Thank Pence for Biden's Trainwreck

There can be little doubt that former Vice President Mike Pence thought he was doing the right thing. There are certainly many pragmatic reasons for his decision to not intervene in the electoral processes during those fateful days in January 2020. We’re a year and a half into the geriatric Biden regime and those pragmatic reasons are quickly losing their luster.

The nation is suffering—not from the constitutional crisis feared by the establishment but a systemic, methodical, sadistic infliction of pain and loss resulting from disasters of policy that are breathtaking in scope and frequency. It's almost as if Biden and his administration hate Americans, our Constitution, and want to extract a pound of flesh from anyone they think supported President Trump.

The list of horribles is almost too extensive to believe: thirteen dead servicemen and women resulting from the botched retreat from Afghanistan, with thousands more left behind to suffer the predations of a stone age tribe—billions in weapons and machinery left to be co-opted by the oppressive Taliban. A war in Ukraine ignited by Biden’s insipid, bungling foreign policy, his disaster in Afghanistan, and his failure to act unequivocally in the face of Russian aggression. Soaring energy prices. A dismantling of the southern border and an invasion of illegal aliens by the millions. A flood of fentanyl, pouring through a porous border, that’s slaughtering vulnerable Americans wholesale—a product of communist China. Unbridled inflation. An impending food shortage. Bloated gas prices. Critical race theory in public schools—indoctrinating our children with the dogma of inherent racism. The injection of transgender theory and the normalization of pedophilia and grooming by liberal “educators.” Hunter’s laptop filled with child pornography, and evidence of a real Chinese influence campaign involving his father. The political persecution and imprisonment of January sixth protestors. And, COVID mandates that criminalize conscience.

A clear, common sense reading of the 12th Amendment and Article two of the Constitution imply a power given to the “President of the Senate,” or Vice President, to make a determination as to counting the submitted certificates from the states. Many argue that use of the passive voice implies more than just a ceremonial function. It is plausible, from the text, to draw the conclusion that the Vice President may determine which certificates to count. Otherwise, he’d serve no logical function when determining an electoral college tie. The Vice President is clearly more than just a bean counter. This implied power resides solely with the Vice President, not Congress.

The Supreme Court has not issued an opinion on this matter, and refused to do so during the 2020 election cycle. In fact, no lawsuit concerning these 12th Amendment issues brought before a federal court was ever litigated on the merits. Laches—a legal term meaning you’ve brought your suit too late—or standing—a legal term meaning the plaintiff has not and will not suffer any demonstrable harm—were used to dismiss 12th Amendment suits. The dismissals on procedural grounds strongly suggest a judicial reticence to address substantive matters of law for reasons that can only be speculated about. However, a massive intimidation campaign was being waged by the legacy media, the tech oligarchy, and by Democrat party operatives. It’s not difficult to imagine how judges might prefer to punt rather than do the hard work and swim upstream against the onslaught of activist outrage.

Here is where Vice President Pence made his mistake.

Pence treated the January 6 joint session of Congress as an event, not a process. As an event, he would just show up; as a process, he would assert his position throughout.

Throughout American history, scholars would always talk about how the Constitutional separation of powers was a tug of war between the branches: we sometimes had a strong President and a weak Congress, and sometimes we had a strong Congress and a weak President. It came down to the personality of the people in office and the needs of the country at the time. The branches were always accusing the others as engaging in "power grabs," and would often try to preempt a branch from acting strongly by prematurely leveling this charge.

I think most people would agree that Pence exhibits a weak personality compared to the other senior office holders in government, and would shy away from being seen as a "power grabber."

Setting that aside, let's look at the so-called "ceremonial roles" in the Constitution. The author is correct that we should not expect high office officials to neuter themselves in ceremonial roles. The Framers of the Constitution would not have done that to the people who achieved the highest offices in the nation. If these roles devolved into ceremonial care-taker positions, it's because the people who held them at pivotal times were weak and not assertive people, or they chose to subordinate themselves to another branch of government.

The most ceremonial role in the Constitution is that of the Chief Justice of the Supreme Court who presides over the impeachment trial in the Senate. A strong Senate has, over time, cowered the Chief Justice into being a clerk of the court, reducing the meaning of what it is to preside over a court. A strong Chief Justice could easily assert traditional court roles and make the Senate act for or against the Chief Justice (see how Tom Harkin (D-IA) bullied Chief Justice William Rehnquist during the Bill Clinton trial, playing on Rehnquist's reputation for being easygoing and non-confrontational).

As an event, the Chief Justice could just show up and keep time. As a process, the Chief Justice could participate in advance of the trial, laying down his expectations on how the trial would proceed, and telling Senators what to expect from him as the presiding officer. Look at how Chief Justice John Roberts told the Senate that he would not preside over the second trial of Donald Trump.

Vice President Pence should have treated the role of presiding over the counting of the Electoral College ballots as a process, too. Instead of just showing up on January 6 and gaveling in a joint session of Congress, he should have asserted his role all along, reminding Congress of what he will do when January 6 arrives if certain things do not happen between Election Day, the day of the Electoral College vote, and the day of counting the votes in Congress.

As the steward of the entire process, Pence should have spoken out immediately after Election Day, calling out the irregularities and telling the state legislatures that they should be asserting their Title 3 Chapter 1 powers immediately, because the clock was ticking.

He should have directed the state legislatures that Title 3 Chapter 1 § 2 lets them choose electors if Election Day failed to produce a definitive result.
He should have directed the state legislatures that Title 3 Chapter 1 § 5 establishes a timeline for resolving controversies in the elections, and that the legislatures are expected to act on such controversies when their plenary powers were grabbed by a strong state executive branch.
He should have directed states that Title 3 Chapter 1 § 15 has processes to resolve conflicting slates of Electors received by Congress, and that Congress will choose the Electors they want if the states do not act first.

By the time of the joint session of Congress on January 6, Pence would have already asserted himself in his role by laying down the expectations of all the participants in the process that have a role to play prior to and on January 6. Pence did not do this.

Pence just showed up on the January 6 event to perform a ceremonial role of opening envelopes and reading votes, because he is not an assertive person and he chose not to be engaged in the process from beginning to end.

We want our elected Republican representatives to fight hard, but they won't. Even if they have an ace in the hole, they will still fold to the Democrat bluff hand after hand after hand. The few who do fight (e.g., Jim Jordan (OH), Allen West (FL, TX)) are threatened with redistricting by their own side.

And worse, they will tell the Democrats what they plan to do before the cards are even dealt! Just look at McCarthy announcing he will not impeach Biden, and McConnell saying he will make Biden serve as a moderate. There is no fight in either of them.

The Democrats know how to be power-grabbers; Republicans are repelled at the thought. Even President Trump abided by liberal judge-shopped court rulings and let years go by before appeals went his way, all the while listening to the LAAP-dog media calling him the dictator.

No Republican in Congress would want to stick their neck out while watching President Trump being lied about over and over in the media. It's almost like they've been Stockholm Syndromed by their Democrat captives to take positions against their own interests.

The Democrats know this, and strategize to take advantage of this fatal Republican weakness, because they know how to wield power and are unafraid to do it.

-PJ

I don’t know why anyone would think the 12th Amendment process for counting electoral votes is merely “ceremonial.” The text of the amendment very clearly describes a process that is more than ceremonial.

What has happened over time is that the process described in the 12th Amendment has become largely ceremonial because the events that would trigger the actions of Congress under the 12th Amendment — and which precipitated the adoption of the 12th Amendment after they previously took place in the early years of this country — simply haven’t taken place very much in recent years. I would contend that this is largely due to changes in the world related to modern technology that have rendered a number of constitutional processes “largely ceremonial.” Remember that the Constitution and it’s early amendments were written at a time when there were no modern forms of communication, and a horse was the fastest way for people to travel. Things that happen in minutes or hours today used to take days or weeks back then. Election results in states are published and broadcast long before Congress convenes to certify them. So what? It doesn’t make the process any less important, but it does change the way it unfolds in a formal setting.

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