Sunday, July 01, 2007

Why have a vice presidency at all? And what if we have a disabled vice president?

Sandy Levinson

Shameless self-promotion: My latest thoughts on the implications of the Cheney vice presidency can be found in a column in today's Boston Globe, in which I suggest, drawing in part on earlier Balkinization postings, that there is no good reason to maintain the office of Vice President in our system or, should we feel we need to retain it, to have an "entrenched" VP who cannot be ruthlessly dismissed either by the President him/herself or by 2/3 of Congress assembled because of a loss of confidence. Getting rid of the vice presidency would not, obviously, require a new convention. An ordinary constitutional amendment should suffice, and I genuinely wonder why it wouldn't receive bi-partisan support.

Re an issue I didn't mention in the column: Let's assume the VP turns out to be an alcoholic or suffering from a mental disease (and there's certainly speculation, which I even more certainly don't have the professional knowledge to assess, that his various heart treatments might help to account for what many of Cheney's former associates testify is the "personality change" he has undergone in recent years). Is that an impeachable offense? Very early in our history, a federal district judge, John Pickering of New Hampshire, became the first federal judge to be impeached and convicted. A short description of the case is as follows:

Judge John Pickering of New Hampshire was the first federal judge to be removed from office after serving nine years on the bench. After being impeached by the House of Representatives in February 1803, he stood trial before Vice President Aaron Burr and the Senate. The trial ended with a guilty verdict and a 19-9 impeachment vote along party lines on March 12, 1804. News reports from the time claimed that Pickering showed signs of mental illness while he was on the bench and that his impeachment stemmed from accusations of smuggling, political favoritism, greed, drunkenness and insanity.

University of Chicago Prof. David Currie argued in his landmark study of the Constitution in Congress that this was an illegitimate use of the impeachment clause, that mental illness, however severe, did not constitute a "high crime and misdemeanor." Obviously, if he had really been guilty of "smuggling" or demonstrable "political favoritism" or "greed," the technicalities should have been met, but if, as is usually the case, the gravamen of the charge was "drunkenness and insanity," then we may have a problem. The 25th Amendment, it should now be obvious, is a decidedly incomplete piece of work: It speaks, at least formally, to the possibility of presidential incapacity--I say "formally" because it appears clearer and clearer than insiders in the Reagan second term presidency simply ignored signs of incipient Altzheimer's--but it's completely silent with regard to the possibility of vice presidential incapacity. Senator Birch Bayh and his colleagues were apparently so worried about the possibility that, say, JFK might have lived instead of being mercifully killed instantly, that they wanted to make sure that there was a procedure for legitimate succession even with a "living" president who had become disabled. That was a completely legitimate worry, but they really dropped the ball in not thinking of the possibility of a sufficiently debilitated vice president, who should be not be a heartbeat away from the Oval Office.


The only thing I could think of that would be more pointless than redesigning the entire Constitution to deal with a Vice President you don't like would be commenting on the redesign, so I won't.

I've always been fascinated that Cheney's health profile doesn't get more press scrutiny. Cardiac patients usually are prescribed anti-anxiety medications because the heart damage leaves them with CHRONIC, INTRACTABLE, anxiety.

Think about it. Cheney's always worried about "them" getting "us." He's SUPER secrative, punitive as all get out, and spouting all manner of paranoid crap. Constant, poorly controlled, anxiety will distort brain chemistry and function (see PTSD), and eventually impair function.

Do a quick google search on the med school's web sites concerning heart disease. It will be an educative moment.

@sean: I've never understood posts like yours on this site. You apparently didn't even read the post carefully (and don't even really understand the basics of con law) because there would only need to be a const am, not "redesigning the entire Constitution" . . . I hope in the future you can do better than make (incorrect) partisan quips . . . if not, there's always ATL for you

One possible political incentive for keeping the VP is that the office has traditionally been used for "ticket-balancing" in presidential elections, choosing a running mate who somehow appeals to a constituency that the presidential candidate might not (the whole concept of a "running mate" is under question here).

Of course, this can lead to poisoned relations between the president and VP once they actually get into office, not to mention unwelcome surprises when the president dies in office. And removing the office of the VP might be palatable if everyone loses the advantage.

I have known a few Vice Presidents and on that basis strongly support the comment. The historical truth is that the job was poorly constructed from the get-go and then shakily reshaped when its defects became too serious to overlook. The struggle by competent and well-meaning folk to make something of it has usually ended in despair and the current incumbent's exercise of power from the position only shows why that is not the direction in which to go with the darn thing.

We don't need it. The Speaker can handle the job in an emergency and pending the replacement of the President in a crisis, which can be done in innumerable better ways and no worse way that I can imagine than the method we have.

Is there any reason Bush could not, right now, remove all Cheney authority from the Executive Branch?

It seems the answer to control of the VP is to appoint a president who will assume a leadership role.

I've said it before, but a president who lets someone resign instead of being fired for bad deeds essentially promotes those deeds. Similarly, a president who cedes power is useless, that all by itself is a reason to remove him. The real problem is that the president is replaced by the VP upon removal. The rules of succession seem more of a problem, along with other branches of government which do not wish to play their role.

I think it would make more political sense to propose such a Constitutional Amendment AFTER a Democratic Vice President is sworn in.

Given the fact that all of the VP's functions are duplicable by other offices--the president pro tempore does most of the presiding over the Senate, for instance--I would certainly support an amendment that removed the office altogether, especially in light of the recent "not an executive / not a legislator" claims. I think politically, it will be a difficult sell; as matthew points out, there are some benefits to the political party that they will loathe surrendering.


Who would break tie votes in the U.S. Senate?

And, since I think an entrenched Speaker of the House (did you know it is not even a requirement such person be a member of Congress?) is an idea whose time has passed, we should amend the Constitution to eliminate it as well.

And, since I think an entrenched Speaker of the House (did you know it is not even a requirement such person be a member of Congress?) is an idea whose time has passed, we should amend the Constitution to eliminate it as well.

The Constitution call for Congress to choose its own officers, which leaves them considerable discretion in such matters.

Who would break tie votes in the U.S. Senate?

There's so many options, I don't know where to start....

1. Simply have the Senate not able to pass any laws that can't obtain a majority of the elected senators.

2. Have the President of the Senate be elected like the current president pro tempore, and have his vote count for double.

3. Have the president of the Senate appointed by the President of the US.

4. Have a machine certified by the IEEE to give perfectly random results pop the aye or nay up on a large projected screen. During long sessions, the screen could double for partisan birthday announcements, organized cheers, close-up photos of senators who are in the chamber, and contests between animated versions of different food products available in the Capitol Food Court.

5. "Bossie Bingo" on the national Mall.

6. Captain Pike. One flash means "aye". Two flashes means "nay."

6. A 101st senator that provides representation for Puerto Rico and all other non-state territories.

Sorry, I know that last one was a bit of a stretch.

Not at all, since that would be extremely cool to hold a running lottery of D.C. residents: Be President of the Senate for a Day!!!

Or, the Constitution could simply mandate Jefferson House Rules: "In case of a tie vote, a question shall be lost." (This provision was adopted in 1789. Before the House recodified its rules in the 106th Congress, it was found in former clause 6 of rule I -- H. Res. 5, Jan. 6, 1999, p. 47).

Getting back to the topic, I do have a question for Professor Levinson about his Boston Blobe article, in particular, what does this mean:

"There is, as a practical matter, almost nothing we can do to affect Cheney's tenure as vice president and, perhaps, president."

You think Cheney is President, not just Vice President? Or, you know of some assassination plot against Bush? Are you predicting that Cheney will run for the Presidency?


Professor Balkin is merely applying "quantum cheneyism".

Because of Cheney's obsessive secrecy, like Schroedinger's cat, Cheney's state at any time is composed of the superposition of all his possible states. One of those, as VP, is that he'll be President, should President Bush meet another pretzel he can't subdue, or through other unforeseen event.

Therefore, it is only proper to speak of him at any time in the future as "VP or President" Cheney, until that time has passed and he's been sighted and his state at that time has been observed.

I realize this is, perhaps, a bit esoteric, but just remember, as science now knows, at the quantum level it's all probability.

Charles wrote:
I think it would make more political sense to propose such a Constitutional Amendment AFTER a Democratic Vice President is sworn in.

In the event a democratic VP is sworn in, and then a republican administration takes office later, would you support reinstating the office?

C2H50H said...

Professor Balkin is merely applying "quantum cheneyism".

Another way of looking at it is the collapsing wave function. Cheney's actual mass is divided between all his possible states, and he only 'collapses' into one Cheney instance in the event he is actually observed.

Professor Levinson,

Mea culpa, I glanced again at the article, and saw the error of my ways.

So in that last comment, please read "Balkin" as "Levinson".

If it's any consolation, I do feel stupid just now.

Also, in "VP or President", it is also correct (mathematics doesn't translate all that well into English) "VP and President".


Perhaps "Balkin" and "Levinson" are the same person as well.

Blobe = Globe


Another way of looking at it is the collapsing wave function. Cheney's actual mass is divided between all his possible states, and he only 'collapses' into one Cheney instance in the event he is actually observed.

This is why his location is often listed as undisclosed, and probably caused the Google Earth pictures of his residence to blur.

Another little known factor in his quantum indeterminancy is that if we know his location, we cannot measure his political power, but if he exerts measureable political power, we cannot determine his location.

Fraud Guy,

The problem with your argument is that the uncertainty is a function of the mass, or, in this case, of the political gravitas. Bush is basically the political equivalent of a neutrino, but Cheney, he's more along the lines of an alpha politician, or perhaps some form of machismo dark matter.

I don't really think there's ever been any question of his direction, no matter how many times he's been observed or inferred...

I just want to know, was it Bush or Cheney (or some cobination thereof) who just commuted Libby's sentence?

The mainstream media are in a tizzy -- GO BUSH!!!


The answer to your first question (is it Bush or Cheney?) is: yes.

As to "Go Bush!" -- yup, down another 3 or 4 poll points at least, and this means that he's effectively ended his presidency.

Good riddance.

I would bet you this (and the end of the immigration bill) bumps UP his approval rating at least 3 or 4 poll points -- Pelosi ain't never going to impeach him -- whether you like it or not, Bush is staying til January 20, 2009!!!

Statement by the President

White House News

The United States Court of Appeals for the D.C. Circuit today rejected Lewis Libby's request to remain free on bail while pursuing his appeals for the serious convictions of perjury and obstruction of justice. As a result, Mr. Libby will be required to turn himself over to the Bureau of Prisons to begin serving his prison sentence.

I have said throughout this process that it would not be appropriate to comment or intervene in this case until Mr. Libby's appeals have been exhausted. But with the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision.

From the very beginning of the investigation into the leaking of Valerie Plame's name, I made it clear to the White House staff and anyone serving in my administration that I expected full cooperation with the Justice Department. Dozens of White House staff and administration officials dutifully cooperated.

After the investigation was under way, the Justice Department appointed United States Attorney for the Northern District of Illinois Patrick Fitzgerald as a Special Counsel in charge of the case. Mr. Fitzgerald is a highly qualified, professional prosecutor who carried out his responsibilities as charged.

This case has generated significant commentary and debate. Critics of the investigation have argued that a special counsel should not have been appointed, nor should the investigation have been pursued after the Justice Department learned who leaked Ms. Plame's name to columnist Robert Novak. Furthermore, the critics point out that neither Mr. Libby nor anyone else has been charged with violating the Intelligence Identities Protection Act or the Espionage Act, which were the original subjects of the investigation. Finally, critics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury.

Others point out that a jury of citizens weighed all the evidence and listened to all the testimony and found Mr. Libby guilty of perjury and obstructing justice. They argue, correctly, that our entire system of justice relies on people telling the truth. And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable. They say that had Mr. Libby only told the truth, he would have never been indicted in the first place.

Both critics and defenders of this investigation have made important points. I have made my own evaluation. In preparing for the decision I am announcing today, I have carefully weighed these arguments and the circumstances surrounding this case.

Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.


Politically, it's red meat for the base. The people who were all down on Bush over the immigration issue are now dancing in the streets and cheering "GO BUSH!!!" like they're back in high school.

Since Bush can't possibly fall any further among Democrats and Independents, there's no downside to engaging in base-pleasing maneuvers at this point in his Presidency. It's the only place he can look to obtain any political capital whatsoever.

Shhh, Steve!! Don't tell C2H50H that until he accepts my bet!

TANJ = Trial Attorneys of New Jersey?


The upshot of this is going to be the hardening of the lines between the 20-odd percent who still support the Bush administration and the 80 percent who find their actions abhorrent and counter to the rule of law, personal accountability, and the responsibility of government to the people.

I'm not an advertising expert, but just cast your mind forward to the election of 2008, when the Democrats run an add that goes "Fred Thompson: from the the people who brought you George Bush, Dick Cheney, and Scooter Libby."

Do enjoy yourself tweaking the nose of the electorate. It's what we call a pyrrhic victory.

So, no bet then?

(Thanks a lot, Steve!)

cobination = combination

Aw, Charles. I didn't mean to slaughter your cash cow. But to be fair, you've had a great day already!


TANSTAAFL, and hopefully the bill is finally coming due.

The Globe article is nicely done, save the typographical error naming Teddy (Bull Moose) Roosevelt as Roosevent on page four. I appreciate the article's historical background materials links, additionally. With regard to the medical discussion, I have worked in an allied field for many years, and see it as a societal issue much wider than merely applicability to elected officials, yet, one which ancillary legislation likely might address when the civilization matures sufficiently to examine under which conditions it intends to provide universal healthcare coverage, as part of that process certainly will be assessment of the multiple definitions of meaningfulness of function in one's life and in our community.

As for the institutional problems with the vice presidency, mentioned by some commenters variously, above, as well as by profLevinson, I have what is perhaps a more corporate view of the functionality of the vice president, and saw in the specious argumentation why beginning in 2003 the office of vice president proclaimed exemption from document preservation rules in the executive branch, therefrom launching a fourth branch immune to congressional or executive oversight, an actual opportunity for congress instead to examine what are the purposes the vice presidency serves, and to reconfigure it somewhat on the model of a watchdog agency, a hybrid, precisely the Cheney claims, an entity primarily in service of the President, but also serving Congress.

Actually, concentrating our study upon the raisondetre of a vice presidency is to regard one of the delightfully ungainly parts of our governmental construct. Classical theories of government all examine the transition of power; in our times term limits have become commonplace in state legislatures. But, to summarize some of the government power handoff concepts, often a strong president will select a weak second in command, thereby assuring concentration of power in the office of the president. The thesis goes, power is by its nature aggrandizing. An alternative, as discussed by a commenter above, and in profLevinson's Globe article is a campaign ticket balancing motivation dominating the selection process for the top vote getter's picking a runningmate. My sense is Bush had a corporate view of his future responsibilities, leading him to accept easily a strongman for vicepresident, and the events of the day in September 2001 caused a quantum shift in the conduct of the executive, as we ruefully know. Predictably, I favor the ticket balancing we currently have, for its proximity to voters, as usually vice presidents have a record of public service and proven electability.

The transition from one term in office to the next is proving an interesting one for the Republican party. And I think that process explains much of the turbulence we are seeing now: who is to have the preconvention reins of the party, as conventions no longer elect nominees, rather, the party machine assures the convention is a stageshow after the fact.

Charles: The mainstream media are in a tizzy -- GO BUSH!!!

At least you've dropped any pretense of non-partisan analysis. The question remains, what attracts someone of your political stripe to a site like this? I tend to think it's something akin to the urge that drives vandalism, but was curious to hear in your own words.

Since all the action seems to have moved here, let me update that I finished the plurality opinions today in "Parents Involved," and at the risk of being accused of self-promotion, invite you, Charles, and others interested, to peruse my stream-of-consciousness notes and comments here,. Replies/rebuttals welcome there or back on the "Strom's Brown" thread.


pms_chicago: 6. Captain Pike. One flash means "aye". Two flashes means "nay."

Dude, that's just too funny. But is it lost on this crowd? Only thing geekier than the way I laughed on reading this would be to be the guy who wrote it...


Levinson writes"

". . . it appears clearer and clearer than insiders in the Reagan second term presidency simply ignored signs of incipient Altzheimer's . . . ."

This is an extremely complex issue when one considers all the possibilities:

1. Physical incapacity, such as brain anurism or hemorhage;

2. Mental illness;

3. Republicanheimer's -- the deliberate inability to remember.

The first two are relavtively easy to diagnose with some certainty (presuming a nonpartisan professional in the second instance). The third, though: such appearing to be a new disease, we don't yet know whether a reliable diagnosis of it would require the skills of a medical professional, or the skills of a lawyer, or the skills of the operator of a lie-detector, or all three. If the latter, and professional fees being what they are today, the taxpayer would complain at the expense, so impeachment would be the cheaper course.

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