Balkinization  

Monday, October 15, 2012

Interpreting the Twelfth Amendment

Gerard N. Magliocca

One of the golden oldies in constitutional interpretation is the question of whether the Vice-President can preside over his own impeachment trial as President of the Senate.  The constitutional text does not prohibit this obvious conflict-of-interest, but such a scenario is hard to reconcile with basic fairness.  (In Akhil Amar's new book, he makes a persuasive case that vice-presidential participation as a judge is his own case would violate the structural principles of the Constitution.)

A different question is presented by our practice under the Twelfth Amendment, which is that the Vice-President may preside over the count of the Electoral College when he is a candidate.  Al Gore did this in 2001 and ruled against members of the House who wanted to challenge the result in Florida. Indeed, as Bruce Ackerman and David Fontana showed in an article a few years ago, Thomas Jefferson gave himself a favorable ruling when he counted the votes from Georgia for himself in 1801.

Now here is my question.  The Twelfth Amendment provides that if no candidate for Vice-President gets a majority in the Electoral College "then from the two highest numbers on the list, the Senate shall choose the Vice-President."  Suppose the 2012 election ends in a 269-269 tie.  The new Senate (on Jan. 3) votes for Vice-President and splits 50-50.  Can Joe Biden cast the tie-breaking vote for himself?  If not, how would the tie be broken?

Comments:

Why not?
Can't candidates both for themselves in all elections?
 

Biden v. Romney, or Romney v. Biden
 

Of course he can. Being a real world document, the Constitution which was actually ratified has flaws. Originalists don't deny this, they just care that it IS the actual constitution, all the same.
 

funny you should ask http://www.pointoforder.com/2012/10/11/are-you-ready-for-the-romney-biden-administration/


 

It seems to me that there are three arguments against permitting the VP to vote here. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number,” which the 12th amendment says is necessary for a choice, because the VP isn’t a senator and therefore is not part of the “whole number” of senators. Second, as a matter of purpose or consequences, it is unlikely that the 12th amendment was intended to allow the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats).

Third, and perhaps most tellingly, the 12th amendment provides that a quorum for purposes of selecting the VP is two-thirds of the Senate, but a majority is necessary to a choice. Thus, 67 senators are enough to vote on the issue, but there must be 51 voting in favor of the winner. If only 67, or any number between 67 and 99, senators vote, and 50 vote for Biden, the Senate would not be equally divided, and thus the VP would have no vote.

 

The counter-argument, at least to the third structural point, would be that the Senate could require all senators to attend (which is true) and to vote (which I am not sure is true) and to make a choice between the two eligible candidates (ditto), thereby resulting either in one candidate winning outright or in a tie, which the VP could break.

Note the additional complications if one or more seats have not been yet filled (eg, because of a contested election).
 

Assuming that the VP cannot break the tie, then I suppose the Senate has two options (1) negotiate until an agreement is reached on a winner and (2) declare the Vice Presidency vacant, thereby triggering section 2 of the 25th amendment.


 

In 2000 the electoral vote was 271-266 (with one Democratic elector abstaining). Counterfactually, assume that two prescient Republican electors abstained from voting for Dick Cheney, meaning there was no electoral majority for Vice President. In that case, Senator Lieberman, the Democratic candidate for VP, could have voted for himself when the Senate elected the VP. How is an incumbent VP different?
 

This comment has been removed by the author.
 

As to who "cares" about the actual constitution, this might interest some:

http://sentencing.typepad.com/sentencing_law_and_policy/2012/10/john-paul-stevens-originalist.html

Labels aside, those who disagree with "originalists" (whatever type in question), "care" what is in the "actual" Constitution & realize it has "flaws." Being a "real world" document, they also find the path taken by originalists as often naive or misguided for just that reason.

---

Moving on. The 12A says "the Senate" should choose & it is unclear if "the Senate" should work differently on this matter in the case of a tie.

As the OP notes, self-interested parties acted in this context though like a President pardoning himself, arguably the "not a judge in your case" implicit rule might be in place.

Basically, arguments are present on both sides but good policy is for Biden not to vote since there is no compelling obligation to press such a bad policy. Good thing it is not likely to split 50-50 or we would have to hope one vote would be convinced to vote differently.

The vacant/25A route requires a confirmation by both houses. So, there remains a possibility of no relief, if the Senate continues to vote 50-50, the old VP's term up now & no tiebreaker present.

Or, at least one senator could have changed their mind and/or the President could have nominated a different VP that affected the proceedings.
 

The point about the VP candidate being a Senator and voting for himself is a good one.
 

It’s a fair point, but there are two separate issues here. First, does the Twelfth Amendment permit the VP to vote, regardless of whether he is a candidate? Second, assuming that the VP is generally permitted to vote, is there a particular prohibition when he is a candidate?

Taking the second question first, its true that there are instances where the Constitution grants a power and does not explicitly prohibit its exercise in conflict of interest situations. These would include (a) a Senator or Representative voting in a Twelfth Amendment election in which he or she was one of the candidates; (b).Members voting on their own elections, qualifications or discipline under Article I.; and (c) the VP presiding at his own impeachment trial.

Jim assumes that (a) is permissible and maybe it is. I merely observe that (b) is not permissible, at least under House precedent as I understand it, and Professor Amar apparently thinks that (c) is also impermissible. So I am not sure that the answer is that obvious.

My main point, however, relates to the first question, namely whether the VP has the power to vote, under the Twelfth Amendment, at all. I would argue that the high probability of a conflict of interest in any such voting is a strong reason not to construe ambiguous provisions as granting that power.

 

For once, I'm in complete agreement with Brett. There are many dumb things in the Constitution, of which this may be one. But it seems clear to me that the text of the Constitution allows the VP to break any and all tie votes.
 

Professor Levinson- it may be clear that the VP is permitted to break all tie votes (although I would note that it was at least somewhat controversial well into the 19th century whether the VP’s vote extended to procedural or organizational matters), but presumably the VP couldn’t break a 49-49 tie under the 12th amendment (or at least can’t break it in a meaningful way). It is also not clear (at least to me) that the VP is part of the “whole number” referred to in the 12th amendment. Finally, what happens if the vote is 50-49? There is no tie, so presumably it is “clear” that the VP cannot vote?
 

Incidentally, while I understand that Brett believes the Constitution should be read according to its plain text, even if the results are stupid, and Sandy believes that the Constitution is often stupid, that doesn’t mean we have to look for stupid results. “Where a meaning is clear, its consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”
 

"“Where a meaning is clear, its consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”"

Yup, I'm just concerned about the tendency to let concern for consequences cause doubt, where you wouldn't find any if you didn't give a damn what the consequences were.
 

Prof. Levinson should not be in "complete" agreement since the implication is that non-originalists don't "care" etc. There are "stupidities" in the Constitution as a book he was involved in notes.

I'm just concerned about the tendency to let concern for consequences cause doubt, where you wouldn't find any if you didn't give a damn what the consequences were.

If so, not sure why you implied "originalists" were the ones who "cared." Being the "real world," those who live in it care about consequences & try to avoid bad consequences when possible.

The Constitution is full with provisions that can be interpreted in various ways. It is likely in the "real world" for people to be more concerned about that when the results are bad.

This does not mean we should ignore what is in the actual Constitution but what is there (as mls etc. shows here) is often less clear than some might think. For instance, a President pardoning himself very well might have violated a basic due process principle that was understood to be implicit.
 

A world passed between 1804, the year of Amendment XII's ratification; and 1933, the year amendment XX was ratified. XX modified XII in part. Party politics became de rigeur in that time span. If the legislature assembled as the electoral college arrives at the described standoff, I would expect a partisan outcome, not a government in the style the French prefer to call co-habitation.

If all those contingencies come to pass, professor Levinson will be joined by many choruses asking for better rules, set at a limited constitutional convention. I even would predict invocation of the names of a few US Senate parliamentarians past!

I am not sure teaparty isolationism-conservatism-literalism is sufficiently entrenched, certainly not in the national legislature upper chamber, yet. Yet, it could prove interesting in the post-election-day time, given the constitution's careful respect paid to the lower chamber in such putatively contentious times.
 

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FWIW, Michael Ramsey agrees that Biden cannot vote under the 12th amendment http://originalismblog.typepad.com/the-originalism-blog/2012/10/eugene-volokh-on-the-twelfth-amendment-and-founders-errormichael-ramsey.html
 

mls provides us with a "Mikey Likes It" Life cereal endorsement, 'FWIW": perhaps a few bytes.
 

Its good to hear from you, Shag. I was worried that the title of Sandy's post "Was John Yoo right after all?" might have done you in.
 

No, I wasn't done in my Sandy's title, but it reminded me that I haven't had a "Yoo-Hoo" for quite awhile. Perhaps a more accurate title for Sandy's post might have been "Yoo of little faith" to byte the big one.
 

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