POLITICS OCTOBER 3, 2008
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
Last night, Gwen Ifill asked Governor Sarah Palin and Senator Joe Biden what their understanding of the role of the vice presidency was. The answers were not encouraging.Specifically, Ifill asked whether they agreed with Vice President Dick Cheney’s assertion that the vice presidency is a part of the legislative branch, as well as the executive branch. Cheney has made this assertion largely to evade inspections of his office by the National Archives’ Information Security Oversight Office--one of those inspections, for instance, was scheduled to occur during the investigation into the leak of Valerie Plame’s identity. In essence, Cheney is trying to have it both ways: supplementing his numerous claims of executive privilege with a claim to the legislative privileges that the Constitution lays out in Article I, section 6.Palin had the first crack at Ifill’s question. Although she spent most of her time reciting her executive experience (which, she convolutedly claimed, “is partly to be attributed to my pick as V.P. with McCain”), she also said that “our Founding Fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president.”But the thing is, our Founding Fathers created a system in which the vice presidency went to the Electoral College runner-up. And even though they didn’t anticipate the role that political parties would come to play, they knew enough to understand that this meant that the president and vice president might well be rivals. As a result, the Constitution gives the vice president no executive role at all, other than waiting for the president to die, resign, or become incapacitated. Indeed, John Adams, our first vice president, wrote to Abigail that “[m]y country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived.” The Founders didn’t think that the executive role of the vice president would be flexible; they thought it would be almost non-existent.It was not until the 1800 election, in which Thomas Jefferson and Aaron Burr tied in the Electoral College and it took 36 rounds of ballots in the House of Representatives before Jefferson emerged victorious, that it became clear what mischief could be worked by the original structure of the Electoral College. That election led to the ratification of the Twelfth Amendment, which ensured that the party with enough electoral votes to choose the president would also get to choose the vice president. It was the Twelfth Amendment, not the 1789 Constitution, that made it possible for the vice president to assume more of a role within the executive branch--although it was not until the Harding Administration in the early 1920s that the vice president (Calvin Coolidge) regularly attended cabinet meetings, and it was FDR who first used his vice president (John Nance Garner) as a liaison to Congress.But if Palin’s answer betrayed a lack of knowledge of constitutional structure, Biden’s was not a whole lot better. Skipping over Biden’s assertion that Cheney “has been the most dangerous vice president we've had probably in American history” (a bit of hyperbole is forgivable in the midst of a campaign, but is Cheney really worse than, say, the dueling and possibly treasonous Burr?), he continued by saying that “Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch.” It is true that Article I mentions the vice president, but Article I is devoted entirely to the legislative branch. In fact, let’s look at what Article I, section 3, clause 4 actually says: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”Biden, however, kept mangling away. “The Constitution is explicit,” he said. “The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote.” Well, not exactly. The vice president is always the president of the Senate--indeed, since the vice president was expected to have so little an executive role, presiding over the Senate was meant to be his day job. As Roger Sherman put it at the Philadelphia Convention, “If the vice president were not to be President of the Senate, he would be without employment.” Biden was therefore right to note that the vice president’s Senate vote is limited to breaking ties, but wrong to think that this constituted the entirety of his responsibilities with respect to Congress.The vice president does have a constitutional role to play in the Senate, and it makes sense to say that he can take advantage of the constitutional privileges granted to members of Congress--such as legal immunity from words spoken or from civil arrest--when he is acting in his senatorial capacity. But Cheney has sought to claim legislative privileges (in addition to executive ones) while acting in an executive capacity. This is a dangerous expansion of vice presidential power, because it puts him outside of any of the constitution’s established power hierarchies--he claims to be subject to the rules of neither branch, but to have access to the privileges of both. So, what do the candidates’ statements about Cheney’s claim tell us about how they might act as vice president?Although Palin never directly answered Ifill’s question, she seemed generally supportive of Cheney’s position, whereas Biden was clearly opposed. If Biden can be taken at his word, then, this may portend a more modest vice presidential role, in which he sees himself primarily as an assistant to the president, rather than the holder of an independent governing portfolio. In contrast, if we take Palin’s support for Cheney seriously, this suggests that she will use the vice president’s “flexibility” (as she sees it) to create her own governing fiefdom, as Cheney has done. It may also suggest that she, like Cheney, would be willing to assert whatever privilege she can get her hands on to ward off public scrutiny.Regardless of which candidate, and which vision of the vice president’s role, prevails, it should give us pause that both vice presidential candidates have some pretty strange ideas about the history and structure of the office to which they aspire. Josh Chafetz is Assistant Professor of Law at Cornell Law School and the author of Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale Univ. Press, 2007).
By Josh Chafetz
20 comments
A clear and informative article--however, the mangling you do in presenting Biden and Palin's responses as equivalents is quite unfair. There is a qualitative difference in Sen. Biden's understanding and intentions in regard to the vice presidency--this, based on the facts you present. And based on your presentations as well, Gov. Palin's understanding is vague, superficial and childish at best--and her embrace of "flexibility" in the 2 branches of government a la Dick Cheney, dangerous. Why are you afraid to observe that, instead painting them with the same broad brush?
- Jane B
October 4, 2008 at 3:24am
"It may also suggest that she, like Cheney, would be willing to assert whatever privilege she can get her hands on to ward off public scrutiny." The woman hasn't even assumed the duties of Vice President and already Governor Palin is being given sinister motives for wanting to exercise the Constiution authority given to the Vice President by presiding over the Senate. PDS appears to afflicted the good professor. Geesh.
-
October 4, 2008 at 5:56am
-- But if Palin's answer betrayed a lack of knowledge of constitutional structure, Biden's was not a whole lot better. -- Actually, his knowledge is considerably better ... and despite your parsing of words in an attempt to make him seem ignorant of the constitutional role of VP, he still got the basic tenants of the position correct. -- Skipping over Biden's assertion that Cheney "has been the most dangerous vice president we've had probably in American history" (a bit of hyperbole is forgivable in the midst of a campaign, but is Cheney really worse than, say, the dueling and possibly treasonous Burr?) -- Not only is this not "skipping over his assertion, but only time will tell whether Cheney is, in fact, the most dangerous VP in history. --he continued by saying that "Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch." It is true that Article I mentions the vice president, but Article I is devoted entirely to the legislative branch. In fact, let's look at what Article I, section 3, clause 4 actually says: "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."-- If it is true that Article 1 describes the role of VP, then how did he "get this wrong"? Section 3, clause 4 resides within Article 1, does it not? Who cares if he didn't identify the entire crumb trail, his statement proves that he has actually read the document. --Biden, however, kept mangling away. -- Thanks for the hyperbole. --"The Constitution is explicit," he said. "The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote." Well, not exactly. The vice president is always the president of the Senate--indeed, since the vice president was expected to have so little an executive role, presiding over the Senate was meant to be his day job. As Roger Sherman put it at the Philadelphia Convention, "If the vice president were not to be President of the Senate, he would be without employment." Biden was therefore right to note that the vice president's Senate vote is limited to breaking ties, but wrong to think that this constituted the entirety of his responsibilities with respect to Congress.-- This statement makes no sense given the thrust of your argument. Biden stated that the VPs constitutional authority to affect policy only comes in to play when there is a tie vote. At what point did he say that the VP "was not the president of the Senate"? By parsing the word "only", you are creating an argument out of a statement Biden did not make in order to make him look "uninformed" or "confused". You can also argue that his use of the word "only" reflects his understanding that "the founders didn't think that the executive role of the vice president would be flexible; they thought it would be almost non-existent." Your argument, my friends, reads to me as bias and nothing more. Palin's answer simply displayed a genuinely dangerous lack of knowledge. While Biden may not have keyed in on the "exact" words that would have satisfied your keen sense of "fact finding" and "spin reduction", it is obvious he still understands the role of the VP. And, that is something you cannot argue. No matter how you parse the word "only".
- Paul
October 4, 2008 at 8:33am
Most of the Founding Fathers were involved with the formulation and ratification of the 12th Amendment.
- Mainer1776
October 4, 2008 at 9:01am
Your assertion that perhaps Aaron Burr was a worse president then Cheney can't be true...the treason of Burr did not affect the nation as a whole on the scale that the big Dick's treasonous behavior has... Cheney's treasonous acts have set the US on a course to collapse both financially and politically, and made America a rogue, outcast nation in the world. Our child and our children's children will be paying for it for decades... Aaron Burr was a piker compared to Cheney...WORST VP EVER!!!
- wagonjak
October 4, 2008 at 12:05pm
Professor, I wouldn't call Biden's view of the office strange since it is clearly in line with how most Americans see the office and role of VP. He was neither asked nor given the opportunity to provide a run down of the constitutional history of the vice presidency. As a practical matter, the question was really about Dick Cheney and only about Dick Cheney. To that end, Palin was pro-Cheney's view and Biden was anti-Cheney's view. This hasn't gotten enough attention, I agree, but only because it is further evidence that this lady isn't qualified, intellectual, to run a hot dog stand let alone a state, and forget about the freakin' free world.
- mbholman
October 4, 2008 at 2:17pm
You're giving Sarah Palin too much credit. I believe she just didn't understand the implication of the question. Because she just didn't know about the controversy surrounding Cheney's assertions about the powers of the vice presidency. By "flexibility," she was probably referring to the limited specific duties of the Vice President listed in the Constitution, enabling the President to use his Vice President in whatever additional capacity he desires. That's all.
- sinz52
October 4, 2008 at 3:28pm
Come on, Palin wasn't supportive of Cheney's assertion, she has no idea what the question entailed so thought it was safe to go along with her fellow Republican. If she becomes VP, she will reprise Quayles role as a do nothing, know nothing, but due to McCain's increasing decrepitude, just might become President, in which case, God help us all.
- blackton
October 4, 2008 at 5:57pm
Why then would not Mr. Cheney preside over the senate as a matter of daily duty and rather than the foggable Mr. Reid giving priority opinions about insurance companies set to go bankrupt, Mr. Cheney had the first words of definition for their daily steps and missteps?
- Herman Richard Matern
October 4, 2008 at 6:12pm
Could the vice president assert more authority as presiding officer of the senate by refusing to recognize senators and by making parliamentary rulings that advantaged one party over the other? Back when judicial nominations were a front burner issues, there was mention of what some Republicans called the "nuclear option." That would have involved a ruling by Cheney is his role as President of the Senate that only 51 votes were required to close debate -- in other words a ruling that the filibuster provisions were not valid rules of the Senate, thus thwarting Dems who were trying to block Bush appointees. Of course members can "appeal the ruling of the chair" but the chair will be sustained based on a majority vote. If the Vice President can, in this fashion, eliminate the filibuster in the Senate, he or she becomes a considerably more powerful player in the legislative process.
- res2000
October 4, 2008 at 6:31pm
Good article. One thing I would like to see more discussion of is the VP's power as president of the Senate. I understand that they do not have any vote, normally. However, I also understand that they can wield the gavel any time they choose. 5 days a week, if they like. Wielding that gavel can give enormous power. They get to decide who gets to speak and when, have some control over how votes can take place and lots of other little parliamentary maneuvers. Lyndon Johnson, as Majority leader, was a master of this. Robert Caro's book "Master of the Senate" has a lot of detail about this. In 1961, VP LBJ tried to exercise his perogatives but his buddies told him, essentially, that they wouldn't love him anymore if he did. He didn't push it. Palin probably doesn't care if the senators don't love her. She could do an enormous amount of good wielding the gavel. I'd be interested in hearing your thoughts on this.
- John Henry
October 4, 2008 at 8:07pm
God, in this world of opinion and this season of diatribe, it is wonderful to have an informative article of substance. Good work, Josh
- rumford
October 4, 2008 at 8:20pm
I think that Biden's extemporaneous discussion was at worst ill-phrased, and not incorrect. It seemed clear in context that he was expressing his view that Article I makes clear that the Vice-President is an Executive Officer by giving him or her a vote only in the case of a tie. Perhaps we can have a discussion about how the Founders anticipated the Vice-President might execute the duties of President of the Senate, but historical practice has made clear that the role is virtually ceremonial except in the case of a tie. Interestingly, Biden suggested that he would draw on his legislative experience to be a liason to the Congress, which might cause him to try to resuscitate the notion of the President of the Senate, but he would do so only to pursue the policies of the Administration. In contrast to Governor Palin, who didn't seem to understand the topic of discussion, I think that Senator Biden was using half sentences and moving too quickly to clearly express his views. Worthy of criticism, perhaps, but of a far different order of magnitude.
- Jay
October 4, 2008 at 11:21pm
Remember, when commenting on how Sarah Palin would act in her role of Vice President, she merely stated that the role was created with flexibility. Governor Palin said she would do what Senator McCain assigned her to do.She did not bring up Cheyney's name, Biden did. So the question is, will Biden sit by and advise his ill prepared running mate all day, or will he (the one who brought up Cheyney's name) be the one saying one thing and doing another. Gee, I guess he does that now....
- Martha
October 5, 2008 at 1:45am
Mr. Chafetz, While it may be true that neither candidate demonstrated an absolute and firm grasp of the inherent powers associated with the role of a Vice-President. One has to ask themselves, would they rather have Palin who seemingly believes the Cheney template is desirable, or, would they prefer to have Biden who recognizes that the said template is fraught with unconstitutional danger? Admittedly, the mangling of an answer is one thing, however, the abuse power is an entirely different beast. It goes without saying (yet I say it anyway), that no elected official in a democracy, especially no official who straddles both the executive and legislative branches should be allowed to operate outside the constitutional parameters of the law of the land. In Cheney's case, the evidence since 2001 indicates that the absolute lack of Vice-Presidential accountability in both the Executive and Legislative spheres has irreparably damaged American interests, both domestic and foreign. So really the question should be, is a continuation of this pathology in the interests of the American people? If the answer is no - then the choice could not be clearer. Ideology and partisanship aside, no sane individual can believe Palin's tacit acceptance of the Cheney example as being worthy of replication could possibly see this as being in America's best interests? I mean, there must be a limit to the allowances of the absurdities that will be countered this silly season - doesn't there?
- BeerBellyBuddah
October 5, 2008 at 4:52am
RE: "is Cheney really worse than, say, the dueling and possibly treasonous Burr?" Answer: yes
- SJN
October 5, 2008 at 3:53pm
Good grief, Charlie Brown, consider the context and the contest... In the heat of a debate, and for the purpose of stating a clear position, both candidates were pretty straightforward and convincing, but the contest was not going to the one who could split hairs and quote the Constitution. While you have your professorat to worry about in terms of how they consider your performance, and how finely you can draw distinctions, the candidates have to appeal to a completely different audience and win an election. If one were to compare their task and yours, they won hands down, and you sound like a pendantic Cornell professor....
- PBK
October 5, 2008 at 4:12pm
First lets be clear- if the answers to debate questions were the premise in which we picked Presidents our pool would be from Jeopardy. It is very scary that a man who is a attorney and has a law degree, sits on judiciary and the chair of foreign relations misquotes Article One, and misstates the situation in Lebanon. If not answering a moderators questions was a disqualifier than we would have few candidates left. In fact, giving the moderator the authority to dictate the tone and the question is a weakness, and everyone knows it. Of course I am glad I am not waiting for my next meal at Katies or banking on talking to Joe about this at Home Depot. Remember 1988. Remember 2008. Truth is not Bidens strong suit, so he says whatever comes to his mind with conviction and sounds like a president. Maybe everybody has gotten conditioned to being lied to.
- Du Bois John
October 6, 2008 at 8:47am
@ John Henry, the VP is president pro tempore of the Senate, not president of the Senate. Professor Chafetz, it is certainly disingenuous to equate Biden's and Palin's positions vis-a-vis the duties of the vice president as enumerated in the Constitution. The Constitution is a living document; I'm sure I need not remind you of that. Thus Biden's reply reflects the duties and role of the VP as it pertians to today (absent Cheney's egregious abuses). Palin's reply shows a desire to mold the role to suit her ambition.
- No More McSame
October 6, 2008 at 10:36am
The comment on Burr is bizarre. He dueled once in a time when dueling was not uncommon. His alleged treason occured AFTER he was Vice President, not during. Cheney has been so much more dangerous by comparison.
- EQ Baldwin
October 7, 2008 at 1:37pm