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IS DICK CHENEY UNCONSTITUTIONAL?[dagger]

Article excerpt

The Vice Presidency "isn't worth a pitcher of warm spit."

-Vice President John Nance Garner1

Twenty years ago I wouldn't have advised my worst enemy to take the Vice-Presidency. It was God's way of punishing bad campaigners, a sort of political purgatory for the also-rans. Now you'd be crazy not to take the job.

-Aide to President Ronald Reagan2

Many a true word is spoken in jest, we are told. More surprisingly, sometimes the truth even emerges, unsought, from the mouths of politicians and their flacks. This may be the case with regard to recent claims by Vice President Dick Cheney's office that he is, properly speaking, a "legislative officer" rather than a member of the executive branch.3 The consequences of this argument, however, may prove unpalatable to the Bush Administration on closer examination. Indeed, an activist vice presidency, in the Cheney model, might be considered unconstitutional if the Vice President is regarded as a legislative official. And, regardless of whether that characterization controls, there may be prudential reasons for keeping the Vice President at a greater remove from executive affairs than has recently been the case.

The Cheney-as-legislator kerfuffle appeared as part of an interbranch struggle over the declassification of documents. Representative Henry Waxman argued that Cheney was avoiding legally required scrutiny by the National Archives and Records Administration, while Cheney's office argued that Cheney, as President of the Senate, was not part of the executive branch and hence not subject to such regulation.4

The political backlash engendered by this position5 led Cheney's office to withdraw to the more defensible position that the office of the Vice President, like the office of the President, was not an "agency" for purposes of the statute. Nevertheless, Cheney's spokesmen did not repudiate the earlier position.6 And, in fact, I believe that the positioning of the vice presidency within the legislative branch-or, at any rate, outside the executive-may be appropriate. Such a reading, however, would render Cheney's role7 within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.

Despite the unfriendly political response, the 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 Senate8 and to become President if the serving President dies or leaves office.9 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.10 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 cannot be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment. (In various separation of powers cases, as noted below, the Supreme Court has placed a lot of weight on this who-can-fire-you test.)

Traditionally, Vice Presidents have not done much, which is why the position was famously characterized by Vice President John Nance Garner as "[not] worth a pitcher of warm spit."11 That changed when Jimmy Carter gave Fritz Mondale an unusual degree of responsibility,12 a move replicated in subsequent administrations, particularly under Clinton/Gore and Bush/Cheney.13

The expansion of vice presidential power, however, obscures a key point. Whatever executive power a Vice President exercises is exercised because it is delegated by the President, not because the Vice President possesses any executive power already. The Vesting Clause of Article II vests all the executive power in the President, with no residuum left over for anyone else. …