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Is Governor Sarah Palin Right That the Vice President Has the "Flexibility" to Play a Larger Role in the Legislative Branch? Though the Question Is Complex, Palin is Likely In Error


Thursday, October. 09, 2008

One flashpoint in the Palin/Biden debate last week concerned Governor Palin's cryptic reference to the "flexibility" of the Vice Presidency, and the possibility that the Vice President could assume a larger role within the Legislative Branch. That remark prompted Senator Biden to respond that the Vice President is an Executive officer whose legislative role is to break tie votes in the Senate and nothing else.

In this column, I will take up the question of where the Vice President is properly located in the three-branch structure. While the answer is not simple, my sense is that Senator Biden was largely correct, and that, to the extent that Governor Palin meant anything significant when she claimed the Vice President has the "flexibility" to operate in the Legislative Branch, she is wrong.

The Supreme Court's Recent Intimations Regarding the Vice President's Role

Let's start with how the judiciary seems to treat the Vice Presidency. In the Cheney v. District Court case a few years ago - the case in which plaintiffs sought access to information about President Bush's energy policy task force headed by Vice President Cheney -- the Supreme Court seemed to treat the Vice Presidency as a part of the Executive Branch for purposes of the assertion of Executive Privilege.

For instance, the Cheney Court repeatedly and reflexively lumped the Vice Presidency together with the Presidency, and spoke as if executive privilege concepts necessarily play out identically for both offices. For example, the Court stated that "[w]ere the Vice President not a party in this case, the argument that the Court of Appeals [erred in allowing access] might present different considerations." In a similar vein, the Court remarked in closing that there are "special considerations applicable to the President and Vice President." And in yet another passage, the Court lumped the offices of the President and Vice President together as being of particularly high "visibility."

But was the Court's instinct to treat the Vice President as a member of the executive team (for executive privilege purposes) correct? A good answer to this question is somewhat complex.

The Constitutional Text and Founding History Regarding the Vice President's Role

The text of the original Constitution did not formally give the vice president any executive responsibilities. The Constitution of 1787 specified only two real jobs for vice presidents: One is to wait around in case the president is unable to discharge his duties. The other is to preside over the Senate in the meantime. Neither one of these functions seems quintessentially executive. Indeed, the function of presiding over the Senate--and casting its tie-breaking vote-seems, as Thomas Jefferson pointed out, downright legislative. It is worth noting here as well that the Constitution's text does not give the president the power to remove a vice president - a choice which may be seen as significant because the constitutional power to appoint cabinet members and other executive officers has been construed to carry with it a companion presidential power to remove such persons.

If we move from constitutional text to founding history, the question whether the vice president should be considered a high-level executive insider for executive privilege purposes gets even muddier. The primary reason for this lack of clarity is the well-established (albeit little known) fact that both the Framers and later generations of Americans gave rather little thought to the vice presidency and its role in executive administration.

The very idea of a vice presidency was dreamed up in the closing days of the Philadelphia Convention of 1787, and its chief value was as one cog in an intricate electoral college contraption regulating presidential elections. Delegates worried that after George Washington left the political scene, each state might simply cast all its electoral votes for its own favorite son. In turn, this scattering of electoral votes would deny any one candidate a majority and thus throw every presidential election into Congress, in which case the executive might become overly dependent on the legislature.

The Philadelphia delegates' ingenious solution was to require each state to vote for two persons--one of whom must be an out-of-stater--with the top vote-getter winning the presidency. This rule would give a boost to national candidates--respected statesmen who might be everyone's second choice after the local favorite son. Meanwhile, to discourage states from gaming the system by wasting their second (out-of-state) vote--thereby cycling back to a fractured world of favorite sons--the Framers created an office called the vice presidency, and provided that this office would go to the runner-up in the presidential race. For this reason, states would have strong incentives to take their second (out-of-state) vote seriously.

In light of this history, it is hardly surprising that the Founders' Constitution neglected to specify certain critical details concerning the Vice Presidency and its relationship to the presidency itself and the rest of the executive branch.

The Twelfth Amendment, Too, Failed to Resolve the Question of the Vice President's Role

Unfortunately for our purposes, the circumstances culminating in the passage of the Twelfth Amendment in 1804 only serve to underscore the inherent ambiguity of the Vice President as a member of the president's team at the founding and in the early Republic.

To understand the Twelfth Amendment, one must begin by recognizing that the original Constitution did not permit electors to specify their votes for the two offices of president and vice president separately--instead, each elector simply cast two votes. Of course, electoral collegians, and the states and parties whom they represented, did have strong views about which of the two persons voted for should occupy the presidency. But electors who wanted to elect a president and vice president of the same party were confronted with a dilemma: If all of the party's electors named the same two individuals on the ballot, and if that party constituted a majority of electors at the electoral college, then a tie would result between the two top vote-getters. And under the terms of Article II of the Constitution, the election would then be resolved by the House of Representatives, where the party risked "inversion" of the two candidates. That is, the House might vault a party's vice presidential candidate above the party's presidential candidate. This was especially possible because the party controlling the House was not necessarily going to be the same party that generated the top two presidential election vote-getters.

To avoid such possible inversion, early party leaders began "sloughing" votes off the party's vice presidential choice. Party bigwigs would convince a few electors from a few states to delete the party's preferred vice presidential candidate from the two-person ballots cast at the electoral college, naming someone else instead. By this device, a tie between the majority party's two top choices could be avoided. But this technique effectively created a window that allowed the minority party to elect its most popular, or presidential, candidate to the vice presidency by coming in second, ahead of the majority party's vice presidential choice.

This happened, in fact, in 1796. John Adams--a Federalist--finished first. But because Federalist electors sloughed off some votes for their preferred vice presidential choice, Thomas Pinckney (in order to avoid a Pinckney-Adams tie), Thomas Jefferson, a Republican, was able to finish second, ahead of Pinckney, and become Adams's vice president.

Significantly, and surprisingly from our modern perspective, the outcome of the 1796 election--where the vice president was not a member of the president's executive team, but rather a member of the opposition party--did not stir up any real movement to amend the selection method set forth in Article II. That is because the leaders at the time did not see the original Constitution's selection method's bias in favor of a "split party" White House as a major drawback. Indeed, some who would later unsuccessfully oppose the Twelfth Amendment saw a great deal of virtue in having an intrabranch check within the White House. As Representative James Hillhouse of Connecticut would later urge, the president and vice president should be of different parties "to check and preserve in temper the over-heated zeal of party .... If we cannot destroy party, we ought to place every check upon it."

Real interest in constitutional reform would be stirred only after the election of 1800. In that year, the sloughing-off device failed to work, and a tie between the top two Republican candidates, Jefferson and Aaron Burr, resulted in the election being thrown into the House. Federalists, however, controlled the House, and threatened to make Burr president instead of Jefferson--largely to spite Jefferson--even though no Republican wanted Burr to be anything other than vice president. Thus, the intractable "inversion" problem--and not the possibility or likelihood of the president and vice president being of opposite teams--is what led to the Twelfth Amendment, the terms of which now require electors to designate separately votes for the president and the vice president.

None of this is to say, however, that the Framers of the Twelfth Amendment did not recognize that it would enable one party--one team, if you will--to more easily capture both the presidency and the vice presidency. Clearly, they did. But recognizing the inevitable and being happy about it are entirely different things. So even after the Twelfth Amendment, the extent to which vice presidents should be seen as executive agents of the president would seem quite open.

How the Twenty-Fifth Amendment Finally Cemented the Executive Character of the Vice President's Role

The Twenty-Fifth Amendment, proposed and ratified after John Kennedy's assassination, fills some of the gaps left open by the Founders. For starters, the amendment makes clear that when the president dies, resigns, or is removed from office, then--and only then--the vice president does in fact "become President." Otherwise, if the president is merely disabled (perhaps only temporarily) from exercising the powers and duties of his office, then the vice president may step in and "assume the powers and duties of the office as Acting President" without prejudice to the president's ability to resume his post if and when he has recovered from his disability. (That, by the way, is exactly what Dick Cheney did a few years back when George Bush was under anesthesia.)

The amendment also provides a clearer framework for determining whether the president is in fact disabled, and for how long. This framework specifies the precise roles of the president, the vice president, the cabinet, and the Congress in resolving questions about possible disability. In some ways, the Vice President is treated in this process as the head of the cabinet for assessing whether the president is disabled.

Yet another important provision of the amendment allows a president, with congressional approval, to fill a Vice Presidential vacancy. Through this amendment, Richard Nixon named Gerald Ford to the vice presidency when Spiro Agnew left office in 1973; and Ford, in turn, appointed Nelson Rockefeller to the vice presidency in 1974 when Ford himself became president upon Nixon's resignation.

Note that the Constitution vests the power to choose true Congressional officers and leaders in only the House and the Senate; Article I does not involve the President in filling vacancies of House or Senate members or leaders.

All these changes brought by the Twenty-Fifth Amendment might be seen to have important consequences for the issue of executive privilege. By formalizing succession, by making the vice president part of (and indeed a leader of) the cabinet for purposes of determining presidential disability, and by making clear that the president gets to choose persons to fill vice presidential vacancies--making succession apostolic, if you will--the amendment strongly suggests that, today at least, the vice president is a full member of the president's executive team. This amendment, much more so than the Twelfth, then, formally concretizes an evolving importance of the Vice Presidency to the executive branch.

For these reasons, Governor Palin's suggestion that, as vice president, she might have the power to expand her role within the legislative branch -- going beyond the Vice President's constitutional role of casting the tie-breaking Senate vote - runs against the tide of modern constitutional text and history.

Vikram David Amar is the Associate Dean for Academic Affairs and a Professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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