More on Imperial Vice Presidents

I want to followup on my post below re: Olivia's "Imperial Vice Presidency". Some of this will be repetitious, but I hope its valuable nonetheless. Let me start by asking the question: Is VP Cheney an Officer of the President, or an Officer of Congress?

According to the Constitution, Article I, Sec. 3, the Vice President of the US is an officer of the US Senate. That is why Vice Presidential powers are discussed in, Art. I and not Art. II for example. Here are the relevant portions:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. [...] The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. (US Const. Art I, Sec. 3)

To recap, the VP is an officer of Congress or the "President of the Senate". And though the VP is an officer which the Senate does NOT choose (because the electoral college DOES choose) the VP is a congressional officer nonetheless. Let's move on to Art. II to see if this VP is some sort of hybrid officer... part legislative/part executive. Does the VP have executive powers?

The executive Power shall be vested in a President of the United States of America. (US Const., Art. II, Sec. 1, Clause 1)

Thats a period on the end of that sentence. Executive power is with the President PERIOD. No ifs, ands or buts. No power sharing arrangements were contemplated by the Constitution, power checking... yes. Power sharing... no.

There are NO other enumerated powers for the VP in the Constitution. He's a secretary to the Congress, and a successor to the President. He breaks tie votes. Nothing more.

But could he be an officer of the President too? Just like Libby received a commission from the Executive and was employed by the VP? I say no. And S.M. Olivia says no too.

Although the office of Vice President is created in Article II of the Constitution, it is granted no authority under that article. The Vice President has no executive power unless and until there is a vacancy in the office of President. It is Article I, which designates the Vice President as president of the Senate, that breathes constitutional life into the vice-presidency, as it were. The evolution of the Constitution's text demonstrates that the convention always viewed the Vice President as a presiding officer of the Senate first, and as a temporary presidential successor second. This reasoning is confirmed by the third section of Article II, which states that the President "shall commission all Officers of the United States." This refers to agents of the executive branch, including cabinet members and even EOP staff. The Vice President, in contrast, does not receive a commission from the President. He is chosen by the Electoral College, subject to the ratification of Congress.

Olivia only describes part of the picture. The founders were deeply troubled by the devolution of the Roman republic into an Empire (one of two motivating fears: the fates of Rome and Athens were two sides of the same coin). And this fear of Empire was one of the main reasons the founders placed the successor to the executive within the legislative branch. They knew, as any student of history knows, a successor who shares the reins of executive power, that is the supreme command of the Armed forces, is a successor who is a danger to the republic. The only obstacle in his way to declaring himself Caesar is the life of the President. Some may say I'm stretching here. But a presidentially empowered VP is a legislator and executor. He unites two branches under one office. He breaks the system of checks of balances in the performance of his own privilege. But for the life of the President, he is as close to Caesar as you can get.

Alexander Hamilton explains the role of the VP in Federalist 68. He describes essentially a back-up President who serves the Senate unless the President is removed from office. He gives two reasons for even having a VP:

One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other.

So, reason 1) to make sure the Senate can break a tie and 2) to have an already Constitutionally confirmed back-up in case the Prez kicks the bucket. Nothing there about sharing executive power. He also adds this telling allusion:

It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President.

At the time he wrote this, Lt. Gov's in NY had no executive authority at all. The analogy makes it clear that at least Hamilton thought the VP was a secretary of the Senate, unless and until the President is removed. Better to have a would-be Caesar under the thumb of the "elite" branch of the legislature than to give him a taste of the power that could be his.

So how did we get here? How did we allow the VP to slowly become an agent of Imperial power? Olivia traces the rather long history quite well, and I commend it to your attention. But let me try to make it more concise:

Three postwar trends signaled the unconstitutional shift of the office of Vice President from the legislative to the executive branch. First, the selection of vice presidential candidates is now made by presidential nominees alone rather than by party conventions. [...] The second trend is that since 1960, vice presidents have commonly run for President themselves. Historically this was not the case. [...] The final postwar trend was discussed above, the expansion of the EOP. With the growth of presidential staff came the growth of vice-presidential staff.

The biggest problem I see with the current setup is that VP today acts with apparent executive authority. The VP uses "executive privilege" to shield conversations from Congress, but by the Constitution, that VP is an officer of Congress! How can there be privilege against revealing something to yourself?

And this brings me to MaskedMarauder's diary. The 11/8 press gaggle may well go down in history as the end of the rise of the Imperial Vice-Presidency. MM relates it as only a curious note. But in the context of a rising menance to the Constitution, it seems like the White House may be signaling that not only will the President distance "himself" from the person of the VP, but also that the apparent executive authority of the VP will be stripped.

The only way for the President to do this is to slowly divest whatever apparent authority the VP has assumed. That means, quite literally, changing the locks on the doors, removing old passwords, taking him off the calendar. And if that is going on, that is a very dangerous problem for the entire country.

Who knows how far this Imperial VP has reached into the bowels of presidential power? How tightly are his tentacles entwined with the privilege of presidential authority? Will removing them cause the republic irreparable harm?

I hope not. But it is certainly time for Congress, and time for those who wish to uphold our Constitution, to oversee this operation in order to avoid a hemorrhage we simply can't afford right now. Cutting off the flow of funds which are the lifeblood of the VP's operations will send a loud message that America won't tolerate Imperial power. Just do it.