinterpreted during over 200 years of history. It has wrongly been considered an Executive Branch office, with unfortunate consequences, and the Senate has lost the benefit of a president elected by all of the states. The presidents of both houses of Congress are in the direct line of succession to the presidency of the United States, and therefore, they each deserve certain considerations, such as being fully informed regarding the activities of the Executive Branch. However, they also have strong roles to play in their home Legislative Branch, and therefore when either one of them, the President of the Senate, or the Speaker of the House, becomes President of the United States, it must, under the Constitution, be seen not as a promotion of a member of the Executive, but as a transition whereby on of the leaders of the Legislative Branch moves to the Executive to assume new duties and powers there.

The one thing that we can do to try to move things in this, the constitutionally correct direction, has to do with names. This office has two names, "Vice President of the United States" and "President of the Senate". For historical reasons alluded to above, the former is seen as more powerful than the latter, and is the more commonly used. However, the apparent relative power of the two positions is an error: the Vice President has no constitutional role in the daily function of the Executive Branch, but a key role in the Senate. Therefore, we should begin by referring to the Vice President as "President (of the Senate)", as I did at the top of this article. Perhaps it isn't too late to mend this hole in the Legislative Branch, and to remove a pernicious growth from the Executive.

For some additional discussion of this thesis, please go here.

Considering the role of US military force

The neoconservative movement had at its core the principle that in addition to self-defense, a valid use of American military force is to spread American ideals such as democracy, human rights, and justice throughout the world. The movement has now been thoroughly discredited as a result of the misconceived and botched regime change in Iraq (and to a somewhat lesser degree in Afghanistan). However, I believe that it would be a mistake to throw out that core idea without careful consideration.

In fact, there are many grave injustices around the world, cases where entrenched local governments, extremist insurgencies, or endemic regional conflicts are bringing great harm to millions of individuals, and which endanger the unalienable right of all human beings to life, liberty, and the pursuit of happiness, if I can use that phrase. There have been cases where the judicious application of American military force has made a positive difference, especially when American have played a major or leading role in multinational interventions under the auspices of the UN or of NATO. Unfortunately, there have also been many cases where American intervention has created a bad situation or worsened an already bad one, in some cases even more so than in Iraq. How can an idea that seems so obviously good cause so much harm? Are we wrong to think that American might can improve the lives of people living under the yoke of tyranny or sinking into chaos?

There are important lessons to be learned from our adventure in Iraq. I think that perhaps they can all be summarized in two small proverbs: "Don't bite off more than you can chew" and "You can lead a horse to water but you can't make it drink". We didn't--and perhaps couldn't--commit adequate forces to the Iraqi occupation/rebuilding/democratization effort. It may be that we do not possess an adequate amount of men and materiel to do this, but certainly our leaders grossly underestimated the magnitude of the effort that would have been required. Also, the essence of democracy (dēmos "the people" kratia "power, rule") indicates that there are inherent contradictions in an external power attempting to forcibly impose democracy on an occupied people. It is possible to impose the forms of democracy, but how can you impose the habits of thought and the view of the world that must underly any effective practice of democracy? I don't think it's very easy to do that, and it may in fact be impossible. It certainly hasn't worked in Iraq.

I think that the most important lesson about Iraq and Afghanistan, though, is the importance of using our own democracy effectively. There are two really important things that we did not do, which could have prevented a great deal of trouble. First, in a time of national hysteria immediately after the twin tower attacks, we rushed into military action without any attempt by our leadership to seek calmness and an informed discussion of our options. That is, the people, basically out of fear, relinquished their role as the dēmos and submerged their thinking to that of the mob. Calmer voices were available, for example those who assessed the attacks not as an act of war, but as a particularly horrible and disgusting mass murder by a band of psychotic thugs. There is a real difference between those two perspectives. Of course, the advantage of the act-of-war interpretation is that we could spring into action and let the chips fall where they may. (This had tremendous advantages to a political party determined to cement itself into power, and to a presidential administration determined to inflate the power of the executive.) As has often been said, the army isn't a democracy, and therefore, once the army and its commander in chief took the lead, democracy fell by the wayside. The much more accurate "band of psychotic thugs" perspective, on the other hand, would have required international cooperation to a much greater degree, and it would have required a slower, more thoughtful approach, with things like evidence, laws, jurisdictions, and so on. As I have blogged elsewhere, there was even some indication that that approach would eventually have compelled Mullah Omar to give us bin Laden and the other al Qaeda leaders, if we had hard evidence (Sharia law doesn't like circumstantial evidence very much, and that is all we had during the few weeks leading up to the Afghan invasion). But the bottom line is that there was no evidence then that another attack was imminent, and in any case, a thorough investigation, looking for evidence, creating diplomatic connections to get access to international police work--all that would have been a perfectly adequate way to protect ourselves from another 911-style attack. We had time to let things calm down, to allow the dēmos to play their role, both individually and through their elected representatives, and to gather the hard evidence needed to convince the naysayers around the world that al Qaeda were indeed the perpetuators. If after this period of consideration, Mullah Omar had still refused to give us access to the murderers of thousands of our people, and if as a result the American Congress had declared war on Afghanistan, then that war would have been on an entirely different footing. Those who opposed it would have had the clear message that a calm, reflective dēmos, which included them, had considered the matter fully and openly, and had adopted a certain clearly specified and limited course of action. This message would also have been clearly understood around the world, and most importantly, by the Mullah. I personally believe that we could have broken up al Qaeda and jailed its leaders without any significant military action, had we followed that route. But we didn't.

The second thing we didn't do, to some extent with Afghanistan, but to a very large extent with Iraq, is to give the dēmos access to the information they needed to make an informed and rational decision. In fact, access to information was limited selectively, to paint a picture that was very inaccurate, and to mislead the people into backing military action in a direction and to an extent that was miserably mismatched with American and Iraqi interests. I don't need to belabor this, because most people have now understood it.

There is an obvious connection between these two points: a calm and involved dēmos can do nothing without free access to the best possible information, and good information is wasted on a hysterical public. It should be one of the foremost roles of government in America to ensure that the people are fully and accurately informed, including information that may not agree with the government's agenda. Furthermore, it should be central that whenever possible, the people as well as Congress be involved in important decisions such as the use of military force, and that their involvement not be detoured by hysteria or demagoguery. For example, government should not fan hysteria, but calm it, whenever possible. (Don't get me wrong: there are emergencies that require immediate response by our military and that can not wait for calm reflection by the dēmos. But this wasn't the case in Afghanistan, and definitely not the case in Iraq.)

What am I saying here that pertains to the neoconservative notion that America can use her military might to enforce and promote American ideals?

Well, I think that we should consider the principle itself, that is, whether American should ever go to war in the cause of justice and democracy, in the absence of an imminent military threat. By consider I mean that this principle should be the focus of a national debate, in the media, the Internet, and in Congress. I believe that once all possible sides of the debate are heard, an overwhelming majority of Americans would most likely agree in principle that such an action could be justified, but only under a certain very constrained set of circumstances. It is quite odd that in spite of the fact that America has gotten involved in that manner over many decades, above all during the Cold War in both overt and clandestine actions, this debate has never taken place in a meaningful manner. In my opinion, its importance rises to the level of a Constitutional Amendment. I admit the possibility that the result might be other than what I expect, and I could live with that if the debate were honest and thorough.

However, assuming that the dēmos decided that America could, in principle, use its forces in that way, then the next and even more important step would be to implement a set of supporting rules and facilities, and then to make a decision about specific instances where our military could lend a hand.

First and foremost, we should never make a move unless we are invited by the victims of violent injustice to intervene. Furthermore, the people who invite us must be willing to participate before, during, and after our involvement. Once we have been invited, there must be a period of research, the information must be published for public consumption, and there must be a public debate, and a debate in Congress. There must be an official, constitutional Declaration of War by Congress (or an alternate form if one is created by an amendment as mentioned above). Our involvement must be limited, what the French call a coup de pouce. It could be large or small in terms of expenses and personnel, but it must always be clearly limited. If things start to go wrong, as they often seem to do, the limits could always be extended, but only after the same kind of honest and thorough public debate as during the initial declaration. Once there has been a national debate followed by a Congressional declaration, then at that point the military force of the nation will be led by their commander in chief to implement their mandate, with little if any further dickering by either the people or Congress (although it is Congress who will have established rules guiding and constraining the military). That is, the people and Congress need to debate the various issues before the flag goes up, and, once they have committed the military, no "micromanaging". On the other hand, if things go wrong and the people lose their appetite for some particular intervention, and time runs out on the declaration, then the military will just have to withdraw, doing so in a manner to reduce the deleterious effects as much as possible.

Anyway, this is all just an attempt to sketch a possible framework where neoconservative-style interventions could be done in a manner consistent with American principles. I think that the interventions we have done recently, in the absence of such a framework and with the contravention of the dēmos, have been disasters. I think that our best course, until we can go through some kind of process along the lines I have outlined, is to stick with what is already has been established and which is in our Constitution: Congress must declare war, and decisions by the president to go to war without a declaration must involve true emergencies. I think that a fairly good model can be found in Article VI of the Articles of Confederation, which discusses the exigent circumstances under which an individual state can go to war:

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

The key concepts are that "the danger [must be] so imminent as not to admit of a delay till the United States in Congress assembled can be consulted", and that the response must go on "so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise". (I admit that the context is fairly different, but I believe that the concepts are still relevant.) This is not what we have seen either in Afghanistan or in Iraq. The resolutions for the use of force that were issued by Congress contained so many hedge words and conditionalities that they were almost useless except to eliminate Congress and the dēmos from the process. Basically, what we have is a kludge, an attempt to force the system we have, designed in the 18th Century (note the arcane phrases "some nation of Indians" and "infested by pirates" in the Articles of Confederation extract quoted), to work with the goals articulated by the neoconservatives of engaging militarily in the name of democracy and justice. It was a huge misstep to try to create a framework for such a drastic new role for America on the fly as we have done.

In summary, I think we need to start the debate about the underlying principle immediately. We need to decide once and for all, as a nation, whether and how our military forces will be used. The result has to be comprehensive and specific legislation, preferably one or more constitutional amendments. Until this happens, we need to disengage as cleanly as possible from all military interventions short of declared warfare or responses to true emergencies.