The latest spending bill passed by Congress is getting a lot of attention by Trump supporters for including language that makes it clear that the vice president does not have the power to reject electors. This new language has prompted the former president to proclaim that his claims that Pence had the power to dismiss electors were correct; otherwise, why the new language?
Clarifying statutory language does not cede that all possible interpretations were previously valid. Any parent knows that the follow-up of “don’t play in the street” does not mean that previous permission to play outside included playing in the street. Likewise, this new language makes explicit what was implicitly true: the vice president merely counts the electoral votes.
The ordinary meaning of “count” does not include invalidating and rejecting what is counted. There’s no indication that the ratifiers of the 12th Amendment intended the word “count” to mean anything beyond determining a total. There are also no other Constitutional provisions that give Congress a role in determining the validity of electoral slates submitted by the states. Where there is no provision, there is no power.
So no, this new bill is not vindication. It is an explicit repudiation of Trump’s argument.
Jacob Hibbard
Highland