The Imperial Vice Presidency
The indictment of Lewis “Scooter” Libby has refocused attention on the role of Vice President Cheney in the administration's war-making activities. Cheney has been called the most powerful Vice President in history, with Libby formerly being the most powerful vice-presidential aide in history. That such statements are made and accepted as true indicate a disturbing new mutation of the American constitutional system: the Imperial Vice Presidency.
The Constitution created three branches of government—the legislature, the executive, and the judiciary. Since 1789, however, two more branches have been grafted on as a sort of constitutional exoskeleton: the regulatory agencies and the presidential staff. The former combines legislative, executive, and judicial powers in unelected bodies (i.e., the Federal Trade Commission) and removes most constitutional checks on government power. The latter, presidential staff, marks a turn away from the limited executive envisioned by the framers, and has morphed the presidency into a contemporary monarchy.
In 1939, Congress created the Executive Office of the President (EOP). The original concept of the EOP was to consolidate the president's administrative support operations—speech-writing, correspondence, etc.—while not displacing the policymaking roles of Congress and the cabinet departments. Over the next several decades, however, the EOP grew in size and complexity. Presidents started naming White House chiefs of staff and other “assistants to the president” to function as de facto cabinet officers who would not be subject to Senate confirmation or direct congressional oversight. Congress compounded the situation by subsequently creating policy-making divisions within the EOP, such as the National Security Council and the Office of National Drug Control Policy.
In the Bush administration, White House deputy chief of staff Karl Rove serves as the unofficial (and unelected) prime minister. He coordinates both politics—previously a role reserved for the political parties' national committees—and policy. Rove is Lord North to Bush's George the Third. This is why the White House dodged a bullet when the Justice Department's special counsel, Patrick Fitzgerald, did not indict Rove in connection with the CIA leak investigation. Which brings me back to the person that Fitzgerald did indict, Scooter Libby.
Libby is believed to be the first man to have held three separate titles within the EOP: assistant to the President, chief of staff to the Vice President, and national security adviser to the Vice President. In these positions, Libby was an integral player in the administration's planning and execution of the Iraq invasion. If Rove is the unofficial prime minister, Cheney is the unofficial First Lord of the Admiralty. President Bush has granted his Vice President unprecedented influence and control over foreign and military policy. Thus, as Cheney's top aide, Libby arguably held greater political power than the secretaries of state and defense, both statutory offices subject to direct congressional oversight.
There has been substantial criticism of Cheney's role in the administration, even from nominal Bush supporters. Judicial Watch, a conservative group, unsuccessfully sued Cheney to gain access to documents produced by a White House energy task force that Cheney headed. The Vice President claimed “executive privilege” over the task force's internal documents. (A similar lawsuit was filed, but later abandoned, by the Government Accountability Office, the auditing department of Congress.)
More recently, Andrew Sullivan, a pro-war conservative critical of Cheney's advocacy of torture, has said Bush should “fire” Cheney and replace him with Secretary of State Condoleezza Rice. But this suggestion ignores the larger constitutional question: Should any Vice President have an active role in the executive branch's operations? I believe the answer is no, based on the text of the Constitution and the development of the vice-presidency during the constitutional convention.
In the first draft of the Constitution presented to the convention on 6 August 1787, the President of the United States was to be elected by Congress for a seven-year term. In the event of a vacancy, the president of the Senate—a senator chosen by that body—would exercise the powers of the presidency until a new president was elected, which presumably Congress could do without waiting until the expiration of the former president's term. On 4 September 1787, a committee of eleven reported changes that were incorporated into the final Constitution, including the Electoral College, a four-year presidential term, and the office of Vice President.
The shift from having the Senate choose its own president—who would double as a potential replacement President—was directly tied to the establishment of the Electoral College. The convention's concern with a Congress-elected president was that it would result in “cabal and corruption,” as George Mason put it. By having electors who were not federal officeholders meet separately in their state capitals on the same day, the framers thought the Electoral College would reduce the risk of a small cabal choosing the president.
The creation of the Electoral College provided a convenient mechanism to elect a Vice President along with a President. Alexander Hamilton explained in Federalist 68 that it also made sense to have a separately-elected Vice President as president of the Senate, with a tie-breaking vote, to “secure at all times the possibility of a definite resolution of the body.” A Senate-chosen presiding officer, in contrast, would be expected to refrain from participating in daily business, thus depriving his state of half its Senate representation.
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.
The Vice President, therefore, is a member of the legislative branch and not the executive. Until the post-World War II period, this would not have been a controversial proposition. Vice Presidents saw their day-to-day role as presiding over the Senate. Even in cases of presidential disability, such as Woodrow Wilson's stroke, the Vice President did not act as the second-in-command of the executive branch. (Of course, one problem was that Congress failed to establish a procedure for assessing presidential disability prior to the passage of the 25th Amendment in 1967.)
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. In the early republic, congressional caucuses chose party tickets. For example, in 1800, Aaron Burr was nominated for Vice President by the Republican caucus as a reward for securing the selection of Republican electors in New York, a critical state for presidential nominee Thomas Jefferson. Burr was not Jefferson's vice-presidential choice by any stretch of the imagination. Even after the caucuses gave way to nominating conventions, the presidential nominee was rarely in a position to unilaterally dictate the selection of a running mate. As late as 1956, the Democratic National Convention was able to directly pick its vice-presidential nominee.
Even when presidential nominees chose their running mates, historically they would have to consult with a body of party leaders. But this process eventually gave way to vice presidential “search committees” controlled directly by the presidential nominee and his immediate staff. And this process was turned further inward in 2000, when Republican nominee George Bush chose the head of his own selection committee—Cheney—to be his Vice President. Although a convention could technically refuse to nominate a president's choice (or the Electoral College could cast its ballots for a different person), there is in reality no meaningful check against presidents choosing their own potential successors.
The second trend is that since 1960, vice presidents have commonly run for President themselves. Historically this was not the case. John Adams and Thomas Jefferson were elected to the presidency from the vice-presidency under the original Constitution, but since the passage of the 12th Amendment, only two incumbent vice presidents have been so elected, Martin Van Buren in 1836 and the first George Bush in 1988. Between 1836 and 1960, no sitting Vice President was even nominated for President by a major party. But since Richard Nixon held the office, every Vice President who has served a full term has sought his party's presidential nomination (with the sole exception of Spiro Agnew, a convicted felon.) Even though Cheney has indicated he will not seek the Republican nomination in 2008, he is still the beneficiary of the contemporary view that the vice-presidency is a prelude to a presidential campaign.
A key reason that Vice Presidents started running for President regularly in and after 1960 is the simultaneous rise of the primary system and electronic media coverage of campaigns. Presidential nominations are now won and lost in early primary contests, not at the conventions. This places an emphasis on raising money early and becoming well-known to the electorate in a compressed time period. Vice Presidents have the advantage of holding national office, and they generally benefit from their association with the sitting President. For this reason, it is in the interest of the Vice President (and usually the President) to take an increasingly active role in executive branch operations, to convey the message that he is “experienced.” Voters, particularly primary voters, are unlikely to be wowed by a Vice President who merely presides over Senate debates.
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. This didn't start with Bush and Cheney. Jimmy Carter gave Walter Mondale a White House office, a practice followed by all subsequent administrations. Bill Clinton made Al Gore's chief of staff an assistant to the president (as Bush did for Libby.) And as EOP staff assumed policy-making responsibilities from the cabinet agencies, the Vice President and his staff have been able to jockey within the White House for more influence and control.
Some will say that it's necessary to have a Vice President integrated into the executive branch's operations, lest a clueless Veep succeed a president who cannot complete his term. But the republic has survived many such successions, starting with John Tyler in 1841. One presumes that regular service as president of the Senate would give a Vice President wide exposure to national affairs. (Keep in mind, the Vice President did not even attend cabinet meetings regularly until the 20th century.)
So what then is the harm of an integrated vice-presidency? The major problem is that a Vice President who exercises executive authority is not subject to constitutional and statutory protocols. Vice President Cheney is a key architect of the nation's war-making policy, yet he is not in the chain of command, which runs from the President to the Secretary of Defense to the Chairman of the Joint Chiefs of Staff, and thereon to the field commanders. There is no political mechanism for holding Cheney accountable—short of impeachment—for his role or any malfeasance by his office.
Nor, as Andrew Sullivan suggested, can Cheney simply be fired and replaced. The Vice President is a constitutional officer with a fixed term. Bush can't force Cheney to leave against his will. The best Bush could do is cut Cheney off from the White House and deprive him of access. But then, Cheney would simply be in the same boat as the first 40 or so Vice Presidents. And even if Cheney were to resign at the President's request, Bush could nominate a new Vice President who could exercise the same type of unconstitutional executive power that Cheney has. The constitutional problem is that the Vice President should have no role in the executive branch to begin with.
Dick Cheney may represent the zenith of vice-presidential power. But he may also represent the realization of an “Imperial Vice Presidency,” where the office exerts control over major policy-making functions of the executive branch, behind closed doors and beyond congressional oversight. This is clearly not what the framers expected from an office created practically at the last minute by the constitutional convention. The framers expected the Vice President to spend his days sitting in the presiding officer's chair of the Senate listening to hours upon hours of debate. This intention was actually carried out for nearly 150 years, longer than many other clauses of the Constitution, as written, were followed.