Downsizing the Veep

Maybe I'm wrong, but I think I'm the source for the only constitutional question asked in Thursday's vice-presidential debate. Moderator Gwen Ifill asked one that sounded a lot like the one I asked that morning in the New York Times:

IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

IFILL: Vice President Cheney's interpretation of the vice presidency?

BIDEN: Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he's part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.

Biden made more of an attempt than Palin did to answer the question Ifill asked, but his answer doesn't make much sense. Uh, Joe, Article I covers the legislative branch. And the veep's only power is legislative, presiding over the Senate and breaking tie votes. The Constitution doesn't grant him any executive power.

And yet here's Dick Cheney, co-president from at least 9/11/01 on, giving orders to shoot down planes, running large swathes of the War on Terror, and even exercising formally delegated executive powers over the control of information.

As Glenn Reynolds suggests, it's constitutionally suspect for the president to delegate executive power to officials he can't remove from office. He also notes that

there may be practical reasons to limit vice presidential involvement in day-to-day executive business regardless of whether we accept the characterization of the Vice Presidency as a legislative office or not. Whether or not the Vice President is seen as a legislative officer, the office of Vice President is something special. The Vice President is, after all, primarily meant to serve as a sort of spare President, and—as with spare tires or backup servers—it may be safest not to put the spare into ordinary service before it’s needed. Presidents are lost in three ways: death, resignation, and impeachment. Vice presidential involvement in policy has the potential to put the “spare” role at risk in at least two of these contexts. When Presidents resign or are impeached, it is often over matters of policy.

Although the risk that a Vice President will be involved in the precipitating events is hard to estimate, it is certainly higher for an activist Vice President than it will be for a Vice President playing a traditionally quiescent role. Though talk of impeaching the current occupants of either office is unlikely to come to anything, it illustrates the risks.... Had Carter been impeached or forced to resign as a result of the Iran debacle, Mondale’s public distance would have been important in preserving his ability to govern.

Whatever one thinks of the impeachment talk of the last few years, two and a half impeachments over our entire constitutional history is probably fewer than we ought to have had. And impeachment becomes more difficult when the president's replacement is deeply implicated in the activities considered grounds for impeachment.

And there are other problems with a Cheney-style vice presidency as well, problems that ought to be of particular concern to unitary executive fans. One of the more convincing arguments offered by Hamilton against the idea of a plural executive is that "it tends to conceal faults, and destroy responsibility." He continues,

The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.

That's certainly been the case over the last seven years. As Barton Gellman has recently shown, information about the so called Terrorist Surveillance Program was so tightly held among Vice President Cheney, David Addington, and their administration allies, that President Bush was unaware until the very last moment that the top echelon of his Justice Department was ready to resign over the illegality of the original program. When an activist vice president deliberately keeps the president in the dark, it can be difficult to discern where the buck really stops.

At the constitutional convention, when Elbridge Gerry objected to the veep's legislative role, Roger Sherman made the salient point that "If the vice-President were not to be President of the Senate, he would be without employment." Our early vice presidents didn't play an important role in the executive branch. Washington kept John Adams at arm's length from policymaking, and Adams was also frustrated in his attempts to actively manage the Senate as presiding officer. The best view of the vice-president's constitutional role is that the veep really is supposed to be a bucket of warm [fluid] unless and until he or she is called upon to assume office. And there's good reason for that. Here's hoping that Vice President Biden or Vice President Palin will spend less time making policy and more time attending funerals.