Monday, June 27, 2016
Sunday's season finale played out the constitutional election/selection/succession contingencies to the last, producing what, in reality, would be a genuine constitutional and political crisis. And it leaves the show in the position of a genuine reboot when it comes back next season, which presents some interesting possibilities.We begin before the Senate vote for Vice President, which Tom James expects to win. He and Meyer are negotiating her role in his administration--she wants to be Secretary of State, he presents VP as take-it-or-leave-it. She initially leaves it by telling James she would not be his vice president if there were "a grassy knoll full of Jodie Foster fans" in the front row at the Inauguration (a great line). She relents because she believes it is the only way to continue working with China on freeing Tibet (a possibility set up two weeks ago). The scene where Meyer agrees and James cannot help laughing when he promises her that she will be an involved part of his team is a good commentary on how the vice presidency is perceived.*
[*] Although vice-presidential historian Joel Goldstein (SLU) has argued that this has not been true of the modern vice presidency, at least since Walter Mondale.
The show had been building to this since the end of last season, but, as I argued then, it gets it wrong. Under the 20th Amendment, when the House has not chosen a President, the VP elected by the Senate "shall act as President until a President shall have qualified." That may happen in two days, when the House holds a new vote and selects a President. Or it may happen in four years, when a new election and Electoral College vote selects a President in the scheduled quadrennial election. But this VP never becomes President, although she exercises the powers of the presidency.** She remains Vice President and cannot appoint a new VP because the vice presidency is not, in fact, vacant. As I said in a comment to last week's post, this person would not be Ford after Nixon resigned, but GHW Bush when Reagan had polyps removed. And no one believed Bush could have appointed a new VP.
[**] With perhaps some informal limits on Supreme Court appointments, as Rob Kar and Jason Mazzone suggest.
The twist in the episode is that James loses the Senate election. Vice President Doyle, mad at Meyer for reneging on her promise to make him Secretary of State, orchestrates a tie in the Senate vote (by appealing to various Senators whom James had angered over the years over judicial holds, earmarks, etc.), which he then breaks to give the Vice Presidency to Laura Montez, O'Brien's running mate. And with it, the acting--not actual--presidency. This was a twist that I certainly did not see coming. Montez then is sworn in, with a huge inauguration attended by two million people. Again, this would not happen because Montez is not, in fact, the 45th President;*** formally, the presidency remains vacant.
[***] A poll discussed in the episode rates Meyer the 43d best President, just behind James Buchanan, who is "credited with causing the Civil War."
I kept waiting for some further twist back, but it never happened. My first thought was that James would go back to the Speaker to hold a new House vote**** (since that was the plot that started all this) and James would try to whip-up votes to get Meyer the win. Of course, O'Brien came closer to winning that Meyer, so it would have required not only moving the three "abstaining" states, but also one other. Then, during a discussion of Montez's Mexican-born husband, I thought it might be revealed that Montez was not a natural-born citizen, and that might blow everything up. But nothing. And that is the plan. Showrunner David Mandel has said that Season Six will focus on Selina's life after the White House, perhaps Catherine, Gary, and Amy, who are with her at the end. No word on whether other regulars from her staff will be back. Meanwhile, the agreement with China on Tibet that Meyer had negotiated is announced during Montez's address and credited to her, with talk of her getting the Nobel Peace Prize that Meyer had been craving (shades of the freeing of the Iranian hostages on January 20, 1981).
[****] A TV in the background at the White House shows a CNN chyron that the Speaker had said he would not hold a new vote. I thought that might be Chekhov's Chyron, but it turned out to be a reminder of the House role in this and a way to stop that piece of the story.
So how did the season "stick the landing" on the constitutional stuff? Not well in the details, although fun in the story. It seriously understates the political and constitutional crisis that would be involved here, producing an unrealistic result. The Twelfth Amendment was intended to prevent this "inversion" of president and vice-president. No way would O'Brien or Meyer accept the result so easily; they would be fighting like crazy for a new House vote. No way would their supporters in the House accept the result so easily. O"Brien's supporters wanted O'Brien as president; Meyer's supporters wanted Meyer; and the ones who broke were willing to go along with James's plan because they liked him better than Meyer, but would not want Montez in the White House. The Speaker could not refuse to hold a new vote if both sides demanded it; the body might remove the Speaker if he were that obstinate.
Finally, no way would the public accept this, certainly not to the tune of two million people wildly celebrating Montez's inauguration (a law the 2009 Obama inauguration)--no Meyer voter would be happy and an O'Brien voter, while perhaps happy that their party was in the White House, voted for O'Brien, not Montez. They, too, would be pushing the House for a new vote. This is exacerbated by the show suggesting that Montez is callow and ill-prepared. So was Meyer. But Montez is thrust into office because of behind-the-scenes political dealings and the refusal of the Speaker of the House to do his job.
And consider some future problems. What happens if there is a Senate tie? Montez remains the vice-president***** who should break the tie, but she is also acting as president, in which role she would sign the bill. [Correction: A commenter points to Art. I, § 3, cl.5, which provides that the President Pro Tempore presides over the Senate "in the Absence of the Vice President, or when he shall exercise the Office of President of the United States," which seems to capture this situation. So one problem resolved]
[*****] She cannot resign the vice-presidency, since that is the source of her power to act as president.
She presumably will decline to break the tie, as a matter of prudence. But having four years of this strange arrangement is bound to create problems. And what happens in the new House after the mid-Term elections? Might a new Speaker hold a new vote on O'Brien-Meyer, resulting in Meyer coming back to office for two more years, as President, with Montez serving as her VP? That would be a neat plot twist, which the show closed off by talking about Montez as the President; it would take too much exposition to walk it back. Anyway, it is a moot point, since Mandel's plan is to focus on Selina Meyer outside the White House.
All-in-all, I enjoyed the season. And most of the broad strokes of the story worked. They got the details wrong, which is frustrating just because it would have been so easy to correct. Put Jonah in Connecticut instead of New Hampshire and that story works. Talk about divided states rather than abstaining states and that piece works. Have the House holding multiple votes and unable to break the impasse, with no Alexander Hamilton in sight, and that piece works.
Was Jonah's NH background referenced earlier in the series or did they just bring it up for this story arc?
The big influx of Montez support (other than perhaps Latinos) is curious. Everyone loved Tom James, but we didn't hear anything about Montez. Maybe, she can earn it (especially with the Tibet thing), but that would take time. And, though in theory she can be back to being a full time veep in S6, as one article noted, her being President particularly is hard to Selina Meyer. The first elected full term President was supposed to be HER thing.
Also, I can see Selina accepting she lost in the House if she figures she just couldn't get enough votes (even without the abstains, it would be a tie & she lost the popular vote). But, surely, O'Brien would be upset. And, who knew Doyle actually had any juice. Got to watch out for the assumed powerless.
Posted by: Joe | Jun 27, 2016 5:54:08 PM
The Vice President can not cast a tiebreaking vote while being Acting President (Article I, Section 3, Clause 5). Also, the Vice President can not be a tiebreaking vote in a Senate selecting the Vice President. The Twelfth Amendment requires a majority of Senators to select a VP for there to be a winner for VP.
Posted by: Stefan Privin | Jun 28, 2016 12:07:31 AM
"The Vice President can not cast a tiebreaking vote while being Acting President (Article I, Section 3, Clause 5)."
The cite: "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided." She's still veep, so not sure how that does the trick.
The 12A does say "a majority of the whole number shall be necessary to a choice." So, under current law per the 20A, the Speaker would be next in line.
I re-watched the episode and Montez says O'Brien accepted her being President. Maybe, he would change his mind if he re-read the 12A.
Posted by: Joe | Jun 28, 2016 10:30:32 AM
You cited Article I, Section 3, Clause 4. Clause 5 says a President pro tempore of the Senate shall be chosen when the VP is absent or becomes Acting President.
The reference to the Twelfth Amendment is to the part that requires the Senate to choose the VP via "a majority of the whole number [of Senators]". This means the sitting VP can not be the tiebreaking vote in this scenario.
The idea that people would be happy with Montez occupying the White House for four years after the nation split between the Presidential candidates is laughable. Imagine if in 2000, after the whole controversy over who won Florida, either Cheney or Liebermann was declared the President.
Posted by: Stefan Privin | Jun 28, 2016 5:25:21 PM
Sorry. Here's the right text:
"The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States."
I see the point. As to 12A, you seem to have quoted what I did. Don't disagree.
As to the last point, it depends on the person, and how the presidency goes. Those two imho aren't exactly likable people but who knows. The idea was that everyone loved Tom James. Montez is more of an open question since we simply didn't get much a judge at all of her appeal.
But, a popular v.p. very well might get strong support over time, especially (like the Tibet thing), she did things to gain it. Selina Meyer was someone shown to be a bit of a mess. The other choice was O'Brien. Unclear how people felt about him. Consider this election with Clinton and Trump having high negatives. If a popular vice president somehow became acting President, it is not to me "laughable" for the public in time to broadly support the person.
Posted by: Joe | Jun 28, 2016 7:13:38 PM