One of Biden's less obvious recent mistakes was the claim that Article I of the Constitution supported the idea that the VP's job was primarily executive. Article I deals entirely with the legislative branch and describes the VP as president of the Senate. Article II deals with the executive. All it says about the VP is how he shall be elected, how he can be removed from office, and in what circumstances he becomes President. In the system as originally designed, the VP's responsibilities are entirely legislative until and unless he becomes President, executive thereafter.
That does not describe current practice. The VP has become, to differing degrees in different administrations, a sort of assistant President. In some cases that means primarily ceremonial duties—Hubert Humphrey under Johnson, as immortalize by Tom Lehrer in "Whatever Became of Hubert?" In other cases, most notably Cheyney under Bush, the VP is sufficiently active to be viewed by critics as the puppetmaster controlling the President.
In part this reflects the striking difference between the original system for electing a VP and the current system. Initially the VP was simply the presidential candidate who came in second. Each elector got to vote for two candidates, so on a strict party-line vote the President could choose his Vice President by telling the electors who supported him whom to cast their second ballot for. But if some electors cast their second vote for their second choice rather than for the candidate endorsed by their first choice, the most popular candidate would end up as President and the second most popular might well end up as Vice President. In such a situation, there would be no reason to expect the President to view the Vice President as someone he wanted on his team.
All of which raises the interesting question of what things would be like if the Twelfth Amendment, which set up the modern system, had never been passed. There would probably still be parties and a party could still run two candidates. But the final outcome might pair up the two presidential candidates as President and Vice President, it might make make the "Vice Presidential candidate" (insofar as there was one--the candidate who the party ranked second) President and the Presidential candidate VP, it might pair up a presidential candidate of one party with the VP of the other. Barack Obama and Sarah Palin, for instance, would make an interesting administration.
One disadvantage of that system would be the increased risk of assassination if the President and Vice President were from different parties. One advantage, arguably, would be increased fairness. In a close election under our system, half the voters get the candidate they want, half get nothing. Under the old system, half get ninety percent of an administration, half ten percent—assuming that, on average, the VP spends ten percent of his term as President.
It would be interesting.
That does not describe current practice. The VP has become, to differing degrees in different administrations, a sort of assistant President. In some cases that means primarily ceremonial duties—Hubert Humphrey under Johnson, as immortalize by Tom Lehrer in "Whatever Became of Hubert?" In other cases, most notably Cheyney under Bush, the VP is sufficiently active to be viewed by critics as the puppetmaster controlling the President.
In part this reflects the striking difference between the original system for electing a VP and the current system. Initially the VP was simply the presidential candidate who came in second. Each elector got to vote for two candidates, so on a strict party-line vote the President could choose his Vice President by telling the electors who supported him whom to cast their second ballot for. But if some electors cast their second vote for their second choice rather than for the candidate endorsed by their first choice, the most popular candidate would end up as President and the second most popular might well end up as Vice President. In such a situation, there would be no reason to expect the President to view the Vice President as someone he wanted on his team.
All of which raises the interesting question of what things would be like if the Twelfth Amendment, which set up the modern system, had never been passed. There would probably still be parties and a party could still run two candidates. But the final outcome might pair up the two presidential candidates as President and Vice President, it might make make the "Vice Presidential candidate" (insofar as there was one--the candidate who the party ranked second) President and the Presidential candidate VP, it might pair up a presidential candidate of one party with the VP of the other. Barack Obama and Sarah Palin, for instance, would make an interesting administration.
One disadvantage of that system would be the increased risk of assassination if the President and Vice President were from different parties. One advantage, arguably, would be increased fairness. In a close election under our system, half the voters get the candidate they want, half get nothing. Under the old system, half get ninety percent of an administration, half ten percent—assuming that, on average, the VP spends ten percent of his term as President.
It would be interesting.
6 comments:
So you're arguing that the Vice President shouldn't be covered by executive privilige, correct?
This year, McCain is going to win every state Bush won in 2000, except for Colorado. The Republican electors, realizing that the House will choose Obama, will vote McCain for Vice President, and Lieberman and Cheney will put him over the top in the Senate.
I think my argument implies that the VP shouldn't be covered by executive privilege if we are thinking in terms of the original constitutional scheme of things.
I don't have any particular opinion on how the question plays out, given the way in which the nature of the job has changed since then. My initial point wasn't that Biden's conclusion was wrong—it is plausible that at least some VP's are more nearly a part of the executive branch than the legislative branch—merely that his appeal to the Constitution was wrong.
I was recently directed to this blog and I love it. Thank you for writing so clearly about important issues.
Executive privilege doesn't depend on him being part of the Executive Branch. Executive privilege belongs to the President, and any work the VP does for the President is covered by the President's privilege. If the President were to drop me an email and ask my advice on something, or if he were to delegate some small task to me, that would be covered by executive privilege too.
If you like, you can put it this way: when the VP is fulfilling an executive function he's in the executive branch, otherwise he's in the legislative branch. But remember that the constitution makes no mention of these "branches". They're a structure we put on it afterwards. So there's no reason the VP has to fit neatly into that structure. The fact remains that the only job the constitution gives the VP is that of President of the Senate, and that was not changed by the 12th or 20th or 25th amendments.
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