The Transformative Twelfth Amendment

Abstract

This paper argues that the Twelfth Amendment represents far more than a mechanical adjustment of the electoral college. Rather, it is the constitutional text that gives us the political presidency that we know today. The Twelfth Amendment worked a major structural change in the relationship between the legislative and executive branches and for that reason bears directly on the debate over the unitary executive and the meaning of “executive power.” Specifically, presidential removal power is best justified not by the original Article II, but by the constitutional structure the Twelfth Amendment created. And the scope and definition of executive power more broadly is best fixed by reference to the political character of the presidency the Twelfth Amendment constitutionalized. Contrary to conventional wisdom, the executive designed at Philadelphia was not a political office, but rather an apolitical administrator standing above partisan conflict. The office was not designed as a political policymaker or representative of the people. The Twelfth Amendment changed this. It quite deliberately converted the electoral college into a form of public election and in so doing, linked the presidency to popular majorities. The Amendment facilitated political competition for the office, unified the executive branch internally, and distanced it politically from Congress. The result was to give the executive a democratic warrant to take political action. This in turn changed the available scope, and perhaps the meaning, of the President’s “executive powers.” The new constitutional structure the Twelfth Amendment created indicates the President must have political control over the policymaking apparatus of the executive branch, and thus the power to remove principal officers, including heads of independent agencies. This structure also justifies significant presidential involvement in agency rulemaking, and may help more generally to fix the bounds of the President’s “executive powers.”