Is Dick Cheney Unconstitutional ?: The Case Against An Activist Vice-Presidencyby Doug Mataconis
In a provocatively titled law review article, Glenn Reynolds, who spends his time at the University of Tennessee College of Law when he isn’t blogging raises some very interesting questions about the Office of Vice-President and what it has become in modern times.
The article itself arises out of the controversy that erupted earlier this year when Vice-President Cheney’s office was refusing to comply with a request for documents from Congressman Henry Waxman and claimed that Cheney was, under the Constitution, not a part of the Executive Branch but rather a legislative official and thus not subject to Executive Branch disclosure laws. Cheney’s office later withdrew this argument, but as Reynolds argues, if Cheney’s inital argument is right, and even if it’s not, there are serious Constitutional and policy problems with the extent to which modern Vice-President’s have assumed powers once exclusively exercised by the President himself or his appointees.
As Reynolds notes, the idea that the Vice-President is a member of the Legislative Branch rather than the Executive Branch is not as insane as it sounds:
[T]he argument that the Vice President is a legislative official is not inherently absurd. The Constitution gives the Vice President no executive powers; the Vice President’s only duties are to preside over the Senate and to become President if the serving President dies or leaves office. Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line. The Vice President really is not an executive official. He or she executes no laws—and is not part of the President’s administration the way that other officials are. The Vice President can’t be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment.
That last item — the question of who can remove the Vice-President from office and how he can be removed — is important because it goes to the question of whether the delegation of Presidential powers to the Vice-President is Constitutional to begin with.
Back in 1986, the Supreme Court was asked to rule on the Constitutionality of the Gramm-Rudman-Hollings Act, one of the many 1980s era attempts to control deficit spending. Under Gramm-Rudman, the Comptroller General, the head of the Government Accountability Office, which is a part of the Legislative Branch, was given the authority to make across the board spending cuts in the event that Congress and the President were unable to agree on a budget that came within certain spending guidelines. The Supreme Court struck down the law, relying principally on the fact that the law granted Executive Branch authority to someone who is clearly under the control of Congress:
The critical factor lies in the provisions of the statute defining the Comptroller General’s office relating to removability. Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, and confirmed by the Senate, he is removable only at the initiative of Congress
Thus, the argument goes, just as it was unconstitutional for Gramm-Rudman to devise Executive Branch authority in an official who is solely under the control of Congress, granting Executive Branch authority to the Vice-President, who cannot be removed from office by any means other than impeachment, is similarly unconstitutional.
But, of course, the Supreme Court is unlikely to ever rule on this issue, as Reynolds points out. For one thing, it’s hard to conceive of a case that would be able to make it’s way through the Federal Courts without being tossed out for lack of standing. For another, the Court is likely to defer ruling on such a direct confrontation between the other two branches of government on the ground that it constitutes a “political question.”
That doesn’t mean that it’s a moot point, though, or that Vice-President Cheney’s unprecedented involvement in Executive Branch decision making should not be questioned. As Reynolds points out, it’s a pretty bad idea from a policy perspective:
[T]he Vice President is the only person nationally elected to serve if the President is unable to govern, and the Vice President’s involvement, a la Cheney, in day-to-day policy activities sacrifices the distance that earlier Vice Presidents possessed; those unhappy with President Bush’s Iraq policies, for example, can criticize Cheney in a way that critics of Carter’s Iran policies could not criticize Mondale. In the event that policies in which the Vice President is implicated go sufficiently awry to end a Presidency, the Vice President will not be able to appear as a fresh start and may be liable to impeachment or forced resignation as well. In such cases, this risks a move to someone not nationally elected—the Speaker of the House or the president pro tempore of the Senate—and very serious consequences for a nation that would be, in those circumstances, already divided and vulnerable.
Which is exactly what we don’t need. It’s time to bring back the days of the Do-Nothing Vice-President.