Friday, June 01, 2007

More on our defective Constitution: The Vice Presidency

Sandy Levinson

Is there anything to be said for being saddled with a constitutionally hard-wired Vice President who, like the President, serves a fixed term, and who, like the President, cannot be displaced without impeachment? Interestingly enough, the 25th Amendment provides a way for a physically- or mentally-incompetent President to be displaced, but no such procedure is available for a Vice President. So we're in the bizarre situation whereby a Vice President who, say, suffers a debilitating stroke (like Woodrow Wilson) or heart attack (like Dwight Eisenhower) or the onset of Alzheimer's (like Ronald Reagan), can resolutely hold on to the office without the possibility of the invocation of the 25th Amendment even though a president in a similar situation, at least theoretically, could be displaced, as Wilson and Reagan probably should have.

Most presidential systems around the world seem able to do without the office of vice president. Consider the French constitution on this point:

In the event of the Presidency of the Republic falling vacant for any cause whatsoever, or of an impediment being formally recorded by the Constitutional Council upon referral to it by the Government and ruling by an absolute majority of its members, the functions of the President of the Republic, with the exception of those laid down in Articles 11 and 12 below, shall be temporarily exercised by the President of the Senate, or, if the latter is in his turn impeded from exercising these functions, by the Government. In the event of a vacancy, or when the impediment is declared permanent by the Constitutional Council, polling for the election of a new President shall take place, except in cases of force majeure formally recognized by the Constitutional Council, not less than twenty days and not more than thirty-five days after the beginning of the vacancy or the declaration of the permanence of the impediment.

The South African Constitution is equally sensible:

90. Acting President
  1. When the President is absent from the Republic or otherwise unable to fulfil the duties of President, or during a vacancy in the office of President, an office-bearer in the order below acts as President:
    1. The Deputy President.
    2. A Minister designated by the President.
    3. A Minister designated by the other members of the Cabinet.
    4. The Speaker, until the National Assembly designates one of its other members.

  2. An Acting President has the responsibilities, powers and functions of the President....

91. Cabinet

  1. The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers.

  2. The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them [emphasis added].

  3. The President ­
    1. must select the Deputy President from among the members of the National Assembly....
It would be pointless to march through the constitutions of the world. The point should be clear enough: Here, as in so many other areas, the US is the outlier, perhaps because other countries have looked at our political history and come to the correct decision that nothing is really to be gained, and much potentially lost, by entrenching a designated vice president.

I am led to such comments, as one might guess, because of the particularly egregious Vice President the United States currently suffers. Two points are relevant: The first is that it is altogether possible--no one really knows for sure--that Mr. Cheney's repeated heart problems have affected him mentally. There is certainly a popular (and, I assume, technical) literature on the psychological consequences of open-heart surgery and the like, and inquiring minds can wonder about the psychological state induced by Mr. Cheney's heart problems over the years. Secondly, putting such considerations entirely to one side, there is increasing concern-- see, e.g., a just-posted story in the New York Times--that the "crazies" in the Vice President's office are in a state of de facto mutiny against what they view as the squishy policies of President Bush and Secretary of State Rice with regard to Iran and that they are trying to foment war with Iran, possibly through Israel. There are two possibilities, of course: One is that the story is false and that Mr. Cheney is a loyal lieutenant, at least so long as George W. Bush remains President. The other is that the story is true, and that the President and Vice President are at odds on one of the most important issues facing the country, where lives are very much at stake.

In South Africa, the President could simply dismiss a "deputy president" in whom he no longer has confidence. We, of course, are not in that happy situation. Presumably, we can comfort ourselves (?) that George W. Bush remains "the great decider" and that Mr. Cheney is without such a decision-making role, that he can only try to undercut the President and the Secretary of State by deriding their policies and encouraging independent adventurism by the Israelis or some other country that might be seduced by neo-conservative portrayals of a transformed world.

With regard to credentials, one might have believed that Mr. Cheney was equipped to take the helm. One's opposition to Cheney is political and ideological, not that he is "inexperienced" or for non-political reasons unqualified to become president. That was not the case, of course, with such luminaries as Spiro Agnew or Dan Quayle, and it is hard really to believe that Sen. John Edwards was just the person one might want to succeed John Kerry had Kerry been elected and, for whatever reason, vacated office.

Since Americans are determined to think that our Constitution is basically perfect, I cannot help but wonder what we would do if something did indeed happen to Bush and Cheney became President for, say, the last 550 days of their term. (For that matter, he might announce his desire to run for the presidency in his own right, now that he occupies the Oval Office. Who knows?) Would we (correctly) view this as driving over the cliff and, at long last, having to confront the adequacy of the Constitution? Or, as with the electoral college and 2000, would we simply follow Bobby McFerrin's advice "don't worry, be happy"?

There have, of course, been times when we've been well served by the President-in-waiting: Teddy Roosevelt and Lyndon Johnson come immediately to mind (puttingn to one side, of course, LBJ's disastrous decision to maintain the policies of Kennedy's advisors in Vietnam). But then there are John Tyler and Andrew Johnson. I have no idea whether Millard Fillmore or Calvin Coolidge were markedly better or worse for the country than Zachary Taylor or Warren Harding. Perhaps there is something to be said for a Vice President or "deputy President." That really isn't the main issue. Rather, it's whether the VP should be as entrenched as the President and not subject to dismissal by a President (in the same way that the President can dismiss members of the Cabinet or, for that matter, US Attorneys). There is, of course, no conceivable way of getting rid of Dick Cheney until Jan. 20, 2009, so his tenure is a moot point. But perhaps we can learn from the nightmarish anxiety about his actually becoming president to reflect on the possibility that we'd be better off without the present form of the office at all, whether it's inhabited by a Democrat or a Republican.


That presumes there isn't an impeachment. Waxman (and Pelosi) well make the point that it's only a matter of time; by September, Republicans will be falling all over themselves to cross the line from the Bushit side of it.

How bad must their re-/election prospects be before they themselves initiate impeachment, however couched? It was, according to reports, the Republicans who persuaded Nixon to resign, not the prospect of Democrats impeaching him.

Notwithstanding the questions about Cheney, it would usually be a fair bet that the person the President-elect chooses as a potential successor would lean in much the same direction in politics and policy. Therefore the system provides for some continuity in the policies of the executive, in regular cycles. In many circumstances, this takes away some incentive for the removal of a President, e.g. by assassination, as a way to achieve political ends. This should help with stability of the system. Under another arrangement, elections could be triggered, or a new party in the presidency, change in coalitions, etc.

But that is an essential part of the issue here. It is quite difficult for the people or for the legislative branch to force a change of policy on an executive during their term, or to remove an executive even for gross maladministration. That is, what solution does the system provide when the people or the legislative branch want to break continuity because something has gone terribly wrong? They are either to wait up to 4 years, or agree on a definition of "high crimes and misdemeanors".

What happens if a President would decide for legitimate and compelling reasons that he no longer wants the sitting Vice President to be able to succeed him. Let's say the situation were to descend to the point that an attempted coup by a Vice President were a genuine possibility. One could make a case that easy replacement of a Vice President would lend instability or that it would be a risk to continuity or public accountability. Because a replacement for a U.S. Vice President requires approval from the Senate, this does not seem to be a particular problem in the context of a representative republic.

Today, even though Congress has the power to impeach and convict for "high crimes and misdemeanors", even if the grounds were defined in the Constitution down to a major disagreement in policy or a fundamental lack of confidence, not enough Senators would vote that way. Not enough of a legislative majority is likely to exist this term to remove Cheney or Bush, almost regardless how bat-crazy their actions could look to an average observer, as a matter of hard politics. Too large a minority agrees with the policies. Enough others would not want to vote a lack of confidence in the nominal leader of their party. As it stands now and in the forseeable future, the most influential factors in this regard seem to be related to Republican Party politics, the two-party bias of the Electoral College, and the nature of the public discourse, more than matters of selection and succession in the Constitution.

Another significant aspect to this issue is that quite possibly no one is qualified or trustworthy to be able to produce as much quick and arbitrary disaster thousands of miles away as a U.S. President can do.

Just to add some historical reference, the consensus rankings would put Taylor just a little ahead of Fillmore and Coolidge significantly better than Harding. Link. In addition to Johnson and TR, there's Truman and the immortal Chester A. Arthur.

Overall, the country clearly benefited from Coolidge and TR, both of whom were better than the President they replaced, while Johnson and Truman both had significant achievements. On the downside, Tyler and Johnson were disasters; Fillmore roughly a draw with Taylor; and Arthur probably worse than Garfield would have been. It's hard to see this as strong evidence against the position of VP.

On the other hand, you could equally say we've been lucky. What if Burr had replaced Jefferson? Garner had replaced Roosevelt? Calhoun had replaced Jackson? There will always be tension between the stability that the current system gives us versus the potentially better results from some other. Stability is an important virtue when the office is as powerful as the US President.

I appreciate these comments. I suppose the question is this: If we were assigned the task of drafting a new Constitution for the US from scratch, doing what Madison did, which was to look at all other constitutions, both ancient and modern, would we endorse the present form of the vice presidency, or would we find the French and South African (and perhaps other)approaches more attractive.

Truman, on balance, was a good successor (though I suspect that he is currently overrated, perhaps to offset his being underrated at the time). But consider FDR's other VPs, John Nance Garner and Henry Wallace. What would our reaction be if either of them had succeeded to the presidency.

Am I missing something, or didn't the original constitution allow an opponent to become VP? If you assume that president and vice president ran independently, then the fact that the president can check most or all executive power of the VP with an executive order seems to limit that office quite a bit.

Can you explain what difference it makes if the president gives power (of any kind) to an unelected official or gives it to the VP? Everything still seems to boil down to the president, and how much of an idiot s/he is.

I'm not sure what the deal is exactly, but anyone who becomes president and gives away so much power (even if it is just for public consumption) is a complete idiot. This giving away is probably at the root of most of our problems.

Are you seriously thinking George Bush could not ask for Cheney's resignation and, failing that, go to the Congress himself and ask for Cheney's impeachment? Ironically, Cheney would then preside over his own trial . . .


The question is more simple than 'asking congress' to do anything. Can the president knee-cap the VP? What independent power does the VP possess if the president is willing to act?

According to the VP, Bush could have Cheney hauled down to Gitmo. I don't think too many Americans would be upset.

I fondly recall a time when the Vice Presidency was valuable. Can you believe before Cheney, it was worth an entire bucket of warm s*it?


@rmadillo: Before the passing of the 12th amendment, the person who came in second in the presidential election became vice-president. But I hardly think that that was such a good idea.

@mark: Would a candidate for president not choose a running mate who is somewhat different from him/her? That way, the two would, between them, appeal to a greater section of the electorate. Or did you have a situation in mind where the president-elect chooses a vice-president after the election?

Generally, I would say that many of the proposals here boil down to simply abolishing the vice-presidency, leaving the speaker of the house to succeed the president if necessary. I would say that that is probably a bad idea, given how common it is that the speaker is of a different party than the president. (Whatever system one would want to design for the vice-presidency, one would hardly like to see the president succeeded by someone from the other party, except in rare circumstances.)

I guess the best "small" reform would be to abolish the vice-presidency, but making the Secretary of State the next in line. He/she would then be removable at will by the president, but any secretary would be subject to the confirmation requirement of art II (2)(2), which could be extended to confirmation by both houses if that is deemed necessary.

Sigh. Wait a second.

You cite other constitutions which have a "deputy president" who step in when the President cannot do the job. I'm unclear exactly why such a position, at least potentially, cannot raise various difficulties cited here.

The fact that there is some bunker mentality in the current v.p. office is not somehow undeniably tied to the constitutional office. I reckon that chances are in many systems there will be a de facto next in line, who might very well have lots of power, at least de facto.

In fact, the reason Cheney has/had so much power has more to do with the weak President we have. This simply cannot be elided over to (sarcasm aside) underline the not too shocking point the C. isn't perfect. Franklin said that back then.

If the v.p. is actually needed (again, the danger is Cheney has such a role in Bush's mind ... this is not compelled by the C. which doesn't require THAT) when the P. is unable to serve, Art. II gives Congress the power when the vp is unable to serve. The language suggests Congress can determine this state of affairs.

I respect your position as not just ad hoc, but some just might think the current occupant is coloring these constitutional concerns. The real problem is the President here and/or maybe distrust in Congress actually admitting Cheney might be unable to serve.

But, what if the "deputy President" is next in line and has to serve. And, said d.p. is melomanacial in some fashion or maybe has various health problems (btw Cheney had extreme views in the 1980s ... connecting the mentality to his health as compared to that or the pol. situation is dubious) -- putting aside ADA claims -- what changes exactly?

BTW, does chronic health problems factor in the 25A?

"Would a candidate for president not choose a running mate who is somewhat different from him/her? "

Is the phrase, "ballance the ticket" absent from your experience? Presidential candidates, for better or worse, tend to pick VP candidates who are somewhat different from themselves. The conservative Reagan, for instance, chose the liberal Republican, Bush, to molify the liberal wing of his party. The somewhat liberal son (No conservative feels any need to add "compassionate" to conservative.) selected Cheney to reassure his party's conservative wing.

It's not as great a tension as electing the general election opponent VP, but there is tension there.

George "somewhat liberal" Bush.

To follow-up, I would add that sure there are problems and possibile alternatives. But, Franklin's pt. was were they so much better and workable?

For instance, it might be a good idea just to make the Sec. of State the next in line, doing away with the v.p. It would seem useful to have some sort of stand-in for the Pres. in key events and so forth though, so again, some sort of "deputy" role would make sense.

And, in both cases, they would likely be appointed by the Pres. and confirmed in some fashion by the legislative body. Since the latter body will be pushed to "let the guy/girl pick his own team" this oversight role would be limited.

Thus, the next in line would be largely the President's pick w/o even the public vote -- however limited is now, there is some public vote via the 12A and extended vetting which could easily be more (some voted FOR Bush because of Cheney .. the v.p. pick matters now) -- raising problems.

I assume a problem here is we have a v.p. with basically nothing to do but make trouble. The presiding role maybe made sense in 1789, but not really now. The President can/will give them various roles, but overall, it is largely an office w/o a set portfolio.

A problem worth discussing.


@brett: my point exactly

@joe: I guess it is also a matter of historical accident/path dependency. On the face of it, there is nothing in the constitution stopping the president from giving the VP an actual job. However, because the first few VPs were opponents of the president, that never happened. Personally, I think the best thing to do is to give the VP a job in cabinet. (Depending on their personal experience, skills, etc and on the president's needs, they could be Secretary of State, Agriculture, whatever.)
The only exception would be the AG post. I'm not sure if it would be legal for the VP to be AG, but even if it is, that would surely be a bad idea.

It's so nice for me to have found this blog of yours, it's so interesting. I sure hope and wish that you take courage enough to pay me a visit in my PALAVROSSAVRVS REX!, and plus get some surprise. My blog is also so cool!

Feel free off course to comment as you wish and remember: don't take it wrong, don't think that this visitation I make is a matter of more audiences for my own blogg. No. It's a matter of making universal, realy universal, all this question of bloggs, all the essential causes that bring us all together.

I think it's to UNITE MANKIND that we became bloggers! Don't see language as an obstacle. That's not the point. Pictures talk also. Open your heart and come along!!!!!

To specify, when I say "job," I mean an official continuing job that is not at the mercy of the situation or President. IOW, a statutory or constitutional one.

In recent years, the VP was given various things to do, and I guess making the role somewhat open has benefits too. Life as usual is complicated.

Apropos, reminds me of Dave Barry's comment that the job of a lieutenant governor is to wear a suit and check in daily to make sure the governor isn't dead yet. Aside from NJ, your typical LG probably doesn't have a big job either.

BTW, it is useful to note that Texas to my understanding has a strong role for the second in power, or whatever the official position is, so that in fact the governor is weaker in many ways than many other states. This seems useful when discussing Bush/Cheney.

Instead of focusing on Cheney, I think we ought to be looking at the overall group of VPs and trying to decide how the country would have fared, in general, if they had succeeded to the Presidency. Here's a handy list.


I disagree it is THAT simple -- imagine the precedent set once a President sends anyone, let alone his own Vice-President to Gitmo, based only on a political disagreement -- and even if Gitmo would be a de facto "incapacitation" there is again NO Constitutional procedure for Cheney's removal from the Office of Vice President other than inpeachment. I think it is the way it should be.

As for whether Bush can knee-cap Cheney, of course he can. He can take a shotgun and finish the job off too, but that would be illegal and leave Pelosi as President after his impeachment.

As I've written before, it would be a terrible idea if the Speaker were next in line to the presidency. The main reason, of course, is that the Speaker, some percentage of the time, will be from a different party. But even if of the same party, there is simply no reason to believe that Speakers are trained in the skills that we look to in a President in the 21st century, including (putting the incumbent to one side), some genuine knowledge of the world and talent for diplomacy. The Speaker would, however, be likely to be extremely well informed on domestic policy, moreso than a Secretary of State.

One other point (also undoubtedly repeating things I've written earlier): It may be a mistake to overestimate the importance of the single event of Dick Cheney or, for that matter, George W. Bush. But it is also a mistake to ignore their reality and the insight they can provide about possible costs of the present way of filling (and maintaining) the present offices. Our present Homeland Security Policy is based on an (unattainable) "zero-risk" fantasy that imposes all sorts of costs in order to guard against the remote possibility of a terrorist getting into the US. So the question remains why we aren't more concerned than we appear to be about heading off the risks revealed by various aspects of both Bush and Cheney. After all, we passed the 22nd Amendment in part to safeguard against the risk of another FDR establishing lifetime tenure in the White House. Although I have mixed feelings about the Amendment, I think there are many things in its favor, including heading off the development of a "cult of indispensability." One might well argue that the 22nd Amendment was the last significant change to the Constitution, well over half-a-century ago. (Residents of DC might claim some significance for the 23rd Amendment, but it is certainly less important, structurally, than the 22nd.)

I also think that it is worth noting some of the novel interpretations of the OVP that Cheney has tried to use. Via The CarpetBagger Report: ... but Dick Cheney’s office claimed an exemption for itself, arguing that the “Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch.”

I agree the the Vice-Presidency is one of those places where the Constitution is leaking around the edges a bit. But, then again, what vessel of mere words could withstand such sustained malevolent pressure from within. (Maybe the ultimate contribution of this administration is to serve as the analogue of a pressure test on a plumbing system - at least now we know where the worst leaks are.)

It does make you wonder exactly which "executive" Cheney thinks gets to go unitary on everyone:

"Three" Branches of Government for the clueless in their homes,
Two Houses of Dwarf-lords in their halls of stone,
Nine Mortal Justices someday doomed to die,
One Branch for the Dark Lord on his darkened throne,
In the minds of neocons where the Shadows lie.
One Branch to rule them all, One Branch to find them,
One Branch to bring them all and in the darkness bind them,
In the dreams of Cheney where the Shadows lie.

I've seen other posters allude to this, but one benefit of the current structure is that our VP structure gives the electorate the assurance of continuity in policymaking.

I'd agree with the opinion that we shouldn't gauge the value of the VP on the basis of the relationship between W and Cheney. Each are unique & if you're really looking to solve the problem, I'd focus on an electoral process that brought us W as president.

To put it another way, if you remove the office of the VP, there's no assurance that Cheney wouldn't still have exerted tremendous influence on the weak and ill-prepared W. The VP office (as many have indicated) has very limited inherent power. Cheney's influence over W is not directly linked to his status as VP.

At a basic level, the Constitution should provide for a durable, stable system with built-in continuity for institutions and policy. What kind of system do you want to design? If the territory is one major world city and surrounding country, the optimal configuration should be different than for a loose confederation of colonies, which would be different than for a military-industrial empire. Do you want a ceremonial president who has certain powers above a chief operating officer? Do you want a hereditary monarch?

If the question is limited to an amendment rather than a new system, then what about this: Replace the Vice President with a Senator-at-Large elected by popular vote. The Senator-at-Large would cast a vote in case of tie. If you want to give a little more weight in the Senate to population centers, SaL could vote always. Senator-at-Large would participate in debate.

Succession would go from President to Senator-at-Large, to Speaker of the House. Impeachment would be changed to address gross maladministration and other concerns, and a supermajority of the Senate would be able to remove the President from office under somewhat broader circumstances.

The voters would know they are electing an individual who would replace a President of any party if a President leaves office during SaL's 2-year term.

The risk seems to be in how well that system would stand up to great stress, to preserve a union among diverse people across the width of a continent. The successor to the President could change at mid-term. A supermajority in the Senate would be able to replace the President. This allows for similar continuity as the current system, but more opportunity for both scheduled and unscheduled change.

@martinned: In the broad scheme of things, the balanced ticket is still within a narrow range of policy that appeals to a large coalition. The custom is that the candidates are running mates. That reference in my earlier comment is to the current system and custom.

The Senator at Large suggestion is very interesting, but it certainly doesn't solve the problem of a president being succeeded by someone of the opposite party. To be sure, one could argue that SaL would have the legitimacy that would come from a national election, but one can easily imagine a president willing a narrow victory and then an opposite-party SatL winning an equally narrow victory ultimately on grounds of personality, name recognition, etc.

But I commend the imagination that went into the suggestion.

It may be a mistake to overestimate the importance of the single event of Dick Cheney or, for that matter, George W. Bush. But it is also a mistake to ignore their reality and the insight they can provide about possible costs of the present way of filling (and maintaining) the present offices.

I don't expect any system to be perfect, so I'm not sure I'd make a change based on one bad result, even one as egregious as Cheney. That said, the list I linked was notable only for the utter mediocrity of most of the VPs in our history. That does suggest the need for some change.

Maybe we need to be even more daring. Suppose we make the VP a separate election held at the same time as the Presidency. Anyone can run, but voting is limited to those who were registered in the same party before the nominating conventions plus those who had no party affiliation before the convention. This restriction does not apply to first time voters who register after the conventions.

The winner will be the candidate who (a) is of the same party as the winning President, and (b) gets the most votes among the candidates of that party.

This is a complicated system, which counts against it, but it does solve several problems. It lets the people choose; it assures party continuity; it satisfies the stability concerns mark has raised; and it prevents gamesmanship in several different ways (e.g., by preventing a party's base from putting forth an extremist candidate, and by preventing crossover voting by other-party voters who foresee a loss by their candidate).

The real problem that so many of your posts target is the heroic presidency and the solution is not to fiddle at the edges by making the vice-president removable or allowing votes of confidence, but to rethink the way the office is treated and in particular to abandon the doctrine of 'respect for the office' which bedevils your politics.
When the issue of Bush's national guard record was moot, I remember being deeply surprised watching Meet the Press when the host asked: 'Is it appropriate to ask if the President of the United States is a deserter?' If that had been asked on the Australian media the immediate comeback would have been: 'Is it appropriate for the President of the United States to be a deserter?' I'm not addressing whether Bush did or did not evade his duties, to the national guard, merely arguing that it's a legitimate question got debate.

When Prime Minister of Australia John Howard appears on the media he is addressed as 'Mr Howard' or often 'John'. He is not thought of as a heroic figure who is owed deference of any kind, indeed a prime minister who tried to claim 'respect for the office' as a way of evading accountability would be in deep trouble with his own party as well as the media.

Both Australia and Britain have changed prime minister in time of war. In fact both countries changed prime minister during both world wars. I suspect that most Bush supporters would be reluctant to say that Chamberlain should have remained prime minister until 1945, out of 'respect for the office' or for any other reason.

The war effort did not collapse. The constitution remained in force. Wartime prime ministers received trenchant criticism in both countries throughout WWII, engaged in parliamentary debates, endured question time, and generally behaved as they would have done in peacetime. (Britain did postpone a general election. Australia held a total of four general elections during WWII and WWI and two conscription referendums as well.)

The idea of the president as hero-in-chief who cannot be questioned 'inappropriately' without endangering the constitution or the war effort drives many of the distortions in your politics. The answer may be changing the culture by agreeing that the president is not a demigod.

Once the demigod goes out the window, a whole lot of other questions such as accountability and answerability, the inordinate length of the presidential campaign, the perceived need for a permanent succession instead of a special election, the myth that the presidency is in some way above the law, and a number of other chancres could be excised from the body politic.

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