Kamala Harris's Senate Presidency as Merely One Example of Constitutional Audacity

by Neil H. Buchanan
Today's question is: How should we respond to seemingly outrageous legal assertions that would be helpful to our side?  The Democrats' answer has almost unerringly been: "Oh, we dare not.  The voters will punish us, the pundits will shame us, and our friends across the aisle will refuse to work with us."  The Republicans' answer, more and more, has been: "Let's do it!  We can brazen this out, and we'll get what we want.  It worked before, and it will work again.  We've proved it over and over."
With that as the broad framework, my column earlier this week discussed one such seemingly outrageous legal assertion.  There is only one constitutional statement regarding the leadership of the Senate, which is that the Vice President is the presiding officer of that house of Congress.  Moreover, the leadership norms that have governed the Senate in our lifetimes are not even set by statute, much less in the Constitution itself.  They are truly norms.  Thus, I argued, the Democrats could (but probably will not) employ a Republican-style breaking of norms by having Vice President Kamala Harris refuse to recognize Mitch McConnell as the person who actually dictates the business of the Senate, including most importantly the determination of which items of business receive floor votes.
[Aside: None of this will be relevant, of course, if both Democrats in Georgia win their runoff elections on January 5, 2021.]

The very nature of seemingly outrageous ideas is that they seem so outrageous.  Thus, pretty much any B+ or better law student can explain why -- based on current understandings of the law -- an outrageous idea cannot possibly fly.  A good example of this was provided on the comments board of my column three days ago, where some readers offered analyses with which I would normally completely agree and which are, in fact, most likely the best and most obvious readings of the law.  I do not mean to disparage those comments by calling them obvious, but the whole point of this exercise is to think about when obviously wrong legal arguments are somehow not quite so sure to fail as we might think.

This is going to become an ever more pressing question, because McConnell and the Republicans are already making clear that they will try to get away with anything that they can to stymie Biden and the Democrats.  In such circumstances, even arguments that seem outrageous need to be on the table.  But how do we know what will actually work?  Short answer: No one knows, but that is why trying -- and even simply talking about trying -- matters.
If, five years ago, a law professor had asked her students to write a memo about what happens when a Supreme Court seat comes open, any good student would have provided a careful summary of the law and precedents in describing the process and the possible points of contention.  Notably, a student who wrote that the advice-and-consent clause does not require the Senate to hold hearings or to vote on the President's nominee -- for any reason, much less for the completely ahistorical reason that McConnell repeated endlessly in 2016 -- would have either received a grudging extra point of credit for noting a minor textual lacuna or been outright penalized for adding a flailingly bad argument to pad out his answer.

Or consider again one of my other recent deliberately outrageous readings of a constitutional provision.  Discussing presidential pardons, I wrote: "[G]iven that the term 'United States' has at times been viewed not as a proper noun but as an adjective modifying a plural noun -- that is, states that are united -- the text does not unambiguously tell us that the pardon power is only for federal crimes."  To be clear, this is an example of something that I oppose (expanding the pardon power such that Trump could pardon his way out of state crimes, not just federal ones), but the point is that a seemingly clear term like "United States" is not entirely clear.

How crazy is that?  Pretty crazy, but again, this entire conversation is taking place at the Crazytown city limits.  One could reasonably respond that the text capitalizes both words in "United States," which is true.  On the other hand, the Constitution includes a lot of capitalization choices that now seem odd at best.  And given that the current conservative majority on the Supreme Court completely agrees with the idea that the first thirteen words of the Second Amendment are merely prefatory -- breaking with decades if not centuries of agreement condemning the "individual rights view" of that amendment -- how far out of bounds is it, really, to say that a president could pardon any crime against any of the states that are united? 

Again, I am not a fan of that argument.  Indeed, it is outrageous.  It is just as outrageous as saying that the pardon power extends to crimes that might be committed in the future, another area in which people who otherwise claim that the pardon power is unchecked admit that it is, in fact, constrained.  After all, if the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States" is unlimited because we are imagining that the word "absolute" modifies the word "Power," why are we saying that absolute power is not absolute?  The answer is that we do not know unless and until someone tries to test the limits of the language.

Or we can look at the Eleventh Amendment, which says that the citizens of one state cannot sue another state in federal court, which was later held to mean that citizens cannot sue their own states.  The Court's conservatives then admitted that it was not really about the Eleventh Amendment, even though that had been their hook in launching their revolution regarding sovereign immunity.

My Federal Courts professor asked in class one day whether the Constitution would permit Congress to shut down the Supreme Court.  No, we said, pointing to the clear language in Article III: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."  Congress might be able to abolish lower courts, but clearly it could not mothball the Supremes.

The professor then pointed out, however, that the term "Supreme Court" (even if the capitalization means something) does not necessarily mean what we think it means.  To this day, New York State (which obviously preceded the founding of the country) uses the term Supreme Court to describe its lowest level courts, the same courts that are called District Courts in the federal system, Superior Courts in California, Courts of Common Pleas in Ohio, and on and on.

The idea was not that there are not other arguments, based on further textual analysis and historical precedent, to which one could point in saying that our current version of the Supreme Court cannot be shut down by Congress.  The professor simply said that text -- even seemingly clear text -- leaves open possibilities that are not obvious (and might even reasonably be called outrageous) but that are also not simply illogical or atextual.
Now consider one of the nightmare scenarios that we seem to have avoided in the current election.  The Trump team was hoping (and is still hoping, although the Supreme Court seems unlikely to go there for other reasons) to force/allow Republican-led legislatures -- without being required to pass legislation through normal means (most importantly, overcoming a governor's veto) or to be reviewed by the states' own courts -- to ignore their own citizens' votes, on the theory that the Constitution gives the "legislature" the sole power to determine how electors are appointed.
Professor Dorf and others have demonstrated that this is constitutional nonsense, but at least some Supreme Court justices have already emitted loud signals suggesting that they would agree with a literal, context-free, and absurd meaning of the word "legislature" in Articles I and II.  Why not also say that the literal meaning of the First Amendment protects someone who yells "Fire!" in a crowded theater, or that the Second Amendment prohibits the government from regulating the ownership of heavy artillery and nuclear bombs?

Four years ago, as Trump was proceeding through the peaceful transition of power that he now denies Biden, I wrote a Dorf on Law column in which I argued that Democrats needed to learn to go big.  Relying in part on columns in The New York Times by David Leonhardt and by Dahlia Lithwick and David S. Cohen, I pointed out that Republicans have succeeded in taking what had been unthinkable positions and running with them.  Leonhardt's piece, for example, discussed the state-level Republicans in North Carolina who stripped power from the incoming Democratic governor during their lame-duck session, allowing the outgoing Republican governor to sign legislation to neuter his successor.  (Wisconsin's Republicans did the same in 2018.)
Also, no one imagined that Republicans could pass spending and taxing laws that could only be faithfully executed by taking on federal debt but then refuse to authorize that additional debt.  Then, in 2011, Republicans announced that they were doing just that, threatening to force a constitutional crisis unless President Obama acceded to their demands for even greater austerity measures.  Professor Dorf and I argued in a series of articles that this was unconstitutional, but even though the few scholars who publicly disagreed with us never even attempted to offer counter-arguments in a rigorous fashion, the ensuing political crises were only resolved when Republicans blinked first.

All of which brings us back to Vice President Harris and the Senate.  More accurately, it brings us back to that question along with countless others under the heading: "Things that anyone can tell you are outrageous but that might still work."  In a sense, this is a recasting of Professor Jack Balkin's "on the wall, off the wall" idea (summarized by Professor Dorf here), where Balkin wondered how once-loopy ideas become mainstream and even controlling.

But my interest in not in how that happens so much as that it happens at all.  Again, I doubt that the Biden team will allow Harris to assert the power that she could outrageously assert, even though I see the value in letting it be known that she might.  In addition, we should be clear that she need not exercise an ongoing Senate presidency but that she could assert it strategically.
And for those who think that the Senate's rules would block this, that might not even be true on its own terms.  The short op-ed to which I referred in my column earlier this week links to a CNN article from two months ago that begins as follows: "Senate Minority Leader Chuck Schumer, in an extremely rare move Tuesday, took control of the Senate floor and is forcing a procedural vote on a bill, a step that is typically done only by the Senate majority leader," adding: "The rules say any senator can do what Schumer did Tuesday but senators typically don't take these extreme steps because doing so regularly would shut down the Senate.  That's why it's custom to let the majority leader set the schedule."
Even there, the question is whether Republicans with a Senate majority would respond to hardball tactics by changing the rules on the fly.  And if they did, would that lead to escalation from Democrats, including possibly invoking Harris's constitutional role?  In the end, what we are seeing is that the erosion of standards and norms that McConnell has gleefully accelerated can either be met with civility and calls for restraint or by attempts to turn the tables.
Politics is always, in the end, about who has power and how far they are willing to push it.  Democrats have done some things in response to being pushed too far, most notably in ending the filibuster for all but Supreme Court justices after Republicans blocked everyone in sight.  Republicans, of course, later used that as an excuse to end the filibuster for Supreme Court justices, even though McConnell surely would have done so as needed, no matter what Democrats had done before then.
As Republicans become increasingly radicalized and unwilling to work with soon-to-be-President Biden, Democrats will need to decide when and how to play hardball.  Every time they do, we will all reflexively say, "Wow, that's extreme and unprecedented," because it will have to be.  That does not mean that it will not work, or at least that it is not worth trying.