I want to make this as clear as possible from the very beginning: the Constitution gives Congress absolutely no authority to decide whether to count certain states’ electoral college votes. According to the 12th Amendment, Congress is granted no more than the power to count the Electoral College vote. “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; — The person having the greatest number of votes for President, shall be the President.” The President of the Senate does nothing more than count the votes. There is no constitutional power whatsoever to call those votes into question. There is no constitutional power whatsoever to debate the legitimacy of those votes. Any attempt to construe the language of the 12th Amendment as the granting of Congress any more power than the power to count would be unconstitutional. To be as frank as possible, Congress’s power under the 12th Amendment amounts to the power of a toddler. It can count and then declare the winner. That is it and that is all. There is nothing to see here. Constitutional government involves many steps that are mere formalities. All this handwringing about whether to certify the Electoral College’s vote is entirely play-acting.
For that reason, none of what happens on Tuesday is “consequential”—except in relation to a Republican base whose leadership refuses to provide it with even a semblance of a civic education. This article in the Bulwark captures well the ridiculousness of McConnell’s claim that the vote to certify Biden’s election is “the most consequential I have ever cast.” Amanda Carpenter writes in her article: “The January 6 congressional joint session is all but pro forma—a choreographed final step confirming a result we have all known for weeks.” I would go even further than this. The vote is entirely pro forma. Instead of hand-wring about how he should vote, perhaps McConnell could explain to his voters and other Republicans explain to theirs that they simply don’t have the constitutional authority to refuse to certify. The election presidents has a series of formal steps, none of which offer a new opportunity for calling into question their legitimacy. It is simply an act of dishonest demagoguery to pretend otherwise. As Greg Weiner argues, our dramatically limited civic education is one of our biggest problems. Instead of this pretense of hand-wringing, perhaps some of the congressional Republicans could explain to their base why they don’t have any power here. Our lack of civic education arises partly from our politicians’ refusal actually to engage these constitutional questions, for themselves, instead of just leaving it to the Supreme Court. Imagine if McConnell were to say to his base: “I know you’d like me to vote against certification because you’re upset about the election. But the truth is, the Constitution just doesn’t give me that power. Our vote on Tuesday is nothing but a certification of a foregone conclusion. We Republicans can’t ‘vote our conscience’ because we have nothing on which to vote.”
There is no principle more important in the Constitution than the separation of powers. It is the hinge on which everything else revolves. The founders thought it crucial that different functions of government fall into different branches of government. Keeping functions separate is essential to healthy government. Joining all functions into one branch is, as James Madison wrote, “the essence of tyranny.” The judiciary, the President, and Congress had to be kept separate from one another. Madison argues in Federalist #51 that the branches could only be kept separate if they had different sources of power. Congress is independent of the President because members of Congress are elected independently of the President. Presidents can’t select any of the representatives in Congress. They are elected by the people from their districts and states on a different part of the ballot than the President. So too, Congress doesn’t get to choose who it wants as its President. Unlike parliamentary government in which the Prime Minister is chosen by the MPs, Congress has no power to choose the President, except in what the founders hoped would be the unlikely case that there’s a tie in the Electoral College vote. Congress has no power to choose the President because, if it did, the President would become merely the tool of Congress, unable to act independently of it. The Constitution makes the President and Congress independent of one another in order to put them, at times, in tension with one another. The judiciary is the exception that proves this rule about the Constitution’s design. Though chosen by the President and confirmed by Congress, the lifetime terms of federal judges mean that they can be politically independent once in office; they answer to no one once they hold their seat.
For this reason, Congress can’t possibly have the constitutional authority to choose the President after the Electoral College has spoken. The founders created the Electoral College to ensure that the President is chosen independently. For Congress to have the power to overturn the Electoral College vote by raising questions about its validity would be to turn the Constitution upside down. It’s not just a small violation of the Constitution; it’s a fundamental violation of the principle of the separation of powers itself. Congress could then routinely exercise a veto power over the Electoral College’s vote and thus over the people’s vote. Whoever holds the majority in Congress could conceivably manipulate the count in order to get the President they want. At its extreme, it means the President would be selected by Congress rather than by the people. This would effectively turn us into a parliamentary government.
Some might respond that, even if I’m right about the Constitution, the Electoral Act of 1887 does stipulate more congressional authority to determine the credibility of the electors. The Electoral Act of 1887 arose partially in response to the contested election of 1876. In that election, there were legitimate questions about which Electoral College slate of electors to accept from some states. The law tried to settle on a process by which Congress could decide these questions. As with so many laws made to respond to an exception, this is bad law. If the law implies some kind of meaningful role for Congress beyond just counting Electoral College votes, it would be a violation of both the spirit and letter of the Constitution. Although on the books since 1887, the counting process has been pro forma since then so its constitutionality has never been questioned. If presented with the Republican interpretation of the 1887 law in which Congress has a more substantive role in judging which votes to count, the Supreme Court would almost certainly find it unconstitutional, likely 9-0.
But we don’t need to wait for the Supreme Court’s opinion on this. We as citizens who understand or at least ought to understand how our Constitution works should be able to recognize the unconstitutionality of a posterior power in Congress to select the President. We don’t need a law degree to see this; all we need is high school civics. If our system were working properly I’m not sure we’d even need high school civics. Instead, politicians themselves would provide the constitutional arguments that either justify their authority to act or explain why they can’t act. The founders expected the constitutional structure to be maintained through political disagreements. Paraphrasing Madison’s argument in Federalist #51, ambitious politicians would assert the “constitutional rights of the place” in order to achieve their ambitions. The constitutional structure of the separation of functions would be maintained merely through ambition. The people would get a civic education almost accidentally through the ambition of their political leaders. When asked to overturn an election after its completion, congressional ambition would seem to have dictated that they explain why they don’t have that power.
One of the benefits of Trump’s shenanigans could have been a kind of civics lesson for all of us. If the congressional Republicans had the courage, they might have explained to their base precisely what I have just described. In fact, this would have been better for them politically. McConnell and others are instead suggesting, on the one hand, that they have the power and so it’s a “momentous decision.” But, on the other, that they aren’t going to exercise the power—a decision which infuriates the Trumpian base. The playacting is worse than a forthright constitutional argument why they don’t have this power. Imagine again the alternative: “All we’re doing is counting the votes; we have no constitutional or legal power to question the votes that we’re counting. If we set a precedent in which Congress can question the people’s vote, then Congress would be electing the President rather than the people.”
Of course, even without these political arguments and without the Supreme Court’s intervention, January 6th’s tabulation of the votes should be obvious to us as citizens within a separation of powers system. We as citizens should be able to recognize the unconstitutionality of Congress choosing not to count electoral votes. It would mean that Congress has the ability to decide whether they want to accept the President chosen by the Electoral College. The Constitution does everything it can to insure that each branch is separate from the others in their sources of power. That means that Congress cannot possibly have the power to choose the President independent of certain extenuating, and hopefully unlikely, circumstances. More than that, this action would suggest that the whole process of voting for a President is essentially meaningless. Congress would have, in its back pocket, the ability to overturn the people’s vote. Even if partisanship is more important to some people than citizenship, they should still be able to recognize that, although they might want that this time, they won’t want it if it might overturn their candidate next time. But that collective failure to integrate any kind of long-term institutional concerns into our partisanship is a discussion for another time.
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