A Diverse Student Body Without Student Bodies?: Online Classrooms and Affirmative Action

Essay by: Ryan H. Nelson

2016 PEPP. L. REV. 65 (2017)

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between.  These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions.  In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”  Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may treat people differently because of their race only for the most compelling reasons.”  Yet, can student body diversity exist when there are no student bodies, as in an online classroom?  Is the ability of public university students to know the races of their classmates a necessary element of what makes student body diversity sufficiently compelling to justify race-based admission considerations?  What remains of Grutter if students stop seeing the color of their classmates’ skin, and instead see only their computer screens?


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Failure to Act and the Separation of Powers—The Vice Presidency and the Need to Surmount Divided Power in Pursuit of a Workable Government

Symposium article by: Douglas W. Kmiec

44 PEPP. L. REV. 477 (2017)

Is the Vice President an executive officer, a legislative officer, or both?  This query has existed since the time of the founding.  The question poses more difficulty than one might suppose, and it remains unsettled.  It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function.  Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose?  For the first century and a half of the American experience, the Vice President was more often accorded legislative status, with offices not in the White House, but in the capitol.  Beginning in the second half of the Twentieth Century, presidents have delegated considerable and increasing executive authority to the Vice President, such that it is now commonplace to think of those occupying the office as “deputy president.”  While nominally retaining his space in the capitol, today’s vice presidents have a greater physical presence in the West Wing of the White House and are expected to be the President’s emissary in those tie-breaking moments, over which the Vice President presides as President of the Senate.  In this article, Ambassador Douglas Kmiec traces these historical developments and provocatively asks whether seeing the Vice President as either legislative or executive may well miss the point that this officer with dual loyalties is intended to exercise a degree of independence that potentially makes him neither a executive nor a legislative agent, but rather the focal point of political-branch.


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The Vice Presidency in Five (Sometimes) Easy Pieces

Symposium article by: Vikram David Amar

44 PEPP. L. REV. 623 (2017)

The public perception of the Vice President is that of an individual with little actual authority, but who has the potential to be thrust into the most powerful office in the world.  But the modern Vice President has additional responsibilities that many often forget.  Contrary to public perception, the Vice President’s role as President of the Senate carries important Constitutional responsibilities, such as the ability to weigh-in with tie-breaking votes in the Senate or preside over impeachment trials.  Though overlooked, these are important and powerful responsibilities.  Additionally, the Vice President has assumed the role of Presidential “running mate” and with it the ability to influence a voter’s choice.  In a system where voters are allowed to split their ballots for every other position, forcing them to vote for President and Vice President together is an anomaly.  Furthermore, the modern Vice President has often assumed the role of Presidential copilot, taking responsibility for broad policy areas.  Although this responsibility is conferred at the President’s discretion, it is a reflection of the evolving recognition that the Vice President is an important member of the executive team and potentially a future President.  Lastly, the Vice President has the potential to cement the sitting President’s legacy.  For a President limited by two terms, a handpicked successor can secure and extend policies beyond a single administration.  Taken together, these responsibilities reveal that being Vice President is worth more than many would think.


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Oh, VPOTUS, Where Art Thou? The Constitutional Situs of the Vice Presidency as Surveyed by a Former Vice Presidential Lawyer

Symposium article by: Shannen W. Coffin

44 PEPP. L. REV. 583 (2017)

A dispute between a federal oversight authority and the Office of the Vice President (OVP) prompted an unprecedented public discussion regarding the proper location and role of the vice presidency when Dick Cheney’s Chief of Staff challenged an audit of classified information on the grounds that the OVP was not an entity within the Executive Branch.  The modern role of the Vice President is generally viewed as advisor and supporter of the President, with all executive authority vested in the President.  Conversely, the Vice President presides as President of the Senate, casting tie-breaking votes when necessary.

This dual role invokes separation-of-powers concerns, because while the Vice President is plainly an officer of both the Legislative and Executive Branches, he is not considered a full-fledged “member” of either branch.  Constitutional text, history, and vice presidents themselves have grappled over whether the OVP is best considered as overlapping the Executive and Legislative Branches, being a hybrid of the two, or existing as its own entity.  This symposium article explores the Vice President’s position, delving into his relationships within each political branch, as well as the various duties and functions he performs.  Insights from this analysis prompt the theory that perhaps the Vice President’s role fits within both branches of government, contingent on which function he is performing at the time.


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The Vice Presidency in the Twenty-First Century

Symposium article by:  Jody C. Baumgartner

44 PEPP. L. REV. 561 (2017)

The vice presidency has undergone almost revolutionary change since its inception 227 years ago.  Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate.  However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors.  What was once an all-but forgotten office is now an essential part of a president’s administration.  These developments are, generally speaking, welcomed by political observers and analysts.  However, they also raise important practical, legal, and normative questions moving forward.  This Article begins by reviewing the emergence of the modern vice presidency and follows with an analysis of the current role of the office.  Next, it examines the attributes, successes, and failures of modern vice presidents, focusing primarily on the tenures of Gore, Cheney, and Biden.  Finally, it turns to some of the challenges vice presidents will face going forward, as well as the legal and normative questions that surround this new model of the vice presidency.


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The Vice President—More than an Afterthought?

Symposium round-table discussion transcript featuring:  Richard B. Cheney, Edwin Meese III, & Douglas W. Kmiec

44 PEPP. L. REV. 535 (2017)

A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both.  It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative.  Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol.  Beginning with Walter Mondale’s service as Vice President, presidents have been delegating increasing executive authority, seeing the Vice President as a “deputy president.”  Perhaps the most aggressive and influential of the modern “deputy presidents” was Vice President Cheney himself.  Attorney General Meese concurred and saw this as positive.  Ambassador Kmiec was less approving, encouraging Vice President Cheney and Attorney General Meese to contemplate the benefits that a dual-natured legislative–executive Vice President supplies to maintaining a workable government.  The capacity of the Vice President to assert independence, as late Justice Scalia explained in an Office of Legal Counsel opinion, is unique.  Unlike members of the Cabinet, the Vice President is not removable by the President, and thus, the Vice President can use his dual nature to advance executive–legislative compromise.  Vice President Cheney’s reliance upon his significant, but personal, legislative experience prior to his vice presidency to facilitate executive–legislative bargaining suggests qualities that presidential nominees might consider more directly in vice presidential selection, and not just geographic complementarity and ideological compatibility.  While it has been commonplace to think of the vice presidential office as “an afterthought” borrowed from state charters at the time of the founding, this dialogue suggests how a vice president with a foot in each of the Legislative and Executive Branches can assist in overcoming dysfunctional periods when partisan division is great.


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