Sunday, October 25, 2009

Possible objections to my plan to reform the Senate

Here are some possible objections one might lodge to my plan(s) to reform the Senate (See here and here):
  • Why not keep the present system of checks and balances? The Senate's current role in legislation prevents many improvident laws from passing.
My answer is really a non-answer. I am not arguing for reforming the Senate along putatively more "democratic" lines. But I am offering a way to reform it if one begins with the assumption that the Senate needs to be reformed. In other words, I have no answer. But I am stating how to do it if certain assumptions are accepted.
  • The proposal to grant the Senate the power to approve or disapprove the commitment of military forces abroad wreaks havoc with the doctrine that the whole Congress ought to have the power to declare war, and therefore gives unprecedented power to the President.
My answer: as a practical matter, the President already has this power anyway. Despite the War Powers Act--which, if I.N.S. v. Chadha applies, would not be upheld by the Courts and would be otherwise unenforceable--the President can pretty much commit troops wherever and the Congress would not (probably) vote to discontinue funding, because doing so would be dangerous to American soldiers. Under this plan, with the retroactive approval/disapproval mechanism, the President would have to face severe consequences for committing soldiers, even though the operation might continue. This is an imperfect solution, as it does not address the notion of a "declared" war--which the US has not had since World War II--and a declared peace.
  • Why even have a suspensatory veto?
Two reasons. First, it's a bone to throw to the Senate. Any constitutional amendment to reform the Senate would have to appeal to the Senators' institutional desire to safeguard their power. Unless an amendment is proposed by the "convention" method, 2/3 of the Senators would have to approve it. They could not propose legislation, but they could, perhaps, set up a committee to consult with the House on a measure that they would accept.

Second, the suspensatory veto could prevent improvident legislation from passing, especially if the period of suspension takes any legislation close to an election cycle. The members of the House would, in theory, have the opportunity to hear from their constituents before any bill would pass. While not perfect, this plan would work to avoid the (alleged) practice of Congress passing legislation in non-election years that would make them vulnerable during election years.
  • Would the "veto" over executive orders be cumbersome?
Potentially. But that is the point, to encourage the President to consult with the Senate before making changes. I wouldn't necessarily oppose a supermajority for such a veto, say, a 3/5 or 2/3 vote. My goal is to indirectly, through the Senate, to place a check on executive power and yet at the same time allow considerable flexibility to the President to do his or her job. I am, in a sense, taking aim at the "unitary executive" doctrine espoused, among others, by Samuel Alito.
  • The provision about curbing the power of the Vice President doesn't make sense.
This is a good objection. I guess I wanted a way to curb his or her power. The problem with the purported power of the Vice President is that much of it is non-Constitutional. Outside of his role to preside over the Senate, break tie votes, and succeed the President in an emergency, there's isn't much, constitutionally, for him to do. I'm not one of those who say we don't need a Vice President, but at the same time I'm disturbed by the fact that under my plan, it would be (slightly) easier to remove the President, only to have him replaced by his Vice President, a person who, in most cases, would probably be of a similar persuasion in regard to policy. I'd be willing to compromise on the Vice Presidency portion of the amendment, especially since I'm not sure I'd want to have it.

Update 10-27-09: I have clarified some of the language and added material.

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