A Constitutional Anomaly: Safeguarding Confidential National Security Information within the Enigma That Is the American Vice Presidency

By Garvey, Todd | The William and Mary Bill of Rights Journal, December 2008 | Go to article overview

A Constitutional Anomaly: Safeguarding Confidential National Security Information within the Enigma That Is the American Vice Presidency


Garvey, Todd, The William and Mary Bill of Rights Journal


INTRODUCTION

The American vice presidency has undergone a dramatic transformation since its inception at the Constitutional Convention in 1787. From the nation's most qualified and influential citizens, to obscure and unimpressive unknowns, different periods of our history have seen occupants of differing quality, skill, character, and reputation grace the Office ofthe Vice President.1 Throughout this evolution, two general themes can be observed. First, with the exception ofthe first two occupants, the Vice President has progressed from an ineffective, mostly symbolic representative, into a domestic and foreign policy political power.2 Second, accompanying this increase in political power and prestige has been an increase in the Vice President's role within the executive branch of government and a decrease in the office's daily legislative duties.3

The office's earliest occupants were less than pleased with the power and influence they wielded as the President's lieutenant. John Adams believed the vice presidency to be "the most insignificant office that ever the invention of man contrived or his imagination conceived."4 Teddy Roosevelt declared, "I would a great deal rather be anything, say professor of history, than Vice President."5 John Nance Garner, Vice President under Franklin Roosevelt, likened the office's importance to "a pitcher of warm piss," lamenting that his acceptance of the office was the "worst damn fool mistake I ever made."6 After Calvin Coolidge reluctantly accepted his party's nomination,7 he received a telegram from former Vice President Thomas Marshall expressing his "sincere sympathy."8

Historically speaking, Vice Presidents had good reason to be discouraged. Initially, the office exercised only those few powers assigned and enumerated within the Constitution.9 How then, did an office that inspired such discontent, become the center of power and executive influence it is today? One would imagine that modern Vice Presidents would not agree with the sentiments of many of their predecessors. Indeed, no one today would doubt the power wielded by the current Vice President. 10

Somewhere along the evolutionary track ofthe American vice presidency, its constitutional positioning was lost. The Founding Fathers considered the Vice President much more a legislative officer than an executive official.11 Article I assigns the Vice President its only originally enumerated power: the authority to preside over the Senate with the ability to vote in the case of a tie. 12 Not a single executive power was granted to the Vice President by the Constitution. Under Article ?, the full executive power is vested in the President alone.13

The modem Office ofthe Vice President began its shift towards the executive only within the last sixty years, as modern Presidents incorporated their running mates into their administrations through executive assignments, delegation of executive authority, and statutory responsibilities.14 There is a correlation between this movement towards the executive branch and the growing prestige and power of the office.15 Through these decades of change, time slowly blurred our conception of the Vice President, to the point where the office itself would be unrecognizable to its creators.16 This so-called "constitutional hybrid" has, understandably, led to gross misconceptions as to the role ofthe Vice President as a constitutional officer, confusion as to the limits ofthe Vice President's powers and duties, and even confusion as to the office's branch membership.17 Confusion inevitably leads to disagreement and debate, especially when interpretation of the Constitution lies at the center of the controversy. One of many interpretive clashes concerning the identity of the Vice President came to a head in the summer of 2007 over the classification and declassification of documents within the Office of the Vice President.18

In June of 2007, the Office of the Vice President (OVP), as it has since 2003, refused to comply with Executive Order 1 3,292 (the Order). …

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