Another revised sample amendment to reform the Senate

This amendment is almost identical to the one I posted here, but I'm taking out the provision for a house of representatives override of the Senate veto of the executive order. I have also changed some of the other wording:

Section 1: All bills shall originate in the House of Representatives, but the Senate may concur in any bill passed by the House of Representatives. If the Senate concur, the bill shall be presented to the President for his or her approval or disapproval, according to the rules and limitations prescribed in the seventh section of the first article. If the Senate do not concur after one hundred eighty days shall have elapsed, the bill shall be referred again to the House of Representatives. If the House of Representatives shall approve said bill, without amendment, before three hundred sixty five days shall have elapsed from its original passage by that house, the bill shall be presented to the President for his or her approval or disapproval, according to the rules and limitations prescribed in the seventh section of the first article. But nothing in this article or in any article, of the constitution shall be so construed as to permit the Senate to propose amendments to any bill.

Section 2: The Senate shall have power to remove any officer of the United States, appointed by the President, if three-fifths of the Senate concur in such removal, provided that nothing in this article or in any article, of the constitution be so construed as to deny the term of service during Good Behavior of Judges, both of the supreme and inferior courts, and provided also that nothing in this article or in any article, of the Constitution be so construed as to deny the power of impeachment to the House of Representatives or to deny the power to try all impeachments to the Senate, according to the rules prescribed for impeachments and trying all impeachments.

Section 3: The Senate shall have power to nullify any executive order or any order issued by the President when engaged in his or her official duties as President, or any order of any officer of the United States, appointed by the President, if three-fifths of the Senate concur in such nullification, provided, however, that nothing in this article shall be so construed as to permit the Senate to nullify the decision of any Judge, of the supreme court or any inferior courts, when done in the exercise of his or her office; and provided, further, that the failure by the President to obey the Senate's order for nullification by voiding the order or by offering a replacement for said order that be substantively different from the nullified order shall be considered a high crime or misdemeanor against the United States.

Revised sample amendment to reform senate

Here's my revised sample amendment to reform the senate:

Section 1: All bills shall originate in the House of Representatives, but the Senate may concur in any bill passed by the House of Representatives. If the Senate concur, the bill shall be presented to the President for his or her approval or disapproval, according to the rules and limitations prescribed in the seventh section of the first article. If the Senate do not concur after one hundred eighty days shall have elapsed, the bill shall be referred again to the House of Representatives. If the House of Representatives shall approve said bill, without amendment, before three hundred sixty five days shall have elapsed, the bill shall be presented to the President for his or her approval or disapproval, according to the rules and limitations prescribed in the seventh section of the first article. But nothing in this article or in any article, of the constitution shall be so construed as to permit the Senate to propose amendments to any bill.

Section 2: The Senate shall have power to remove any officer of the United States, appointed by the President, if three-fifths of the Senate concur in such removal, provided that nothing in this article or in any article, of the constitution be so construed as to deny the term of service during Good Behavior of Judges, both of the supreme and inferior courts, and provided also that nothing in this article or in any article, of the Constitution be so construed as to deny the power of impeachment to the House of Representatives or to deny the power to try all impeachments to the Senate.

Section 3: The Senate shall have power to nullify any executive order or any order issued by the President when engaged in his or her official duties as President, or any order of any officer of the United States, appointed by the President, if three-fifths of the Senate concur in such nullification, provided, however, that nothing in this article shall be so construed as to permit the Senate to nullify the decision of any Judge, of the supreme court or any inferior courts, when done in the exercise of his or her office; and provided, further, that the President may, with the advice and consent of the House of Representatives, reinstate the nullified order for approval by that House within ten days of such nullification, including Sundays; and provided, further, that in the case that the House of Representatives do not consent to the reinstatement of the nullified order, the failure by the President to obey the Senate's order for nullification by voiding the order or by offering a replacement for said order that be substantively different from the nullified order shall be considered a high crime or misdemeanor against the United States.

Sample amendment to reform the U.S. Senate

Here's the text of my proposed amendment to reform the Senate. The goal is to give the Senate the power to replace its power to veto legislation with the power to provide a suspensory veto and to oversee the executive branch's cabinet level and sub-cabinet level officers and executive orders:

Section 1: All bills shall originate in the House of Representatives, but the Senate may concur in any bill passed by the House of Representatives. If the Senate so concur, the bill shall be presented to the President as stipulated in the second clause of the seventh section of the first article of the constitution. If the Senate do not concur, the bill shall be referred to the House of Representative which shall approve or disapprove of the same bill, without amendment, after one hundred eighty days, including Sundays, shall have elapsed, but before three hundred sixty days, including Sundays, shall have elapsed. If the president disapprove of said bill, the bill shall become law only if two thirds House of Representatives repass the bill, according to the rules and limitations prescribed in the case of a bill. But nothing in this article or in any article, of the constitution shall be so construed as to permit the Senate to propose amendments to any bill.

Section 2: [see update #2 below] The Senate shall have power to remove from any officer of the United States ,appointed by the President, if three-fifths of the Senate concur in such removal, provided that nothing in this article or in any article, of the constitution be so construed as to impeach the tenure of Judges, both of the supreme and inferior courts.

Section 3: The Senate shall have power to nullify any executive order or any order issued by the President when engaged in his or her official duties as President, if three-fifths of the Senate concur in such nullification.

Update 3-5-11: I already notice something I want to change. I should modify the phrasing of section 2. I do not mean to state that the Senate shall not have power to try impeachments when it comes to article III judges (or anybody), but only that if the Senate wants to remove a judge, the judge needs to be removed by the impeachment process described in the Constitution.

Update #2, 3-5-11: Here is how I would re-write section 2:

Section 2: The Senate shall have power to remove any officer of the United States, appointed by the President, if three-fifths of the Senate concur in such removal, provided that nothing in this article or in any article, of the constitution be so construed as to deny the term of service during Good Behavior of Judges, both of the supreme and inferior courts, and provided also that nothing in this article or in any article, of the Constitution be so construed as to deny the power of impeachment to the House of Representatives or to deny the power to try all impeachments to the Senate.

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.

More on reforming the senate

In an earlier post, I offered a plan to reform the U.S. Senate. I would like to modify and elaborate on that plan:

1. On second thought, I would not like the Senate to be able to offer amendments to bills.
2. The "suspensatory" veto would have to be "proactively" imposed by the Senate. (I normally dislike the word "proactive," but here it seems to fit.) The idea is, the bill would be presented to the President for his signature or veto ten days after the House of Representatives passes it. The Senate could expedite the process by approving it before the ten day period. Otherwise, it would have ten days to impose its suspensatory veto. After a period of time--say, 90 days, or 180 days--the House would be able to re-vote on the exact same bill, an up or down vote by a simple majority. If the bill then passes, it would be immediately presented to the president.
3. I would like to expand the Senate's executive authority. In my original post, I suggested the Senate ought to have a right to vote "no confidence" in a cabinet member. Maybe it should have the power to vote "no confidence" against its president (i.e., the US vice president). Such a vote would not remove the vice president from office, but would forbid him or her from presiding over the senate and taking away his or her power to cast a deciding vote, in case of a tie, a vote which would nevertheless be less important now that the Senate would have only the power to "suspend" legislation.
4. Maybe the Senate should have the right to veto executive orders. Under this plan, all executive orders would be presumed valid unless the Senate vetoes them.
5. Whenever the President wants to commit the military to any overseas, combat action, he will have to get the approval of the Senate. If it is an emergency, or the president's commitment of military force requires secrecy (which militates against requiring prior approval), the President must make his case to the Senate within 90 days that he was justified in using military force, and the Senate must approve or disapprove the action. If the Senate disapproves the action, the House of Representatives may (but would not be required to) draft articles of impeachment, and the Senate would then "try" the impeachment, convicting by the requisite 2/3 vote standard. Under this scheme, unless the President has committed any other "high crime or misdemeanor," the President would not be able to be prosecuted in criminal court simply for committing troops improvidently.
6. Senators could be recalled upon a petition signed by voters in a state. The petition would have to have a reasonably high number of signers to prevent spurious recall, say, 10% of the number of people who voted in the last Senatorial election. The goal here is to provide an additional check on the Senate and, indirectly, on the Presidency through the checks the Senate exercises on the President.
   

A Practical Plan to Reform the Senate

A common complaint against the US Senate is that it is undemocratic, that it stymies legislation needed and desired by "the people." For example, Wyoming, with its c.500,000 people, gets as much representation as California with its c. 20 million (?) people. Another example: the filibuster: a 3/5 majority is needed for "cloture," or to close off debate for most measures in the Senate, which means that 41% of the senators can prevent passage of a bill desired by 59% of the Senators.

I'm not one to overly praise "democracy," in part because as a term, it elusive. Also, I'm a bit enamored of putting some check on "majoritarianism," the doctrine that just because a majority believes something is desirable, then it ought to be put in practice, or (more extreme) that just because a majority believes something is desirable, then it is right. (To be fair, few people, to my knowledge, really believe this in practice: no one save extremists, for example, would think it would be right to re-implement Jim Crow even if 90% of the population desired it.)

But of late, I've become more sensitive to the charge that the Senate needs to be reformed. In particular, my desire for the "public option" in the health care bill, which is likely to pass the House of Representatives but which might not pass the Senate, drives home for me why I'd like the senate to be reformed.

I have to eat crow a bit. I seem to remember opposing the efforts of Republicans to do the "nuclear option," forcing through judicial confirmations by a simple majority. Now that there's a policy I'd like to be passed, I support doing away with minority dominance in the Senate. Still, motivations aren't everything, and anyone who wants the Senate reformed along more putatively "democratic" lines might listen to my ideas and agree with them, or not, regardless of what is for me a convenient change of heart.

I propose a constitutional amendment that would change the senate in the following way:

1. The Senate would continue to have its Senate-specific functions, such as approving cabinet-level and other federal level appointments and ratifying treaties.
   
2. The Senate could not initiate legislation, but it could amend legislation.
3. The Senate would be able to exercise a "suspensatory veto" over the final draft of any legislation. If after the House debates all amendments proposed by the Senate and the Senate declines to approve the bill, the House may reenact the law 60 days after the Senate acts on the bill. If the Senate refuses to act on the bill, the bill would become law 60 days after it is referred to the Senate. There would be some check in the amendment to prevent the Senate from repeatedly adding amendments to the legislation to extend indefinitely a bill proposed to it.
4. The Senate would be given added executive powers. It would be able to vote "no confidence" in any cabinet-level officer (either by a simple majority or a supermajority....I'm inclined to say 3/5 majority, but I'm as yet undecided.)
   

Such an amendment would have the following virtues:

1. It would retain some of the Senate's power to check the excesses of the House of Representatives, even if only temporarily.
2. It would put a much-needed check on presidential power and make the presidency more responsible to elected legislators.
3. It addresses one practical objection to reforming the Senate, namely, that 2/3 of the Senate would never vote to refer an amendment to reduce their power. This amendment would actually grant more power, in some areas, to the Senators even while restricting the legislative power.
4. It removes another obstacle to reform of the Senate. The Constitution provides that no amendment may deprive any state of its equal represenation in the Senate. Abolishing the Senate could, under that provision, be constued as an attempt to deprive states of their equal representation.