The Constitutional Role of the Vice President
The position of vice president has been ambiguous from the very beginning of the American state. There was a belief that such an office was needed in case of various unforeseen circumstances (the rejection of the monarchy meant that in the event of the death or illness of the head of state, there would be no heir to the throne), but at the same time it was not clear what scope of competences the vice president should have. John Adams, the first Vice President of the United States, is said to have called the office he held "the most insignificant office ever conceived or imagined by man."
According to the original wording of the Constitution, the Vice President is elected together with the President for the duration of the same term of office (Article 2, Section 1), and the principles for their election are specified in further provisions of the Constitution. However, they were changed by the adoption of the Twelfth Amendment in 1804. The Constitution also provides that the Vice President may be removed from office (like the President and other civil officers) by impeachment upon conviction for high treason, bribery or other high crimes and misdemeanors (Article 2, Sec. 4). In addition, the Vice President also holds the office of ‘President [Chairman] of the Senate’ but with the right to vote only in situations of evenly split voting (Article 1 Sec. 3).
The role and functions of the vice president began to be discussed more broadly only in the 20th century. Detailed issues concerning the assumption of power by the Vice President in various unexpected cases were specified in subsequent amendments to the Constitution – the Twentieth (1933), the Twenty-third (1961) and the Twenty-fifth (1967).
A difficult choice
The experience of the first dozen or so years of practical application of the provisions of the Constitution has shown that the initially adopted model of electing the president and vice president has not worked. Originally, the vice-president of the United States was declared to be the one of the two presidential candidates who received the fewer number of votes. In other words, the vice-president did not have to be a ‘companion’ of the president at all, who supported them politically, but could present their own different policy. This was the case during the second presidency, when relations between John Adams and his vice president, Thomas Jefferson, were more than frosty. Jefferson openly opposed and criticised Adams' policies, while at the same time making his own political capital, which led him, during the 1800 election, to win the office of President of the United States and defeat the current president seeking re-election, namely Adams.
A wide range of American politicians have therefore concluded that the principles of electing the president and vice president expressed in Article 2, Section 1 of the Constitution must be changed. An amendment that was to reform the electoral system was introduced in Congress in December 1803. A constitutional majority of three-quarters of the states voting in favour of the amendment was achieved on 15 June 1804 (thirteenth of the seventeen states voted). Two states (Delaware and Connecticut) were against it, while two states supported the amendment after the required majority had been achieved – Tennessee in July 1804 and Massachusetts not until 1961!
According to the wording of the amendment, electors must cast two independent votes – one for president and one for vice-president. Two separate votes are therefore held.
The amendment was adopted before the elections scheduled for the end of 1804. Thanks to this, the fifth presidential election in the history of the United States could be held according to the new rules. During this election, Thomas Jefferson was elected to a second term as president, and George Clinton was elected his vice president.
The Vice President's Non-Obvious Role
The role of the Vice President of the United States is shaped largely by constitutional custom. The mutual relationship between the president and the vice president and the determination of the scope of the vice president's competences by their superior also play an important role.
An interesting constitutional solution, explicitly indicated in the text of the Constitution, is to entrust the Vice President with the function of President of the Senate. According to Article 1, Section 3 of the Constitution, the Vice President "shall be the President of the Senate, but without the right to vote, unless the votes are equally divided." Furthermore, the same section provides that "The Senate shall choose its other Officers, including a President pro tempore, to act as the Vice President, or when the latter shall act as President of the United States."
Nowadays, the office of the President of the Senate, performed by the Vice President, has an extraordinary and, in a certain way, honorary nature. This was not the case, however, at the beginning of the 19th century, when the role of the vice president was not yet well established by constitutional custom. First vice presidents often presided over the work of the Senate. Today, such situations occur exceptionally and are rather of an honorary nature. Vice presidents co-chair the joint session of the combined chambers of Congress during the annual State of the Union addresses or preside over Senate meetings during the swearing-in of new senators.
The Vice President, as President of the Senate, has a unique role to play during the procedure for approving the results of the presidential election. According to current regulations (the aforementioned Twelfth Amendment to the Constitution), the electors are required to send sealed ballot results to the President of the Senate after casting their votes in their states. After receiving all the voting results, the President of the Senate officially counts the electoral votes in the presence of the two combined chambers and approves the election results.
There have been four occasions in the history of the United States where vice presidents, as President of the Senate, have declared their own victory in the presidential election. This situation occurred in 1797 (John Adams won), in 1801 (Thomas Jefferson won), in 1837 (Martin Van Buren won) and in 1989 (when George H.W. Bush won). If Kamala Harris wins this year's U.S. presidential election, she will be the fifth vice president to announce her own election as president of the United States.
The Twenty-fifth Amendment to the Constitution
As already mentioned, the 20th century saw a refinement of the vice president's constitutional position. Through several amendments, their position was strengthened at the time. The most interesting and potentially most serious changes are those contained in the Twenty-fifth Amendment to the Constitution. It entered into force on 23 February 1967, a little over three years after the assassination of President John F. Kennedy. The proposed amendment was a direct result of the events in downtown Dallas. Its main purpose was to improve the mechanisms of government operation in emergency situations that prevent the president from holding office. Although the events in Dallas led to the adoption of the amendment, there have been previous situations involving U.S. presidents that have raised questions about the succession of power and action in emergency situations. In the 20th century alone, prior to Kennedy's assassination, there were several such situations – in 1919 Woodrow Wilson suffered a serious stroke that prevented him from efficiently carrying out his office; President Dwight D. Eisenhower became seriously ill several times during his presidency, including a heart attack in 1955; Richard Nixon, who was vice president at the time, replaced him at the time, although he was not formally authorized to do so.
Taking the above into account, in the 1960s it was decided to regulate these issues. The amendment covers several situations in which the active participation of the Vice President is provided for.
First, Section 1 of the amendment indicates that in the event of the removal of the President from office or in the event of his death, the Vice President shall immediately begin to serve as President of the United States. Since the amendment was adopted, the provisions of this section have been used once, that is, in 1974 with the resignation from office of Richard Nixon.
Section 2 directs the president to appoint a vice president if the office becomes vacant. The appointment of a new Vice President is decided by Congress in a vote. Both chambers must approve the nomination by a simple majority vote. Before the adoption of the Twenty-fifth Amendment, the vacancy during the term of office of the vice president did not impose an obligation to appoint a successor. This procedure has been used twice so far: in 1973, Richard Nixon named Gerald Ford as his vice president, and then, after Nixon resigned and Ford took office, Nelson A. Rockefeller became vice president.
Section 3 provides for the Vice President to assume the role of “Acting President.” Whenever the President of the United States notifies in writing the President pro tempore of the Senate and the Speaker of the House of Representatives of his temporary inability to hold office, his functions shall be performed by the Vice President until a statement revoking the former is sent to the same persons. Section 3 has been used three times so far. In 1985, George H.W. Bush served as Acting President while Ronald Reagan was undergoing surgery to remove cancer. In 2002 and 2007, when George W. Bush underwent colonoscopies that required him to be given anaesthetics, Dick Cheney remained in office for several hours.
Section 4, which has not yet been used, provides for the possibility of removing the president from office when the vice president, together with a majority of the cabinet members, provides the President pro tempore of the Senate and the Speaker of the House of Representatives with a written statement that they consider the president unfit to perform his or her functions. Upon the transmission of such letter, the Vice President of the United States immediately begins to perform the duties of President. The latter may send his own declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, after which he regains the functions that he previously lost. However, if the vice president and members of the cabinet again submit a declaration of incapacity within four days, the matter must be decided by Congress by a vote of 2/3 majority in both chambers. Until the matter is resolved by Congress, the Vice President performs the duties of the President.
This most extreme solution has not been used so far, although according to various media reports, the use of the described mechanism has been considered twice. For the first time in January 2021, part of Donald Trump's cabinet sought to initiate proceedings to remove the president from office following the events known as the storming of the Capitol. Some journalists close to the current White House administration reported that similar talks had taken place in June and July of the current year, just before President Joe Biden withdrew from running again for the presidency.yły się w czerwcu i lipcu bieżącego roku, tuż przed wycofaniem się Prezydenta Joe Bidena z ponownego startu w wyborach prezydenckich.
Text: Dr hab. Łukasz Jan Korporowicz, Associate Professor at the University of Lodz
Centre for Anglo-American Legal Tradition / Department of Constitutional Law, University of Lodz
ORCID: 0000-0002-5725-5018
The article is a part of the ConLaw24 series, in which the Centre for Anglo-American Legal Tradition takes a closer look at the intricacies of the American legal and political system. We will publish new texts every Tuesday until election day.
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