Saturday, August 16, 2008

Was Addington Right about the Vice Presidency?

Stephen Griffin

You may remember the mildly weird controversy over whether the Vice President is really a member of the legislative branch, not the executive. David Addington defended this view when he appeared before a House subcommittee recently, referring I believe to OLC opinions.

One thing I like about reading history is that you always learn something new. I came across this passage in Douglas T. Stuart's book Creating the National Security State (Princeton, 2008):

[He notes that the vice president had been added to the membership of the National Security Council by 1949 amendments to the National Security Act and continues]

"Richard Nixon was asked by Eisenhower to replace the Secretary of State as presiding chairman of the NSC in the president's absence. Eisenhower would later praise Nixon for his expertise in the field of foreign and defense affairs, and register his special appreciation of Nixon's management of the NSC while he was recovering from his heart attack. The president nonetheless understood that, since the vice president was not officially a member of the executive branch of government, there were limits to what he could be asked to do in order to improve administrative efficiency. As the [Senator Henry] Jackson Subommittee would subsequently observe:
'Of course, the role of the Vice President need not be limited to his
constitutional obligation to preside over the Senate. But any attempt to
make the Vice President a kind of Deputy President for Foreign Affairs would be
to give the wrong man the wrong job.'"

Let's notice the implications of this point of view about the vice presidency, apparently widely held in the 1950s. If the VP is indeed more part of the legislative branch than the executive, that means he cannot be given any substantial executive responsibility. Among other points, that would violate the separation of offices that is so important to the the constitutional plan. We could also infer the converse: if for some reason the vice president had to be given substantial executive powers, it would follow it would no longer be appropriate for him to preside and vote over the Senate (he would be ruling two branches at once). Of course, Cheney has done both. Immunity from statutes governing the executive branch (which is what Addington was after) would seem to have its price!


Does this suggest that the Vice-President is a constitutional Mugwamp?

This is a key provision:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

If the V.P. is a "member" (not just a "senator" or "representative," this suggests s/he should not "hold any Office under the U.S." including any number of executive offices. The semicolon suggests that there are two classes of people involved here, not just senators and representatives.

How does this apply to the membership of the NSC? Does the spirit of the clause limit the VP's role in the presidency overall? After Adams, it was over a hundred years before the VP went to regular Cabinet meetings. Thomas Jefferson considered himself a member of the Senate and turned down a role in the Adams Administration.

Cf. The Cheney Energy Task Force Case, where the Supreme Court spoke of the "petition involving the President or the Vice President" and "claims against the Executive Branch" w/o implying that the VP was some sort of barnacle.

The VP seems a special hybrid, its current role perhaps not that "originalist" in character, fwiw. But, it seems off to suggest members (sic) of executive positions and roles (official and unofficial) are not "members" of the executive.

And, let's be honest, de facto "more" a member of the latter.

Well I think the VP is clearly a member of the executive branch.

Presiding in the Senate isn't any different than the President's authority to sign legislation or submit treaties or nominations to the Senate. The two branches function together, but to the extent that the VP acts as an agent of the President, he is in and of the Executive.

The electorate votes for the vice president as a "unitary" part of the party ticket for the executive office. The chair of the senate is ex officio part of duties of office by the vice president. The two political parties have no voice in who chairs the senate. The Senate as a whole has no voice in selecting its chair.

It is helpful to review the Scotus opinion in the Cheney energy task force matter 03-475, 44pp published June 2004; also germane is the winsome 16pp memo entered by Associate Justice Scalia in bound volume 544 pp.913-929 which compares various executive officials' junkets in companionship with Scotus justices present and past, and the urgent need to remain unrecused as the instant matter's majority would shift to favor of complainants if recusal occurs, or some such tautological stance.

While the "The electorate votes for the vice president as a 'unitary' part of the party ticket for the executive office", the electors of the Electoral College are not required to vote for a president and vice-president from the same party.

Article II, Section I of the Constitution should certainly be interpreted by any reasonable person to place the office of the vice-president within the executive branch.

The problem with this improper delegation of powers argument is that the President never truly delegated any of his Article II powers to the Vice President.

Bush essentially made Cheney his first counselor and granted his office a portfolio to develop strategy in a number of areas. Because it was known that Cheney had the ear of the President and through his own extensive array of government contacts, Cheney was able to exercise a great deal of influence within the bureaucracy, but Bush did not delegate to him any of the powers of the President.

Bart, I don't think you are wrong about what actually happened under the Constitution, but the Bush Administration certainly made all sorts of CLAIMS about independent non-delegated executive power of the Vice President (they even won one in the Supreme Cuort).

Basically, the Administration's position is that the VP is in whichever branch provides him with more immunities and less accountability in the particular situation. And that's what we can't have. We need to pick a branch and apply 1 set of rules to the veep. And to conservatives, I would say-- imagine if Clinton had used these arguments to shield everything Gore did from investigation or accountability.

Might the concept of "Ultra Vires" apply to the role of Cheney outside of the Senate?


I agree that the President has characterized the office of VP in contradictory ways to gain legal advantage over Congress in their partisan sniping matches.

I simply cannot get all exercised over utterly meaningless inter-branch partisan gotchya contests. Given the basement popularity of the President and the sub basement popularity of the Dem Congress, i doubt I am alone in thinking that these people are neglecting to do their jobs while playing these games.

Thus, the issue of whether the VP is more executive than legislative is purely academic to me.


And to conservatives, I would say-- imagine if Clinton had used these arguments to shield everything Gore did from investigation or accountability.

Conservatives in general ignored (or ridiculed) the things that Gore did do ... you know, like issuing a report that said that aircraft cabin doors should be strengthened to prevent cockpit intrusions....

Outside of competency, though, the main difference between Gore and Cheney is that Gore didn't try to do anything in secret.


"Bart" DePalma:

I simply cannot get all exercised over utterly meaningless inter-branch partisan gotchya contests.

That you think this is all "utterly meaningless inter-branch partisan gotchya contests" just shows that you have nary a clue. Sniffing Clinton's crotch and Lewinsky's panties was a "gotcha contest". Torturing people, and beating some of them to death in the process is not a "gotcha". That's just plain illegal no matter where you go. Pretending that complaints about such happening is just political gamesmanship shows an amorality that is staggering in its enormity.


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