Author: Michael Stern

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Could Biden Vote Under the 12th Amendment?

In a previous post, we briefly discussed the question of whether the Vice-President could vote in the Senate in the event of an electoral college tie followed by a tie vote in the Senate to elect his successor under the 12th Amendment. Over at Balkinization, Professor Gerard Magliocca asks the same question.

My view, which I sketched out more in comments to Magliocca’s post, is that the 12th amendment does not permit the Vice-President to vote for three reasons. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number.” The 12th amendment says that, if no one receives an electoral college majority for Vice-President, “the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”  The Vice-President is not a Senator and therefore not part of the “whole number;” thus, his vote would seem irrelevant to obtaining the necessary majority.

Second, to the extent that the 12th amendment is ambiguous on this point, there are strong reasons not to interpret it as authorizing the VP to vote.  At the time the 12th amendment was adopted, it was not yet established that the VP could vote on matters beyond ordinary legislation. Moreover, it seems unlikely that the framers of the 12th amendment would have intended 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). Thus, the 12th amendment’s silence should not be taken as an implicit authorization for the VP to vote.

Third, Article I prohibits the Vice-President from voting unless the Senate is “equally divided.” Thus, if one Senator did not vote, resulting in a 50-49 vote, the VP could not vote, yet there would not be the necessary majority to make a choice.

I think these arguments are pretty strong. (This blog, although written by a non-lawyer, makes a similar case). It does not seem Professors Magliocca or Sandy Levinson are persuaded, but Professor Michael Ramsey is.

If others in the law professoriate weigh in, let me know in the comments.

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Recess Appointments Panel this Thursday

This Thursday, October 25, from 9am to 10:30am, I will be moderating a panel discussion at the ABA Administrative Law Conference entitled “Recess Appointments: Legal Challenges to President Obama’s appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.” The panelists will be Ambassador C. Boyden Gray and Professor Michael Gerhardt, both of whom testified before Congress earlier this year regarding the recess appointments (Gray is also representing the plaintiffs in the legal challenge to the CFPB).

The conference is taking place at the Capital Hilton; registration information is here.

 

 

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Attorney General Opinions on Recess Appointments

I know what you’re thinking. Where can I find a comprehensive guide to U.S. Attorney General opinions on recess appointments? Complete with handy summaries and links to explanatory posts?

Look no further. Like Tom Lehrer’s musical rendition of the elements, the listing below may prove useful to some of you someday, under a somewhat bizarre set of circumstances.

  Continue reading “Attorney General Opinions on Recess Appointments”

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Are You Ready for the Romney-Biden Administration?

The Real Clear Politics Electoral College Map currently has the Obama/Biden ticket with 210 electoral votes and the Romney/Ryan ticket with 181. There are 12 “toss up” states with 156 electoral votes. If the toss up states are given to the slate to which they are currently leaning, Obama/Biden has 294 electoral votes and Romney/Ryan 244.

However, if just three of the closest toss up states (Virginia, Iowa and Nevada) were to switch to the Romney/Ryan camp, it would result in a deadlocked electoral college, with each ticket having 269 electoral votes.

Supposing that were to actually occur, what would happen? Under the Twelfth Amendment, if no person receives a majority of the electoral vote for President, “then from the persons having received 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.” Presumably that list would consist only of President Obama and Governor Romney, although note that any one elector could expand the list by voting for someone else.

The choice of the President would be made by the 113th Congress so we do not know what the exact partisan breakdown of the newly elected House will be. However, the voting for the presidency would be by state, not by individual member, and, as this CNN article suggests, it is highly likely that the Republicans will control a majority of the state delegations, even if the Democrats win back control of the House. Thus, it seems that Governor Romney would be the heavy favorite.

If no person receives a majority of the electoral vote for Vice-President, the Twelfth Amendment provides that “then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.” We do not know who will control the Senate in the next Congress, although the Democrats appear to be the favorites at this point. Thus, the odds suggest that Vice-President Biden would be elected by the Senate.

But what happens if there is a 50-50 tie in the Senate? Could Vice-President Biden vote to break the tie in his own favor? This article says yes, but I am not so sure. One could argue, it seems to me, that the “majority of the whole number” refers to the whole number of Senators, and that the Vice-President’s vote cannot create a majority of that number. There would also be, I imagine, objections raised to the Vice-President voting in his own election. So we can consider that an open issue for the moment.

 

Update: Writing in the Washington Examiner, Philip Klein also suggests that Biden could cast a tie-breaking vote for himself. However, the more I think about this, the more I tend to think it is wrong. Suppose 50 Democratic Senators vote for Biden, but one or more Republican Senators did not vote, so that Ryan receives 49 or fewer votes. Biden would not be able to vote because the Senate would not be “equally divided,” but no one would be elected because the winner must receive the votes of a majority of the whole number (ie, 51).

Note the additional complication that could occur if a Senate seat were vacant as of January 3, 2013 (because, say, the election was contested and the state had not yet certified a winner). In that case there would be a question whether the “whole number” referred to by the 12th Amendment is 100 or only the total number of Senators seated and sworn (i.e., 99).

 

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Recusal Confusion- A Final Post on the Waters Case

Now I will turn to the other major issue in the Waters case, which relates to Outside Counsel findings that (1) Representative Waters properly recused herself and her office from the OneUnited matter following the September 9, 2008 meeting, and (2) Mikael Moore, her chief of staff (and grandson), violated her instructions and improperly remained involved in the OU matter. As discussed below, both of these conclusions are problematic.

Following the September 9 meeting, Waters realized that her involvement in OneUnited Bank’s “asking for money” would present a conflict of interest or appearance of impropriety. This realization was likely triggered by (1) a telephone call from Treasury Secretary Paulson and (2) learning what had transpired at the September 9 meeting.

Continue reading “Recusal Confusion- A Final Post on the Waters Case”

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The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)

Now let us turn to one of the two key issues in the Waters ethics case: whether Representative Waters violated any ethics rules when she called Treasury Secretary Paulson to arrange the September 9 meeting.

Outside Counsel’s ability to analyze this question is compromised by its unwillingness to confront the reality of what happened at the September 9 meeting, as described in my last post. Outside Counsel treats the matter as if NBA (the minority bank trade association) had approached Waters and asked her to set up a routine agency meeting on an issue that widely affected its membership. Based on that framing of the issue, Outside Counsel concludes that there was nothing inappropriate (or even questionable) about Waters’ actions.

Unfortunately, this is not what happened. Waters was not approached by NBA professional staff, or by a group of minority banks, but by two senior officials of a single bank, OneUnited (in which her husband happened to own $350,000 worth of stock). Nor was she merely asked to set up a routine meeting, but to call the Treasury Secretary personally. This is obviously not an everyday constituent service (Waters stated in her OCE interview that “you don’t use your chits for nothing, you call when there is an important issue”) and Outside Counsel does not cite any evidence that Waters had ever arranged a similar meeting for anyone else.

Continue reading “The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)”

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The Waters Outside Counsel and the September 9, 2008 Treasury Meeting

To begin unpacking the report of Outside Counsel Billy Martin on the matter of Representative Maxine Waters, I will start with the meeting that took place on September 9, 2008 at the Treasury Department. This meeting is key to understanding the events that took place, and the evidence is very clear as to what transpired. Yet for some reason Outside Counsel seems more interested in obscuring than in illuminating these facts.

The September 9 meeting was memorialized in this one-page memorandum dated that same day and sent by Erika Jeffers, a House Financial Services Committee counsel, to Chairman Barney Frank.

Continue reading “The Waters Outside Counsel and the September 9, 2008 Treasury Meeting”

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The Notebook- House Ethics Committee Edition

Fans of the Maxine Waters ethics case (you know who you are) may recall that one of the controversies between Blake Chisam, the former Staff Director and Chief Counsel of the Ethics Committee, and the two senior counsel leading the Waters investigation (Morgan Kim and Stacy Sovereign), involved the binders that were handed out to committee members at a November 18, 2010 meeting. According to Chisam’s late 2010 memorandum to Chairman Lofgren, providing the reasons for terminating Kim and Sovereign:

            At that meeting, white binders were handed out to all the Members of the adjudicatory subcommittee, as well as the Chair’s and Ranking Member’s designated counsels. They were being passed out from a box. The Ranking Member’s counsel was helping to hand the binders out. Since the Waters staff [Kim and Sovereign] served as advocates, they could not be present at the ASC [Adjudicatory Subcommittee] discussion absent an invitation for participation by respondent. The binders were prepared by the Waters staff for the meeting. There were copies of the binder that were flagged, highlighted and contained handwritten notes and explanations when they came out of the box. The marked up copies were provided to Republican Members. Democratic Members did not receive annotated binders.

 So there you have it. Selective highlighting. Discriminatory annotation. Ex parte flagging. Such serious charges require a full investigation, preferably conducted by an outside lawyer whose hourly fee exceeds the average American’s mortgage payment.

Fortunately, we now have the report of Outside Counsel Billy Martin, who has cracked the case of the great notebook caper wide open. His report states (page 21):

During the course of the Outside Counsel’s review, Outside Counsel located  and reviewed what Outside Counsel believes are those very notebooks.

Eureka! (I hear you cry). Outside Counsel has located the very notebooks. The instruments of the crime. The murder weapon itself, so to speak. Surely the perpetrators of this dastardly deed will no longer go unpunished. Read on:

Outside Counsel determined that only one tab and minimal highlighting was placed on the notebooks in question. In addition, the designee to the Ranking Member testified that she had highlighted the binders to assist the Republican Members to more easily locate the documents that were going to be discussed at the meeting. As this was done by the designee to the Ranking Member, who was acting within the scope of her services and authority, and not by a staff member to assist one party, there is nothing noteworthy about the highlighted binders.

Nothing “noteworthy,” get it? Outside Counsel is Hercule Poirot and Jimmy Kimmel rolled into one. Sadly, however, our mystery seems to have gone from Murder on the Orient Express to Murder by Death.

Perhaps even sadder is the fact that absolutely nothing turned on the resolution of this controversy. Even if Kim and Sovereign had been responsible for marking up the binders, and even if the marking had been for a more nefarious purpose than helping the Republican Members more easily locate the relevant documents, it would not have changed the handling of the Waters case going forward. Martin would still have recommended the same action, namely the recusal of those committee members involved in the Waters matter in the prior Congress.

Gee, if only someone could have pointed that out in advance.