IS DICK CHENEY UNCONSTITUTIONAL?[dagger]

By Reynolds, Glenn Harlan | Northwestern University Law Review, Summer 2008 | Go to article overview

IS DICK CHENEY UNCONSTITUTIONAL?[dagger]


Reynolds, Glenn Harlan, Northwestern University Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

IS DICK CHENEY UNCONSTITUTIONAL?[dagger]
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.