The transformative Twelfth Amendment.

AuthorHawley, Joshua D.
PositionAbstract through II. The Road to the Political Presidency, p. 1501-1541

Abstract

Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college--and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive's relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, but rather an apolitical office standing above partisan conflict. The Twelfth Amendment changed this design. It converted the electoral college into a form of public election, facilitating organized political competition for the presidency and linking the office to popular majorities. This revision of the electoral college had twin structural effects. First, the Amendment unified the executive branch under the political control of the President and made single-party control of the Executive a near certainty. Second, the Amendment changed the Executive's relationship to Congress by conferring on the President new warrants for political action and a representative status it had not previously enjoyed. Together, these structural changes altered the very nature of the Executive--and along with it, the meaning of "executive power."

TABLE OF CONTENTS INTRODUCTION I. Before the Revolution: The Philadelphia Presidency A. Mr. Madison's Project B. Making a Patriot King II. The Road to the Political Presidency A. Political Potentials 1. Politics and Structure 2. The Crisis of 1800 B. Reimagining the Executive III. A Revolution in Form A. Enter the Twelfth Amendment 1. Debate in the House 2. Debate in the Senate B. Changing Structure: What the Twelfth Amendment Did 1. Entrenching Political Competition 2. Warranting Political Action 3. Unifying the Executive IV. Structural Reasoning About the Executive A. A Brief Defense of Structural Reasoning B. Application: The Removal Power 1. The Core Argument 2. Cases and Controversies a. Myers v. United b. Humphrey's Executor c. Bowsher v. Synar d. Morrison v. Olson C. Other Applications 1. The Treaty Power 2. Directive Authority over Administrative Agencies CONCLUSION "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each.... The person having the greatest Number of votes for President, shall be President, if such number a majority of the whole number of Electors appointed; and if no person have such a majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. "

--U.S. Constitution, Amendment XII (1804).

INTRODUCTION

It is time the Twelfth Amendment got its due. For years, the Amendment has been regarded as a constitutional nonentity--a piece of textual fiddling not worth remembering or one that, if it bears any significance at all, serves only to illustrate the irredeemable absurdity of the electoral college. (1) Legal scholars have all but ignored the text; historians, similarly, have given it little attention. (2) The conclusion that the Amendment is inconsequential is prevalent and well-established. It is also wrong. Contrary to decades' worth of conventional wisdom, the Twelfth Amendment is in fact a transformative constitutional text that fundamentally altered the structure of American government by altering the character of the presidency and its relationship to the government's other branches. Indeed, the Twelfth Amendment is in many senses responsible for the modern separation of powers and the presidency as we know it today.

The Twelfth Amendment changed the presidency by making it into something it had not been before: a political office. This change in the basic character of the Executive is a fact long overlooked by legal scholars, but one which has major import not only for the functioning of the constitutional system, but also for the meaning of the "executive power" referenced in Article II, Section 1, (3) as well as the other, enumerated powers of Sections 2 and 3. (4) The Executive designed at Philadelphia was an utterly original invention, so much that the Framers reached little consensus among themselves on how precisely it would operate. (5) What they did agree on was that the President was not to be a political actor. (6) In the Framers' scheme, Congress was the branch that represented the people and the branch that made policy; it was Congress that stood at the center of the Madisonian plan to 'refine and enlarge" popular opinion into a truly public-spirited national will. (7)

By contrast, the original Constitution cast the Executive as a check on congressional excess and as an enforcer of congressional laws. (8) Under the direction of a single President, the executive department would supply "energy" to law enforcement and enable the national government to meet emergencies with dispatch. (9) But beyond devising rules for consistent law administration, the President was not to advance policy on his (10) own. (11) No Framer imagined the President as the proponent of a legislative agenda, still less as the advocate of a particular political philosophy or spokesperson for political faction. (12) And the Framers certainly did not envision presidential election as the signal political event of the national republic, organizing the country's politics and driving its political debate. (13)

All those things happened after Philadelphia, and all of them were made lasting by the Twelfth Amendment. The text altered constitutional structure in critical ways. By instructing electors to designate which of their ballots was cast for President, and which for Vice-President, the Amendment facilitated organized electoral competition for the presidency, connecting the office to popular majorities in a way it had not been before. (14) As it made the presidency more majoritarian, this change in balloting eroded the independence of the Vice-President and denigrated that office's political significance, rendering the executive branch at once more politically homogeneous and more politically unified under presidential control. (15) Coupled with further changes that reduced the number of candidates referred to the House of Representatives in the event of a disputed election, the total effect of the Amendment was to make the presidency a more truly representative and more populist political institution. (16) And this internal change in the Executive's character worked an external shift in the Executive's structural relationship to the other branches. The presidency's new connection with the public conferred on the office new warrants for exerting political leadership and also conveyed new incentives to act and lead, as well. (17) After the Twelfth Amendment, the presidency would become and remain an active, co-equally political branch.

This mostly forgotten history has potentially broad implications for the meaning of the President's executive power and for his place in the Constitution's scheme of separated powers. This is because the content of executive authority is perhaps uniquely determined by constitutional structure. The text of Article II provides notoriously little guidance as to what executive power really consists of. Section 1's reference to "the executive power" leaves that term undefined, (18) and the list of discrete authorities conferred on the President in Sections 2 and 3 is terse, if not Delphic, and susceptible to widely divergent interpretations. (19) Justice Robert Jackson famously observed sixty years ago that "[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." (20)

And indeed, the powers and responsibilities outlined in Article II may mean quite different things depending on the character of the office to which they belong. The President's power to recommend to Congress "such Measures as he shall judge necessary and expedient," (21) for instance, or to appoint officers of the United States (22) or to negotiate treaties, (23) appear in one light if exercised by an apolitical officer whose principal function is to facilitate congressional government, and in quite another if deployed by an elected representative of the people with authority to make policy and engage in political dispute.

By transforming the presidency from an apolitical office into a robustly political one, the Twelfth Amendment transformed the constitutional order. In the Parts that follow, I propose to examine this structural shift and its consequences. I begin in Part I with a fresh analysis of the Executive that the Framers actually designed, finding it to be notably different from the one legal scholars all too frequently presume them to have intended. When we set aside modernist assumptions about presidential power and resist the urge to read later constitutional developments back into the text, we discover that the Framers' Executive was an institution insulated from, rather than connected to, the people. In Part II, I trace the discovery in the 1790s of the presidency's political potential, a discovery that proved so disruptive that it threatened a constitutional...

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