Saturday, August 16, 2008

He's not called the Vice-President for nothing


This is a followup to Steve's fascinating post. The Cheney/Addington argument that the Vice-President is not part of the executive branch flows in large part from the fact that the Vice-President presides over the Senate and has a vote when the Senate is tied.

But this tells us nothing about whether the Vice-President is a member of the executive branch. The President himself has a vote in every piece of legislation that comes before his desk. He can veto it, which may be more important than having the deciding vote in the Senate. (That is because he can veto the work of both houses, not just decide the issue in the Senate.)

Once we view the President's veto as a characteristic function of the Executive Branch, it's not difficult to see the Vice-President as representing the Executive's interests in the Senate. He does this not only by ruling on procedural motions and by breaking tie votes, but also, when he presides, by reminding the Senators that the President's envoy is literally sitting in the room with them as they debate.

Next, consider the Vice-President's role in the original 1787 Constitution as the President's successor in cases of death or disability, as further clarified by the 25th amendment. If the Vice-President can take on all of the executive functions in the case of the president's disability, it is hard to argue that he is not centrally part of the executive branch. Furthermore, as the office has developed over time, the Vice-President increasingly has moved from being a ceremonial officer to being assigned to develop executive policy. As Steve's post reminds us, this was not an obvious development in the early days of the National Security State, but it increasingly made sense as the Executive branch grew enormously in the second half of the twentieth century. By Jimmy Carter's presidency in the mid 1970's, it made perfect sense to ask the Vice-President to do what vice-presidents often do in large corporate enterprises-- develop and implement specialized tasks.

All of this is not to doubt the *logical* possibility that the vice-President could belong to no branch, or to two branches simultaneously. But as a structural matter, and as a matter of how constitutional structure has evolved during the 20th century, it makes little practical sense today. That is why, when Cheney and Addington floated this particular trial balloon, people regarded it with derision, which it most certainly deserved, and as an blatant attempt to avoid accountability, which it most certainly was.


Thomas Jefferson appears to have considered the vice presidency a legislative office. Following his election as vice president in 1796, Thomas Jefferson wrote to James Madison regarding his role in the Adams administration:

"My letters inform me that Mr. Adams speaks of me with great friendship, and with satisfaction in the prospect of administering the government in concurrence with me . . . . If by that he meant [my participating in] the executive cabinet, both duty and inclination will shut that door. . . . The Constitution will know me only as a member of a legislative body."

Jefferson to Madison, January 22, 1797, quoted in Edward J. Larson, "A Magnificent Catastrophe" at 32.

Jefferson's position made far more sense before the 12th amendment, because the Vice-President, who received the second greatest share of electoral votes, might well be a strong political opponent of the President. But after the 12th amendment, the President and Vice-President ran on the same "ticket," and usually came from the same party, so they were less likely to be as opposed as Jefferson and Adams would become. That is not to say that some Vice-Presidents have not been political rivals of the sitting President, only that since the 12th amendment they are generally seen as running together to win the Presidency in the national election rather than against each other.

This is the Bush administration's whole approach to governing under the Constitution: claim some kind of neither-fish-nor-fowl status that puts every activity into a loophole free from oversight. This is why we have "unlawful enemy combatants", neither criminals nor POWs so the rights of neither apply. This is why we have the prison at Guantanamo Bay, neither in nor out of United States jurisdiction so it's supposedly a zone where we can do anything we want to prisoners. And it's why Cheney claimed his office was legislative-yet-not-legislative. It's a continuous display of bad faith.

Jefferson wasn't saying that the Constitution didn't consider him an executive officer if he acted as one. He was just saying he wasn't personally going to do it. There's a big difference between that, and actually functioning as part of the executive cabinet and claiming you're somehow immune from the rules of the executive.

Jefferson said that both "inclination" and "duty" prevented him from participating in the administration, and that the Constitution placed him in the legislature. Perhaps the 12th Amendment changed more than the method of selecting the Vice President, but it is still interesting to reflect on Jefferson's view.

Politics being the ungainly leviathan it is, we are likely to see some novel outcomes, even in the current political convention cycle this summer. Current time aside, I agree with the reply from author JB, that the timeslice configuration of the VP post at the time Cheney took office was an executive post exclusively. That is all the voters had a chance to select. The choice Cheney's party provided voters was to select the combination of VP and President. As most voters recognize, there is No Way we can vote for VP from the opposition party, as a replacement for what the party's convention has decided. This is one of the novel beauties of the US system, its very unparliamentariness, though, as historians observe, parties' functions are altered compared to the early years of the republic, nevertheless, the Cheney moment of election was within the modern framework, and irrespective of the senate functions of the VP. VP is part of the presidency bundle for which we vote.

(1) Jefferson was not one of the Framers -- he was in France, IIRC. His notions of how the fledgling gov't should work were dictated more by his own understanding (and his whims and partisanship -- OF COURSE he was going to find some basis to shun Adams) than by the shared understanding of the Framers.

(2) I agree w/ Profs. Lubet & Balkin that the VP acts as more of an executive check on the legislature, than as a legislative officer in his own right. N.b. that the Senate and the executive act more closely together than do the House and the executive -- only the Senate confirms officers and ratifies treaties. It thus makes a certain degree of sense to give the executive an extra leg up in the Senate.

Isn't the simple fact that the office of the vice-president is established in Article II, Section I, which establishes the office of the President, be enough to firmly place the vice-president in the executive branch?

On one hand, the Vice President is included in Article II and would appear to be a member of the executive branch. However, Article II also grants all executive power to the President and only grants the VP legislative powers.

The fact that the VP is the next in line to succeed the President does not in itself make the VP part of the executive branch. The Speaker of the House is also in line to succeed the President.

Were there any debates among the drafters of the Constitution over the role of the VP which might shed some light on this subject?

Bart asks: Were there any debates among the drafters of the Constitution over the role of the VP which might shed some light on this subject?

From Madison's notes:

Section 3. (see Sepr. 4). "The vice President shall be ex-officio President of the Senate"

Mr. GERRY opposed this regulation. We might as well put the President himself at the head of the Legislature. The close intimacy that must subsist between the President & vice-president makes it absolutely improper. He was agst. having any vice President.

Mr. Govr. MORRIS. The vice president then will be the first heir apparent that ever loved his father. If there should be no vice president, the President of the Senate would be temporary successor, which would amount to the same thing.

Mr. SHERMAN saw no danger in the case. If the vice-President were not to be President of the Senate, he would be without employment, and some member by being made President must be deprived of his vote, unless when an equal division of votes might happen in the Senate, which would be but seldom.

Mr. RANDOLPH concurred in the opposition to the clause.

Mr. WILLIAMSON, observed that such an officer as vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.

Col: MASON, thought the office of vice-President an encroachment on the rights of the Senate; and that it mixed too much the Legislative & Executive, which as well as the Judiciary departments, ought to be kept as separate as possible. He took occasion to express his dislike of any reference whatever of the power to make appointments to either branch of the Legislature. On the other hand he was averse to vest so dangerous a power in the President alone. As a method for avoiding both, he suggested that a privy Council of six members to the president should be established; to be chosen for six years by the Senate, two out of the Eastern two out of the middle, and two out of the Southern quarters of the Union, & to go out in rotation two every second year; the concurrence of the Senate to be required only in the appointment of Ambassadors, and in making treaties, which are more of a legislative nature. This would prevent the constant sitting of the Senate which he thought dangerous, as well as keep the departments separate & distinct. It would also save the expence of constant sessions of the Senate. He had he said always considered the Senate as too unwieldy & expensive for appointing officers, especially the smallest, such as tide waiters &c. He had not reduced his idea to writing, but it could be easily done if it should be found acceptable.

Eight states voting to accept the proposed clause, the point carried.


Thanks for the debate quote.

It appears that the drafters were only trying to find something for the VP to do while he was waiting for the President to die. The drafters declined to grant the VP executive powers and did not really consider the VP a member of the legislature. Therefore, I think one could reasonably argue that the VP has no real home under the Constitution.

Therefore, I think one could reasonably argue that the VP has no real home under the Constitution.

Can't follow you that far -- he is a member of the gov't, and as I said above, it makes more sense to see him as a (light) check on the Senate, than as a member of the Legislative Branch.

Various administrations have made him more or less a part of the Executive; I would be interested to see *any* record of the Congress's making him one of the family.


But if that is true, what rules should apply when he is delegated responsibility by the President?

It seems to me that this puts him back in the "Executive" category (at least with respect to the delegated duties), doesn't it?

And then there's empiricism:

In addition to the Vice President's Office in the West Wing



I have no real dog in this fight. It just occurs to me that an office without executive power is difficult to characterize as executive.

Additionally, the VP is not necessarily even a close ally of the President. Often, the President will choose a political rival simply to assemble a political coalition to win election, then largely ignores him when in office.

The VP is essentially a spare executive waiting in limbo with a couple perfunctory legislative powers.

The VP is essentially a spare executive waiting in limbo with a couple perfunctory legislative powers

See, thereya go. A tire functions to support and move the automobile.

The spare tire does neither of those things, but is nonetheless a tire, not an engine or a battery.


The problem with the delegation theory is that I am unaware of any President which has delegated one or more of his Article II executive powers to the VP.

In reality, Cheney is simply the first counsel to the President. Bush never gave him any real power, but rather a portfolio to develop strategy to advise him. Because he has the ear of the President and many contacts within the government. Cheney has been more successful than any prior VP that I can recall in influencing policy, but he has no power to issue any executive orders to put his policy preferences into effect.


A spare tire is always a tire. In contrast, the VP is never the President unless the President dies or becomes incapacitated.

The Speaker of the House has the same potential to become President as does the VP, but no one thinks of her as a part of the Executive.

The succession argument really has no legs.

The only real arguments for the VP as executive position are that the VP is included in Article II and is chosen by the President.

And then there's empiricism:

In addition to the Vice President's Office in the West Wing

Another empirical test is whether the VP has ever claimed executive privilege.

Another textual consideration is that the VP can be impeached, unlike members of the legislature.

The Office of Legal Counsel issued a series of opinions over the years pertaining to the status of the Office of Vice President. These were written up and posted in the Federation of American Scientists blog Secrecy News.

"Bart" Depalma:

Therefore, I think one could reasonably argue that the VP has no real home under the Constitution.

Spelling error there: "home" should be "job".

That being said, can we then arrest Cheney for impersonating an officer?


The problem with the delegation theory is that I am unaware of any President which has delegated one or more of his Article II executive powers to the VP.

Well, other than Dubya, who has essentially let Cheney run wild, including his hitman Addington....


The only real arguments for the VP as executive position are that the VP is included in Article II and is chosen by the President.

Not that he is chosen by the president, because that is not necessarily the case; he might be chosen by the convention of the party that nominated the president. I'm not sure what the presidential nominee could do about that if he didn't like it. [In practice, this is highly unlikely to happen, but imagine if it did: what would (could) Obama do if the Democratic convention nominated Hillary as VP, against his wishes? I suppose Obama could refuse to run on the ticket as president, but that is even less likely to happen.]

Anyway, the salient point is that the VP's office is created by Article II and the VP is elected on the same ticket as the president, by the same national electorate as the president, using a similar elective mechanism as the president (delegates, rather than popular vote), and serves a concurrent term as the president. Also, the VP is impeachable by the Congress on the same terms as the president, and not on the same terms as a member of the House or Senate.

In contrast, no member of the legislative branch is mentioned in Article II, no member of the legislative branch is elected by delegates as opposed to a popular vote of the relevant population and no member of the legislative branch serves a 4-year term. Any member of the legislative branch can be expelled by a vote of the body of which they are a member, but the Senate acting alone cannot remove the VP or take away his tie-breaking vote in the Senate.

The only legislative function that the VP has is the ability to break a tie in the Senate. (However, unlike the House Speaker, he cannot make a tie or step down from the podium and vote when there is not a prospective tie on the horizon.) That hardly seems to override all of the other indicia of executive-ness. The Chief Justice presides over presidential impeachment trials, but no one thinks he is moonlighting as a member of Congress.

FWIW, I don't think it matters that the VP has an office in the West Wing or the OEOB; I think he also has an office in the Capitol. In any event, if he had an office in the Supreme Court, that would not make him an Article III judge. It's just a matter of convenience.

Incidentally, I just don't get Bart's argument that the VP is not a member of any branch of government, or the alternate argument that he can be a member of two branches simultaneously.

The Constitution creates three separate and distinct branches of government. Every federal government actor must be a member of one (and only one) branch. Otherwise, the separation of powers does not work since you would not have "ambition counteracting ambition" if a given principal was an overlapping member of two departments and would benefit by either one aggrandizing power.

[I]t is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others . . .

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.

Federalist 51

If the Speaker becomes president through the 25th Amendment, it is commonly assumed he must resign from the House, even if he is president only temporarily. Why would that be the case if the VP could sit in two branches at the same time? Why couldn't the Speaker do the same? Technically, the Speaker does not even need to be a member of the House!

Moreover, assuming arguendo that the VP was in two branches, wouldn't that mean that he was subject to restrictions placed on members of both branches? Why would that mean he was not subject to restrictions placed on either branch? If I work for two masters, I am subject to the whims of both. Saying that the VP is subject to the rules of neither would amount to saying that the VP is really a fourth branch of government, which is just idiotic.

Vice President John Nance Garner said of his office "It ain't worth a bucket of warm spit." But apparently it is. Now I don't know if EBay has ever put a value on a bucket of warm spit. But Cheney has been using a bigger bucket. Maybe his bucket's got a hole in it. With all the parsing of which branch or branches the VP is in, it is the President who clearly heads the Executive Branch. So George W bears the responsibility for reining in Cheney. But it seems that Cheney actually has been holding the reins. Maybe the impeachment process should be applied to Cheney to test whether the VP is of the Executive or Legislative Branch, or both. But keep in mind that this examination of Cheney would be applied by those defending Cheney against a Democrat VP. In the meantime, this bucket of warm spit serves well full employment of the legal profession. By the way, the cyberspace bucket seems to have infinite capacity. Have a chaw.

Funny, but the Executive Branch of the USA government, responsible for putting together this website, considers the VP to be within the "Federal Executive Branch".

According to Appendix V of the 2004 "Plum Book" the office of VP employees engaged in Executive Branch duties are paid from appropriates for operation of the Executive branch.

The 2004 Plumb Book

Every four years, just after the Presidential election, the ``United States Government Policy and Supporting Positions,'' commonly known as the Plum Book, is published, alternately, by the Senate Committee on Governmental
Affairs and the House Committee on Government Reform.

Saying that the VP is subject to the rules of neither would amount to saying that the VP is really a fourth branch of government, which is just idiotic

I agree.

But that is the claim being made.

The Cheney branch, a heretofore undiscovered fourth branch of government.

Also empirical, but important, the VP is generally included in the cabinet, a quintessentially executive body, even in parliamentary systems like the one from which the U.S. rebelled, in which cabinet members are also generally legislators.

Be slow to fall into friendship; but when thou art in, continue firm & constant.
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