Law Commons^™

The Transformative Twelfth Amendment, Joshua D. Hawley

Faculty Publications

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 …