Sunday, July 10, 2016

The Quasi-Unilateral Selection of Vice Presidential Nominees by Leading Presidential Candidates Is Contrary to the Constitutional Doctrine of the Separation of Powers

           The major American political parties’ Convention Delegates have the duty under their convention rules to nominate candidates for Vice President of the United States.  The Delegates must nominate and vote in favor of a candidate in order for that candidate to be their party’s vice presidential nominee.

In recent decades, however, it has become customary for the leading major party presidential candidates to recommend to their party’s Convention Delegates a vice presidential nominee, whom the Delegates have been accepting without making any other nominations and without even much opposition or debate, thereby making the vice presidential nomination a quasi-unilateral selection by the leading presidential candidate.  As people have become accustomed to this relatively novel practice, many of them now expect that the choice of a running mate is the sole prerogative of the leading major party presidential candidates and erroneously believe that anything to the contrary would somehow be against the rules or wrong, even though a selection by the Delegates is more representative than a unilateral one by the leading presidential candidate.

            Convention Delegates, who are the representatives of the members of their party, customarily had chosen their party’s vice presidential nominees through the 1950s, in the best interest of their party, often as a compromise, without any recommendation by the leading presidential candidate.  Dwight Eisenhower was the last President and Republican nominee who deferred to the Convention Delegates, instead of recommending a candidate.  The current practice of a quasi-unilateral selection by the leading candidate for the presidential nomination dates only from the 1960s. 

Among other potential problems of concern to the parties, this novel practice is contrary to good government because it violates the spirit of the Separation of Powers Doctrine of the United States Constitution.    

            It is necessary first to understand the office of Vice President.  The Vice President’s only constitutional role, other than being next in the line of presidential succession, is serving as President of the Senate.  This duty includes the power to cast tie-breaking votes, which is a strictly legislative power.  The Vice President is thus not an “assistant” or “deputy” President or “second in command” and the President is not the Vice President’s “boss,” as the Vice President is not part of the Chief Executive’s Administration; the President has no authority to delegate to the Vice President any duties, which is an even more recent practice.  Indeed, the Vice President is paid by the Senate, not the Administration.  Consider also that the President and Vice President are elected separately, as the Electors (members of the Electoral College) cast two separate ballots, one for president and one for vice president and, if no candidate receives a majority of electoral votes, the two chambers of Congress elect the President and Vice President separately, the House of Representatives the President and the Senate the Vice President, respectively. 

As President of the Senate, the Vice President is one of the two heads, together with the Speaker of the House, of the Legislative Branch of Government.  The President is the head of the Executive Branch of Government.  These branches are supposed to check and balance each other, in accordance with the constitutional principle of the Separation of Powers.  If a President signs an unconstitutional bill into law, the Vice President ought not to cast a tie-breaking vote in its favor, but vote against it.  Furthermore, the Vice President is not even obligated to vote the way the President wishes on general substantive matters, but should exercise his good judgment, in accord with his conscience, as a representative of the States and the people.  Divisions between Presidents and Vice Presidents were not unusual, especially in the early decades of the Republic, and were obviously not fatal to it. 

The quasi-unilateral selection of vice presidential nominees by the major party presidential candidates produces vice presidential candidates who seldom disagree publicly with the presidential candidate who chose them and to whom they are thus obligated and, once elected, to excessively-loyal Vice Presidents who seldom disagree with the President.  Instead of being checks on the President, Vice Presidents are tempted to be sycophantic and thereby to fail their duty to represent the States and the people, uphold the Separation of Powers and defend the Constitution.  

To restore the principle of the Separation of Powers, leading major party presidential candidates should defer to their party’s Convention Delegates in choosing a vice presidential nominee.  If the presidential candidates do make a recommendation, instead of accepting their presidential nominee’s recommendation without opposition or even debate, the Delegates, as representatives of the members of their party, should exercise their good judgment, in accord with their conscience, and at least debate the merits of the recommendation and consider nominating other individuals.

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