The Second American Revolution in the Separation of Powers

In this Article, Professor David Fontana explores the historical and constitutional origins of the internal homogeneity present in the American Executive Branch.  While most of the world’s other constitutional democracies exhibit political and ideological diversity among high-level Executive Branch members, the central players in the American Executive Branch usually are of the same political party.  In parliamentary, semi-presidential, and even presidential systems around the world, such internal homogeneity within executive branches is uncommon.  The situation in the American federal Executive Branch stands in contrast to the executive branches of most American states as well.  Whether due to having separately elected high-level executive-branch officials or due to the presence of more civil-service, nonpolitical high-level officials, American state executive branches exhibit a much higher degree of internal heterogeneity than their federal counterpart.  Fontana also contrasts the homogeneity within the American Executive Branch to the heterogeneity across the three branches of the American government caused by the separation of powers in the Constitution.  That is, the situation known as divided government—a Congress dominated by one party sending legislation to an Executive run by the other—is not an infrequent occurrence in America, whereas the Executive Branch is almost always completely internally homogeneous.

Fontana argues that this lack of internal separation of powers in the American Executive is primarily the result of the often underappreciated and understudied Twelfth Amendment, the passage of which constituted a second founding moment in American constitutional history.  Before the Twelfth Amendment, presidential electors cast ballots for two individuals without designating which office they wanted each candidate to hold.  The Twelfth Amendment, however, required electors to designate one ballot for President and one for Vice President.  On its own, this change in voting procedure would have been insufficient to create the almost entirely internally homogenous American Executive Branch present today.  In fact, Fontana finds that the Twelfth Amendment was not intended to eliminate internal heterogeneity in the Executive Branch at all, but instead to remedy the designation problem inherent in the old system.  However, those intentions notwithstanding, Fontana argues that the interplay between the Twelfth Amendment and the legal–political context that was to come that eradicated the diverse high-level Executive Branch.  While Fontana mentions the unwillingness and the sometime legal inability of electors to split their ballots for President and Vice President as possible factors, he argues that the declining importance of the Vice Presidency in the eyes of the electors and the rise of powerful political parties were the two most significant underlying factors that, when combined with the Twelfth Amendment, wrought the internally homogenous American Executive Branch.