Balkinization: A further note on the Vice Presidency

A further note on the Vice Presidency

Sandy Levinson

I have, of course, many times bewailed the fact that we don't have a mechanism for dumping an incumbent President through a (bi-partisan) vote of "no confidence" and replacement by a member of the deposed President's own party. The principal argument against such a change in our constitutional system is the potential instability it poses, and that's clearly an argument to be taken seriously, even I believe that the risks are over-estimated.

But what about a vote of no confidence in the president-designate, i.e., the Vice President? Surely, there's no serious argument that that would be destabilizing. Until Spiro Agnew resigned and was replaced, through the new 25th Amendment, by Gerald Ford, the US got along without VPs from 1841-45, 1850-53, 1865-1869, 1881-1885, 1901-1905, 1923-1925, 195-1949, and 1963-1965. (I might be off on a couple of the dates, because I haven't gone back to check the exact dates of deaths and assassinations.) Interestingly enough, it took the JFK assassination to change things, but the gestation of the 25th Amendment was not the crying need always to have a VP, but, rather, to have a structure in process to take care of the possibility, say, that Oswald would "merely" have permanently incapacitated Kennedy rather than killed him (which would have been worse for the country).

The Framers, whom some of you regard as a particular fount of wisdom, clearly did not believe that we always needed a VP, since they made no provision for assuring that we'd always have one.

So once we agree, as I think we must, that there is no argument in the text, history, or even structure of the Constitution that dictates an omnipresent VP, why shouldn't we go the next step (which would require a constitutional amendment) and make that person subject to continuing congressional approval? Even if one believes that Bush would escape a vote of confidence, were one available, does anyone really believe that 2/3 of Congress assembled together collectively (i.e. 358 representatives and senators) would not like to relieve the country of the possibility that Dick Cheney might be president even for a single day? (Needless to say, a problem with the present political reality is that that would make a Democrat, Speaker of the House Nancy Pelosi, next in line.) Any amendment would have to account for this, preferably by making next in line, in the absence of a VP, the Secretary of State.

As I've argued in a previous post, elections do provide one form of legitimacy, but they should not in the least be confused with continuing "accountabililty," which one might believe is also very important in a functioning democratic system. Lame-ducks especially have no incentive to feel any particular degree of accountability, and there are few people in the world today, including Fidel Castro, who appear to feel less of a sense of accountability to the body politic than Dick Cheney, whose most recent move is to destroy records of visitors to his vice-presidential mansion. The NYTimes writes today, altogether accurately, of Mr. Cheney's "disdain for accountability," coupled with, as many of us believe, a remarkable proclivity for bad judgment.

Given that I've readily conceded that nothing can be done about the present VP--so that our only option is to pray for George W. Bush's health--the question remains as to why we won't modify our Constitution to allow for a collective of heart on the capacity of the VP to inhabit the Oval Office and make literally life and death decisions about peace and war. (Another story just published by the Congressional Quarterly details attempts by Donald Rumsfeld's DOD to encourage a uilateral declaration of independence by Taiwan even at the potential risk of war with China. Imagine if we were learning that such provocative actions were being encouraged by the VP, as has been suggested to be the case with regard to an Israeli attack on Iran.)

Even if one stipulates that we gain something from a rigidly fixed presidential term, impervious to anything less than impeachment based on committing a "high crime and misdemeanor," what can be said for keeping the same structure with regard to future VPs?

Posted 1:41 PM by Sandy Levinson [link]

Comments:

does anyone really believe that 2/3 of Congress assembled together collectively (i.e. 358 representatives and senators) would not like to relieve the country of the possibility that Dick Cheney might be president even for a single day?

It saddens me to say this, but I do not believe the current Congress would remove Cheney if it took a 2/3 vote. I'm not sure what lesser vote would succeed.

# posted by

Mark Field : 2:48 PM

Even if one stipulates that we gain something from a rigidly fixed presidential term, impervious to anything less than impeachment based on committing a "high crime and misdemeanor," what can be said for keeping the same structure with regard to future VPs?

One thing that could be said is that making the VP subject to a vote of no-confidence would merely increase the political incentive to concentrate power in the office of the President, which strikes me as your primary concern.

Given your usual concern with incremental changes to the Constitution have proved (you even cite the 25th Amendment in this regard), I'm confused as to why you think this situation different.

You seem to consider a "no confidence" vote as a panacea to all accountability problems. But the problem Cheney's created has little to do with whether he can be removed, because there's no incentive to replace him with anyone better. Worse, if the VP could be removed, why not just hide Cheney (or someone like him) as the "Number 2" in the VP office itself?

Since the elections we've seen how ineffective "accountability" to Congress is if not coupled with some degree of transparency. Cheney's strategy has been enabled by isolation of the VP office -- a strategy made possible by the fact that the VP, unlike the President, isn't really expected to interact with the public. If anything, the possibility of a vote of no confidence would only increase the VP's incentive to pursue that strategy; it wouldn't alter the nature of the problem, which has nothing to do with whether the VP can be easily removed.

In other words, regardless of whether the Presidency is flawed because of its "rigidly fixed" term, it doesn't follow that the central flaw of the VP is the same. If the political will existed to fix the term problem, we would presumably be able to address both the President and VP offices in one blow.

As such, conflating that issue with the dilemma Cheney's created strikes me as dangerous. Not every "lack of accountability" is created equal, and all the evidence indicates that Cheney is more than dangerous enough to be addressed as an independent problem.

# posted by

A : 6:23 PM

The VP, constitutionally, has essentially no power save breaking very infrequent ties. If you think he's doing mischief, he's doing it with power the President could have delegated to absolutely anybody.

And, yes, I doubt that you could get 2/3rds of Congress to vote to remove Cheney. Republicans will agree in large numbers that he's not an ideal VP. That he's a worse VP than the replacement they could get Democrats to agree to, however, is quite a different proposition.

# posted by

Brett : 6:32 PM

The VP, constitutionally, has essentially no power save breaking very infrequent ties. If you think he's doing mischief, he's doing it with power the President could have delegated to absolutely anybody.

Sadly, Brett, your conception of the OVP's authority is substantially different from Cheney's. The OVP has advanced the argument that it is an executive-legislative branch not subject to the authority of either under the Consitution.

Additionally, the Cheney OVP has indicated that it is not bound by executive orders.

Your argument is interesting but irrelevant.

# posted by

A : 7:58 PM

Is Congress under any obligation to give the OVP a budget? Or for that matter, to allow it to use any federal buildings?

# posted by

Unknown : 10:18 AM

I would say Cheney's argument doesn't even rise to the level of good sophistry, and would hold up about as long as a snowball in Hades if the President didn't feel like humoring him. Which is why I say that any power he's abusing was delegated to him, and if you don't like the way he's using it, don't blame the Constitution, blame the people who delegated it.

# posted by

Brett : 12:18 PM

There is, of course, a lot of truth in Brett's remark. But my point is that we now have lots of information as to what kind of president Cheney would be, and for most of us (approximately 80% of the American public), it isn't a pretty picture. So why should we be stuck with him one heartbeat or bullet away from the presidency. Bush might give someone the keys to a car with defective brakes, and that would tell us a lot about Bush, but we still shouldn't be willing to get into the car.

# posted by

Sandy Levinson : 7:06 PM