Historical Manglings

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POLITICS OCTOBER 3, 2008

Historical Manglings

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

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posted in: politics, aaron burr, dick cheney, gwen ifill, joe biden, john adams, sarah palin, thomas jefferson, valerie plame, congress, senate

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