Glenn Reynolds, writing in the Northwestern University Law Review:
Vice Presidents have increasingly been used as resources in the present […] This growing involvement of Vice Presidents in the executive department has been generally seen as a good thing, as it allows someone deemed by the electorate competent enough to become President to put his talents to work for the country, rather than having them languish while the Vice President inquires daily into the President’s health. And good arguments exist for not keeping the Vice President entirely out of the loop; institutional memory is important for any succession, as illustrated with the famous case of Harry Truman’s ignorance about the atomic bomb. But the Vice President is the only person nationally elected to serve if the President is unable to govern, and the Vice President’s involvement, a la Cheney, in day-to-day policy activities sacrifices the distance that earlier Vice Presidents possessed; those unhappy with President Bush’s Iraq policies, for example, can criticize Cheney in a way that critics of Carter’s Iran policies could not criticize Mondale. In the event that policies in which the Vice President is implicated go sufficiently awry to end a Presidency, the Vice President will not be able to appear as a fresh start and may be liable to impeachment or forced resignation as well. In such cases, this risks a move to someone not nationally electedâ€â€the Speaker of the House or the president pro tempore of the Senateâ€â€and very serious consequences for a nation that would be, in those circumstances, already divided and vulnerable.
[my emphasis]
This is point well taken, I think — particularly in the context of the unfortunate casting of Cheney by his office as a “legislative officer” (in his capacity as President of the Senate). And while I think the characterization was less literal in intent than it was an inappropriately strained dual designation (as Glenn notes, Cheney’s office has since withdrawn “to the more defensible position that the Office of the Vice President, like the Office of the President, was not an ‘agency for purposes of the statute” that requires scrutiny by the National Archives and Records Administration over document declassification), the fact remains that the situatedness of the VP in a particular branch is a constitutional issue worth exploring.
Notes Reynolds:
Despite the unfriendly political response, the argument that the Vice President is a legislative official is not inherently absurd. The Constitution gives the Vice President no executive powers; the Vice President’s only duties are to preside over the Senate[8] and to become President if the serving President dies or leaves office.[9] Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line.[10] The Vice President really is not an executive official. He or she executes no lawsâ€â€and is not part of the President’s administration the way that other officials are. The Vice President can’t be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment. (In various separation of powers cases, as noted below, the Supreme Court has placed a lot of weight on this who-can-fire-you test.)
Traditionally, Vice Presidents haven’t done much, which is why the position was famously characterized by Vice President John Nance Garner as “not worth a bucket of warm [spit].â€Â[11] That changed when Jimmy Carter gave Fritz Mondale an unusual degree of responsibility,[12] a move replicated in subsequent administrations, particularly under Clinton/Gore and Bush/Cheney.[13]
The expansion of vice presidential power, however, obscures a key point. Whatever executive power a Vice President exercises is exercised because it is delegated by the President, not because the Vice President possesses any executive power already. The Vesting Clause of Article II vests all the executive power in the President, with no residuum left over for anyone else.[14] Constitutionally speaking, the Vice President is not a junior or co-President, but merely a President-in-waiting, notwithstanding recent political trends otherwise. To the extent the President delegates actual power and does not simply accept recommendations for action, the Vice President is exercising executive authority delegated by the President immune to removal from office by the President, unlike everyone else who exercises delegated power.
All of which seems to me a matter of semantics — one that was bound to be pressured under a “managerial” style presidency, wherein the commander in chief is famous (or infamous, depending on your party fealty) for delegating authority.
The solution, of course, is for the President simply to review the Vice President’s role in day to day policy — even if the President has conditionally delegated the VP provisional authority — and take final responsibility for any and all recommendations offered by the VP.
Or, to put it another way, to keep a VP who is active in his administration’s policies and policy formulations insulated from running afoul of separation of powers concerns, the President must make certain that whatever autonomy he has ostensibly granted his VP is in fact conditioned upon approval of the President after the fact, making any such “legislative officer” activity merely metaphorical, while in fact they are nothing but recommendations that appeal, ultimately, to the executive authority vested solely with the President.
Either that, or we can just return the VP to the role of guest hosting spelling bees. Which in the case of, say, Al Gore, might have been a good thing.
Not only is he unconstitutional, he eats babies, personally is responsible for some hole in the ozone layer somewhere, shoots people in the face, manufactured a war to line his pockets and those of his friends, and is overall, simply a dark evil person.
I’ve always thought this peculiar office was the one detail the Founders didn’t quite iron out. Without John Marshall, perhaps the Supreme Court would have turned out differently as well. But I digress.
Taking Professor Reynold’s reasoning into account, the only seasoning that the Vice President would get to actually prepare them to be President, should the time come, would be the exact kind of delegation that many currently find so disconcerting. The number of the “many” and the extent of both their intersection with BDS adherents and the delegation itself is something we’ll have to leave to historians as opposed to law journals.
What is the desired state? I think it probably lays somewhere between the complete sidelining of the Veep (Truman and LBJ, for instance) and the 1980 idea of a “Co-Presidency” between Reagan and Ford that was briefly floated at the Republican convention that year before Bush, Sr. was eventually selected as the running mate. And perhaps the relationship between Reagan and his VP was the role model.
There again, maybe Curtis LeMay was EXACTLY what George Wallace needed in a #2.
Perhaps a new tradition should be established – the President appoints the Vice President as a Cabinet Secretary. It would not necessarily have to be the same department each time. This makes the VP an engaged public servant, working closely with the president, and specifically defines his role and executive powers.
Hmmmm.
1. Well keep in mind that originally the VP was the *runner up* of the Presidential election. I.e. had this tradition been kept then in 2004 Cheney wouldn’t have been VP. John Kerry would have been the VP. I suppose the idea being to ensure that the maximum amount of representation is put into the White House.
But I think everybody can see where problems might arise when you’ve got your political enemy working right in your own office.
2. Here’s a question. Let’s say that Hillary + John Edwards get elected to the White House and President Hillary dies in office.
Anybody think that Bill Clinton *won’t* try to grab power and push Edwards aside?
I don’t see the problem with a few ounces of Cheney for your own personal use.
Not only that, JD, he has caused milk to sour, crops to fail, an hour of darkness at noon, and has threatened to give John Edwards a gray hair.
wishbone, Cheney used the Halliburton Time-Travel Platform to subconsciously instruct the young LeMay in the Joy of Petroleum Product Distribution.
Because that is just the kind of grumpy old man he is.
Glen mentioned something a while back about the VP technically being the presiding official over his own impeachment trail; as he is the president of the Senate. The way I see it, VP’s got it locked up and now one even knew it.
“A bucket of warm spit”, boys.
Though I suspect that quote was Bowlderized…
If Cheney is unconstitutional, what’s the “co-presidency” of Senator Clinton that she wants to repeat “again?”
Hey! Don’t be dissin’ the Veep. He shot a lawyer. I consider that a mark in his favor.
Perhaps a new tradition should be established – the President appoints the Vice President as a Cabinet Secretary. It would not necessarily have to be the same department each time.
That brings up another point. Sometimes, other governments have people in the position of “minister without portfolio.” Here, that would be a Cabinet member with no Department under him/her/it. That person could then, with a small staff, be available to the President for any project, foreign or domestic, the President wants worked on but that might either involve multiple Departments or not really fall into the purview of any one Department. In short, the person would be doing what Cheney does now, but with no ambiguity between the executive and legislative branches.
Dead eye Dick unconstitutional you say?
Naw. And last time I remember, the first runner up is always a member of the losing team…..Bush/Cheney was a ticket….remember?
And last time I remember, the first runner up is always a member of the losing team…..Bush/Cheney was a ticket….remember?
I think he meant WAY back. Jefferson was VP to opponent John Adams. That led to a constitutional change.
The sad part is that in Georgia, the Governor and the Lt. Governor are a split ticket, so you get the situation where the Gov. wants something done and the Lt. Gov is actively campaigning against it.
Impeachment? Impeachment for what? The Dems have been looking for the past seven years for something to hang on Bush and Cheney, impeachment-wise, and have failed miserably.
I think Reynolds (who has never impressed me all that much to start with) is grasping at straws here, for whatever reason. There is nothing in the Constitution that says a President can’t call upong his VP for advice and/or consultation, tasking him/her to run various groups, commissions and the like, etc.
And I have yet to see or hear anything that would indicate that Cheney has done anything that would constitute any sort of “usurpation of powers”, Constitutionally speaking, in his role as VP. That being the case, what could he be impeached for?
I think the “Original Intent” was to split the tickets and have varied representation (so that if choice #1 became unavailable, #2 would become President), but it became pretty clear pretty fast that the parties were not just “slightly different views about how to govern, working together in a spirit of compromise and conciliation.”
I mean, who wants to be President if you have to check your chair for tacks every time you sit down? Or have your VP Aaron Burr asking you to “step outside” with him every morning?
It’s just not on.
I’ve been told that originally it was a plurality-style run off; all the candidates vyed for the most votes, whoever got the most was prez, second most was veep. But, I’m not altogether clear on the specifics, or for how long that particular practice (If I’m correct) persisted.
Also true in California, where I grew up. When I moved to a state that had the gubnor and lite-gubnor elected on a ticket, I didn’t realize it until after that year’s goober primary — in which candidates for gub and lite-gub ran separately for the honor of being shackled together on that ticket.
But there, the lite-gub has a constitutional job, since the post is effectively just a renaming of the Secretary of State (and in states that have no lite-gub, it’s SecState who would succeed the gub anyway).
I really don’t see the controversy here. If POTUS says disregard the Veeps every word or deed it’s game over so far as any executive duties are concerned and back to the spelling bees or Senate.
Nothin’ to do in the Senate, less there’s a tie.
Yep, I’ve always viewed the office, as laid out in the Constitution, as a ‘break-in-case-of-emergencies’ glass box, with the two specific issues being ties in the Senate, and loss of the POTUS. Otherwise it’s the office of understudy; someone who needs to stay off the stage but remain close by.
But I’m also of the opinion that it should be an independant ticket and not a package deal.
I would want my Vice President to know how to cook.
At least bake.
“Anybody think that Bill Clinton *won’t* try to grab power and push Edwards aside?”
How do you reckon he would go about that? Secret Service work for Edwards. Military work for Edwards. The times in which you could be president because your spouse had a stroke and the SS and White House Dr would cover it up are long gone.
The original intent was for the states to choose Electors, then the Electors got together, argued about it, selected a President and the first runner up was the Veep, it wasn’t necessarily inevitable that they be political enemies.
Dick – what did I say about raisins in the sweet rolls? Remember? Condi – We are bombing Iran and I want you to work closely with Bobby on that, right? Plan stuff.
No, Dick, I can’t just pick them out.
I’m reasonably certain the first Clinton presidency was a shared effort, it’s not like they didn’t say that from the beginning. Hillary behind the scenes, Bill up front. Another would be the same thing, just in reverse.
“I.e. had this tradition been kept then in 2004 Cheney wouldn’t have been VP. John Kerry would have been the VP.”
Now THAT made me laugh. Kerry would have taken the pipe (and probably his wife would have,too) within two weeks if he had to be Bush’s VP.
Cheney: Those were my blue corn cakes there, with the salmon.
Sarkozy: No! Yes? They were very nice, they were. Most pleasant.
Cheney: Crisco.
Sarkozy: Ahh.
The Constitution was written before parties were a player in American politics. When John Adams was chosen for President in the 1796 election, the second-place candidate, Thomas Jefferson, became Vice President – but Adams was a Federalist and Jefferson was a Democratic-Republican. The two clashed several times during Adams’s presidency, though Adams’s conflicts with Hamilton, a Federalist, too, probably caused Adams more concern.
In the election of 1800, the flaws of the original system became more than apparent. Jefferson and Aaron Burr both got 73 votes in the Electoral College, forcing the House of Representatives to choose. The problem? Both Jefferson and Burr were candidates of the same party, with Burr chosen to be the Vice President; some states preferred Burr, and neither was able to get the required majority until the stalemate was ultimately broken.
The result was the 12th Amendment, approved in Congress on December 9, 1803, and ratified on June 15, 1804 (189 days), in time for the new process to be in place for the 1804 election. With the 12th, Electors are directed to vote for a President and for a Vice President rather than for two choices for President.
(From here: http://www.usconstitution.net/constamnotes.html#Am12)
Haven’t you seen “Dave”? All it takes is finding someone who looks a whole lot like the President, with the assistance of senior White House staff and the First Lady.
…and to rip a man’s still beating heart out of his chest and show it to him before he dies. Yeah, that ought to do it.
Mr. Reid? Vice President Cheney on line one. He’d like to see you.
I like the ticket arrangement.
During the Clinton impeachment my lefty aunt got up in my grill, screaming that the republicans were trying to nullify her 1996 vote. “Who did you vote for last election?” I asked her. “Clinton!” she wailed. “No you didn’t, you voted for Clinton-Gore.” I replied. It shut her right the fuck up.
yours/
peter.
“The times in which you could be president because your spouse had a stroke and the SS and White House Dr would cover it up are long gone.”
That you know of. Adkins Disease, anyone?
And Jimmy Carter is a pretty good argument for tertiary syph.
I confess that I was hoping, back then, they’d follow up Clinton’s impeachment by going after
XenuGore. ‘Cause it would’ve been like the Fourth of July if Newt had become president, all those liberals’ heads exploding.If I knew for a fact that the Dems were going to win, I would want Next Gingrich to run against their candidate, just to watch the explosions that McGehee referenced.
Great post! I lectured on the vice-presidency yesterday, so it’s interesting to see a legal/academic article on such issues.
Thanks for the link!
Hmmmm.
How do you reckon he would go about that? Secret Service work for Edwards. Military work for Edwards. The times in which you could be president because your spouse had a stroke and the SS and White House Dr would cover it up are long gone.
*shrug* no idea. But I find it hard to imagine that Bill Clinton *and* the Clinton Machine could be jogged out of the White House all that easily.
The Clintonistas would hide Edwards’ hair spray until he appointed Rahm Emanuel or someone like that to be Miss Johnnie’s veep.
Then Miss Johnnie would start “sleepwalking” over to Fort Marcy Park until he agreed to resign.