"Commander in Chief": A New TV Drama Raises Constitutional Questions Worthy of Discussion
Part One in a Series

In a series of columns beginning with this one, I will analyze some constitutional questions this new drama raises or suggests. In today's column, I'll consider Allen's defense of the way she gained office.

How Allen Became President: Ignoring the President's Resignation Request

In the storyline, Allen was Vice President to Republican President Theodore Bridges, but her politics were more centrist than his. A non-partisan Independent, she was apparently added to the ticket more for her campaign allure than for her substantive ideas of how to govern.

When Bridges fell ill, he asked Allen to resign. His plan was that he himself could then resign and the like-minded Republican Speaker of the House would then become President. (The Speaker is the next person in the statutory line of succession after the Vice President).

But Allen didn't resign. Instead, when President Bridges died, she ascended.

In last Tuesday's episode, when Bridges's deathbed request and Allen's refusal to honor it became public, Allen faced harsh criticism. Defending her decision not to honor her President's wishes, she said: "He had no authority to ask that of me. . . The People elected me to this position, and only the People and their representatives can ask me to step down."

The latter part of her statement plainly refers to the impeachment power: Vice Presidents as well as Presidents can be impeached by the House and then tried and convicted in the Senate as a means of removal.

But is she right that the impeachment route is the only way a Vice President can be ousted? Or should a Vice President also agree to a President's request to resign? (The show does not raise, and I do not discuss today, another possible means of Vice Presidential ouster - criminal indictment and conviction before impeachment.)

Should the Fact that Vice Presidents are Elected Free Them From Their Presidents' Wishes?

There is no constitutional provision that when best read seems to authorize Vice Presidential removal by the President. At the level of formal constitutional law, then, Allen's bottom line that she need not resign when asked seems correct. But at another level - that of constitutional structure and values -- is there any argument to be made that a Vice President should ordinarily accede to the removal wishes of the President?

Part of the answer to that question may depend on the force of Allen's suggestion that the "People elected her" to be Vice President in the first place. Did they elect her? Or did they really elect the President, with her merely accompanying him on the ticket?

Technically, the electors selected by the fifty states and the District of Columbia to the so-called "electoral college" cast their votes separately for President and Vice President. But each of the fifty states and the District of Columbia has chosen - even though nothing in the Constitution or federal statutes compels this choice - to prohibit "ticket splitting" between the offices of President and Vice President.

That is, each state selects a slate of electors pledged to support a President and a Vice President who are part of unitary ticket; citizen voters (and electoral collegians) cannot pledge support for a Vice Presidential candidate without also pledging support for a Presidential candidate of the same ticket at the same time.

Thus, although Vice Presidents are "elected," they are not elected independently of the Presidents to whom they are linked. Each major party picks its Presidential candidate, and then lets the Presidential candidate pick his/her Vice Presidential running mate. And the vast majority of citizen voters decide which ticket they support based much more on the person heading the ticket (the President) than the number-two person.

Indeed, my brother Akhil Reed Amar and I have pointed out that if ticket-splitting between Presidents and Vice Presidents were allowed, Vice Presidents might have a much stronger claim to electoral legitimacy than they do today. And perhaps even the caliber of Vice Presidents as a whole might increase (since a strong Presidential candidate would no longer be able to "carry" a weak Vice Presidential candidate.)

As things stand today, though, a Vice President's claim to have a mandate from the people that would rival the mandate enjoyed by a President who wanted her out would seem somewhat weak. (By the way, on the TV show President Allen's reliance on her electoral mandate as a basis for refusing to resign seems in some tension with the fact that she was initially prepared to resign on President Bridges' request, and changed her mind only when she saw how vile the Speaker of the House was.)

Are Vice Presidents Really Members of the Executive Branch Team?

Now let's move beyond how a Vice President got there, to what a Vice President does under the Constitution. Should we consider a Vice President a true member of the Executive Branch team, like a Cabinet head, such that she should follow the wishes of the team leader (the President)? Or is her status significantly different from that of a Cabinet head?

Under the original Constitution, the Vice President is not formally given any executive responsibilities. The Constitution of 1787 specified only two real jobs for Vice Presidents. One is to wait around in case the President is unable to discharge his duties. The other is to preside over the Senate in the meantime. Neither one of these functions seems quintessentially executive. Indeed, the function of presiding over the Senate--and casting its tie-breaking vote--seems downright legislative. (Thomas Jefferson voiced the view that the Vice President was more a legislative than an executive agent.)

It is worth reiterating, here, that the Constitution's text does not give the President the explicit power to remove a Vice President; contrast that with the way the constitutional power to appoint and seek opinions from cabinet members has been textually construed to carry with it a presidential power to remove such persons.

Why Founding History Sheds Little Light on the Vice Presidency's Nature

If we move from constitutional text to founding history, the question whether the Vice President should be considered a high-level executive insider gets even muddier. The primary reason for that is the clear (albeit little-known) fact that both the Framers and later generations of Americans gave rather little thought to the Vice Presidency and its role in executive administration.

The very idea of a Vice Presidency was dreamed up only in the closing days of the Philadelphia Convention of 1787, and its chief value was as one cog in an intricate electoral- college contraption regulating presidential elections. Delegates worried that after George Washington left the political scene, each state might simply cast all its electoral votes for its own favorite son. But then this scattering of electoral votes would deny any one candidate a majority and thus throw every presidential election into Congress, in which case the executive might become overly dependent on the legislature.

The Philadelphia delegates' ingenious solution was to require each state to vote for two persons--one of whom must be an out-of-stater--with the top vote-getter winning the presidency. This rule would give a boost to national candidates--respected statesmen who might be everyone's second choice after the local favorite son.

Meanwhile, to discourage states from gaming the system by wasting their second (out-of-state) vote--thereby cycling back to a fractured world of favorite sons--the Framers created an office called the Vice Presidency, and provided that this office would go to the runner-up in the presidential race. Thus states would have strong incentives to take their second (out-of-state) vote seriously.

In light of this history, it is hardly surprising that the Founders' Constitution neglected to specify certain critical details concerning the Vice Presidency and its relationship to the Presidency itself and the rest of the executive branch.

Nor do the circumstances in 1804 culminating in the passage of the Twelfth Amendment - which now requires electoral collegians to vote separately for President and Vice President -- clarify matters much. The Amendment was designed primarily to avoid "tie" votes in the electoral college, and was not particularly intended to bring Vice Presidents more within Presidents' Executive Branch teams.

Indeed, to the extent that the Twelfth Amendment seemed to make less likely the incidence of a President of one party and a Vice President of the other party getting elected (as happened with John Adams and Thomas Jefferson in 1796), some Twelfth Amendment framers seemed to lament, rather than celebrate, this side effect.

Critics of the Twelfth Amendment predicted that it would diminish the quality of future Vice Presidents, who would no longer be major presidential candidates in their own right, but merely second-fiddles to party leaders. This criticism proved prescient. So long as Presidents stayed healthy in office--as did the first eight Presidents spanning the Constitution's first half century-- the vice presidency received rather little attention.

In fact, for much of American history--around thirty-seven of the Constitution's first 180 years--the country did without a Vice President entirely, yet few seemed to notice. The first vacancies occurred in James Madison's presidency, when his first term Vice President George Clinton died in 1812, and his second term Vice President Elbridge Gerry died in 1814. Under the Philadelphia Constitution, no mechanism existed to fill a vice presidential vacancy--yet another signal of the low status of the office in early America.

Does the Twenty-Fifth Amendment Change Anything?

The Twenty-Fifth Amendment, proposed and ratified after John Kennedy's assassination, fills many of the gaps left open by the Founders. For starters, the Amendment resolves a question Vice President John Tyler confronted in 1841 when President William Henry Harrison became the first chief executive to die in office: Does a Vice President who ascends on account of death become "President" or merely "Vice President acting as President"? In order to claim the higher salary enjoyed by Presidents, Tyler argued in favor of the former, but the question remained textually open until the 1960s.

Under the terms of the Twenty-Fifth Amendment, when the President dies or resigns or is removed from office, then-- and only then--the Vice President does in fact "become President." Otherwise, if the President is merely disabled (perhaps only temporarily) from exercising the powers and duties of his office, then the Vice President may step in and "assume the powers and duties of the office as Acting President" without prejudice to the President's ability to resume his post if and when he has recovered from his disability.

The Twenty-Fifth Amendment also provides a clearer framework for determining whether the President is in fact disabled, and for how long. This framework specifies the precise roles of the President, the Vice President, the cabinet, and the Congress in resolving questions about possible disability. In some ways, the Vice President is treated in this process akin to a member of the cabinet for assessing whether the President is disabled.

And yet another provision of the Amendment allows a President, with congressional approval, to fill a Vice Presidential vacancy. Through this amendment, Richard Nixon named Gerald Ford to the Vice Presidency when Spiro Agnew left office in 1973; and Ford in turn appointed Nelson Rockefeller in 1974 when Ford himself became President upon Nixon's resignation.

The Twenty-Fifth Amendment Suggests Vice President Allen Perhaps Should Have Resigned

All these changes brought by the Twenty-Fifth Amendment might have important consequences for the issue of how we characterize a Vice President. By formalizing succession, by making the Vice President part of the cabinet for purposes of determining presidential disability, and by making constitutionally clear that the President gets to choose persons to fill Vice Presidential vacancies--making succession apostolic, if you will--the Amendment strongly suggests that, today at least, the Vice President is a more full member of the President's Executive team. The Twenty-Fifth Amendment may have accounted for the Supreme Court's seemingly reflexive acceptance of the idea that a Vice President is a core Executive Branch
member for purposes of executive privilege in the energy task force case involving Dick Cheney two Terms ago.

This Amendment, much more so than the Twelfth, then, formally concretizes an evolving importance of the vice presidency to the executive branch. As a result, it might provide a possible basis today for a claim that a Vice President should ordinarily honor the wishes of the President concerning resignation, especially - as in the "Commander in Chief" show - when the President's request is itself made in contemplation of the President himself resigning and invoking the Amendment.

More next time. Stay tuned.