Monday, October 27, 2008

Where's the Veep?

Glenn Reynolds has a short Op-Ed in today's NY Times arguing that Sarah Palin may have gotten it right when she described an active role for the Vice President in Senate affairs. Palin, in answering a third grader's question about what the VP does, recently said the VP is ". . . in charge of the United States Senate, so if they want to they can really get in there with the senators and make a lot of good policy changes . . . ." (The ellipses do not do any damage to Palin's full statement, available in text here and for viewing below.)



The Constitution provides that "[t]he Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." By tradition, the Vice President is not "in charge of the" Senate, as Palin put it, but the text of the Constitution does not literally rule out the sort of active legislative role Palin describes. Indeed, Reynolds says, precisely because the Vice President is a legislative official, the assumption of executive powers by our two most recent Vice Presidents has been a violation of separation of powers.

Perhaps, but let's put that one aside for the moment. Reynolds also says that the VP's most important job is to be ready as a "spare President." He offers the following simile: "Using the spare president in the ordinary course of business is as unwise as driving on one’s spare tire. Spares should be kept pristine, for when they are really needed."

Need I point out the obvious? Using a spare tire wears out the tread so that it will not function as well when called into active duty. By contrast, a Vice President who--like every VP since Mondale--plays an active role in the administration, gains valuable experience that will enable him or her to do a better job as President if needed.

Okay, so Reynolds chose a poor simile, but he also set forth a brief substantive argument. He says: "If the president resigns or is removed from office, a vice president who has been involved in the activities of the executive branch is also likely to be at risk for impeachment. Just as important, a vice president who is enmeshed in the affairs of the president cannot offer a fresh start for the executive branch."

But that's highly misleading. In the course of American history, exactly one President (Nixon) resigned, and no President has been removed by the Senate after impeachment by the House. By contrast, eight Presidents have died in office. If history is our guide, there is thus a much greater chance that a Vice President would become President after the President's death than following resignation or removal. And in those circumstances, interests in stability and continuity counsel very much against a "fresh start."

Moreover, even in the unlikely event of resignation or removal, Reynolds is wrong. Had Bill Clinton been removed for his cover-up of the Lewinsky affair, Al Gore would have been untainted by that scandal, despite Gore's active role in the executive branch. More generally, the lesson of the Andrew Johnson impeachment is that Presidents should only be removed for actual wrongdoing, not because of policy disagreements. Following a President's removal, we want policy continuity. Otherwise, Congress will have an incentive to remove Presidents based on mere policy disagreement.

So, what about the broader argument that the VP can't take part in the executive because to do so would violate the separation of powers? So long as the VP's role in the Senate is just ceremonial and tie-breaking, this seems pretty clearly wrong too. Presiding over, in the sense of formally chairing but not taking an active role in, the Senate, no more makes the VP a legislative official than the Chief Justice presiding over a Presidential impeachment trial makes the Chief Justice a legislative official. And while the VP's power to break ties in the Senate is a legislative function, so is the President's power to sign or veto bills. Yet no one would suggest that the Constitution itself is somehow unconstitutional for mixing powers in this way.

In the end, then, Reynolds has only an inapt simile, a historically imbalanced prescription, and a formalistic notion of separation of powers going for him. But he did manage to write an Op-Ed that purported to make Sarah Palin look good, to make Joe Biden look bad, and to distract people from the fact that the most likely mid-term route to the Presidency of a sitting VP would be via the death of the President.

Posted by Mike Dorf

20 comments:

Jamison Colburn said...

I have to confess that I find this whole thing incredibly depressing. Talk about an utter and complete twist of principle here. Conservatives--ever the advocates of making good on the actual promises the founders established in the Constitution, not our present-day interpretations of those promises--now seem to have thrown the "original meaning" of the Presiding Clause over the side. For their part, "liberals" like Chris Matthews all of a sudden want to take a militantly textualist view of this highly structural relationship just to make the point that Palin is some kind of moron. Then, round two of this is whole thing is for Insta-pundits like Reynolds to get their mugs in the NYTimes putting out the contrarian view that Palin might not have been so wrong after all -- just to be contrarian (on his blog, he originally seemed convinced of the comments' overall dimness). This, I can only surmise, is because Palin's account of the VP comes directly from the Neocons that gave you Dick Cheney who have probably concluded that, should McCain win now (against all odds), it will only be in some "narrow margin" scenario (which may or may not include a partisan judicial disaster like 2000 again) in which the Democratic majority in Congress grows. This, of course, makes Palin's "supervision" of the Senate instrumentally crucial. And it also makes this whole conversation utterly and completely vile.

egarber said...

This seems weird to me. I read Cheney's stance as an enlargement of executive power -- meaning that the VP's traditional powers are compounded with *additional* authority over Senate proceedings. And I doubt Palin would think she'd be devoid of any executive authority as VP.

So I'm not really sure this guy is helping either side. .

Stephen Griffin said...

Nice post. I posted some evidence on Balkinization that back in the 1950s some did assume the VP was part of the legislative branch. Letting the VP attend meetings of the National Security Council was considered novel, "executive." But clearly, scholars of the VP would tell you functionally, times have changed.

Steven said...

More generally, the lesson of the Andrew Johnson impeachment is that Presidents should only be removed for actual wrongdoing, not because of policy disagreements.

That is not at all the lesson to draw from the impeachment, trial, and acquittal of the lamentable Andrew Johnson.

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