I disagree with both of you.
Both of you imply that the law is clear — although each of you sees it as clear in a different direction. I think that we are, to a great extent, in uncharted waters, with no binding precedent. The comparatively brief language of the Constitution cannot and does not give precise guidance for every specific situation that might arise. For one thing, it was written when there were no absentee ballots and for that matter not even any secret ballots. Men (only men) voted by standing up in a public assembly and orally announcing their choice.
Under the current circumstances, there is at least a fair question about what role Mike Pence can play in the challenge. He is entitled to take a position on that question, given that neither view of the matter could be dismissed as frivolous or clearly wrong.
“I think that we are, to a great extent, in uncharted waters, with no binding precedent. The comparatively brief language of the Constitution cannot and does not give precise guidance for every specific situation that might arise.”
I think that’s a fair enough view... and I agree that the Constitution doesn’t intend to provide “precise guidance for every specific situation that might arise”.
What it does intend, instead, and does very well, is by location in the document, and by clear language, provide specificity in grants of power, and their limits... the word “shall” follows those grants, to make it CLEAR whose power it is. Other language present tasks others, but doesn’t ever alter that basic fact in a primary grant of power to a named party, followed by the word “shall”.
The grant in question... is in ARTICLE TWO which grants powers to the Executive. Article One grants powers to the Legislature. And, as the Legislature is mentioned, while requiring their presence, in the Article Two grant of power to the VP... so the Executive and others are mentioned for particular reasons in Article One... without the mention ever granting them broad or sweeping powers to control the Legislature ?
Lets look at two, specifically:
First, “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside”...
The President is mentioned... not granted any powers. But, the Chief Justice is paired with a “shall”... and, he is empowered by that... to preside over the Senate. Study impeachment and see if those all occur with the Chief Justice role being “ceremonial” ?
Second, again in ARTICLE ONE: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
Presidents... preside when in control. They ARE allowed to rule in control of the Legislative branch... but only in carefully and very narrowly defined functions. But, IN those functions... the named person PRESIDES.
The VP is granted the same power to preside over the Senate as the Chief Justice has in impeachment, the Chief Justice substituting for him, then, ONLY when it would be untenable to have part of the Executive Branch sit in judgement of the President.
In the case of Elections, the VP is empowered to rule over BOTH Houses of the Legislature, as the President of the Senate... for a narrowly defined purpose. But, the narrow definition that purpose, limiting his control to Elections, is not a narrowing of the power to preside... within that purpose... only outside of that purpose is he powerless.
“Under the current circumstances, there is at least a fair question about what role Mike Pence can play in the challenge.”
No, there isn’t. He is DIRECTED to PRESIDE by the Constitution... and he has no authority to SURRENDER that power he is MANDATED to be responsible in exercising.
Pick any other instance you want... where the word “shall” is used in the grant of power in Article One or Article Two... and make the same argument... that the power being directed to be controlled... “doesn’t really mean that” ?
“He is entitled to take a position on that question, given that neither view of the matter could be dismissed as frivolous or clearly wrong.”
That’s clearly WRONG. Like it or not, Pence HAS the power.
What he does with that power... is another matter, entirely.
He HAS the responsibility... whether or not he will take responsibility ?
What Pence is doing... appears to be seeking to run away from his responsibility... hoping to avoid being held responsible for the choices he might make... by denying the Constitution requires him to PRESIDE, or make decisions... when he would rather surrender that power and responsibility to others ?
Is Pence really that weak ?
Another answer to yours, as its moral muddle is SO wrong in this, too:
In Article One, the VP is made President of the Senate ? So, he is directed to and must fill a role as President under the Article One legislative powers, as a part of the Legislative Branch. He even votes as a legislator, in particular circumstances.
The location of the grant of power to the VP in presiding over elections... is in Article TWO, instead, for a reason.
Legislatures write laws and vote. Executives carry out the laws, with control over actions, not votes. The CONDUCT of elections is action left to the executive. Legislatures do not “run elections”... they write laws defining how the elections will be run, and direct others to run them. Those others are the Executive. In the states, Legislatures write the laws, Governors and Secretaries of State carry them out.
At the national level. Congress writes laws... the Executive Branch carries them out. Congress votes to go to war... and the Executive sends those guys Congress pays, that the President commands, off to war... and the same Congressmen as voted to go to war, do not conduct or participate in the ACTION they voted to direct... except for their participating in voting for others to act.
The obvious BS in the current environment... is the argument justifying FRAUD is based in the LIE that the Executive in Pennsylvania, can act unconstitutionally in lieu of the Legislature to re-write the election laws, and then conduct the election outside the legitimate laws... while the SAME PEOPLE justifying that... are claiming the Executive power at the National level... doesn’t even have the ARTICLE TWO power he is clearly directed to have... to CONDUCT the election WITHIN the laws as written ?
Same people... making both arguments: One, that the Executive can write his own laws and conduct elections however he wants... no matter what the lawmakers say... when THAT suits them... And, Two, that Executive has no power at all, not even to CONDUCT an election within the law, and instead he has to do what legislators say and surrender his power to them in conducting the election, even when that violates the Constitution, and when it is being done to enable breaking the laws... and they advocate for THAT when that is what suits them.
Which is it ? Can’t be both. Both are wrong, of course.
Governors can’t rewrite laws, and conduct elections outside the legitimate laws... while covering up frauds. And, Vice Presidents can’t surrender the power to Preside over elections to legislators... to help them cover up frauds.
The Deep State’s Legislators... are trying to con Pence into breaking the law for them... by pretending he has not power to stop them, while validating at the Federal level the frauds they’ve enabled being practiced in the states.
In the election of the President... the Executive Branch, in the person of the VP, is DIRECTED to conduct the election, while the legislature... are made the voters. Neither the Legislative Branch, nor the voters... CONDUCT the election... when the law clearly says the Executive shall ?
But, AS the VP conducts the election... he is not absolved of his other responsibilities... such as his oath of office, or his PARALLEL responsibility to ensure that the laws are faithfully executed.
I expect VP Pence to do the right thing... and not aide and abet those practicing frauds against the Constitution... while advocating that frauds in elections should be allowed to succeed.
Sedition... is an issue that breaks along the line of the law... and of ACTUAL legitimacy in adherence to the law... rather than to frauds pretending to be legitimate.
It is sedition... to advocate that the Vice President should not follow the law... and vitiate it (corrupt, invalidate, or weaken it morally) by tolerating fraud. It is sedition... to advocate that Governors (et al) have no reason to submit to the law, or Legislatures rightful exercise of plenary powers... and to obstruct them in that.
It is not sedition to demand that the laws and the Constitution must be followed: when they are being broken by legislators and judges, Governors and Secretaries of State, and Attorneys General, at the state and federal level... or when fraud is being enabled, hidden, and protected by roue elements in the Executive Branch, in the CIA, or the FBI, or the military... But, also in civil society... advocacy intending to provide cover while protecting subversion... as the media... You don’t have to violate an oath to be found guilty of violating the law, or subverting the Constitution ?