Thursday, June 28, 2007

Is the Vice President Part of the Legislative Branch?

Keith Olbermann, a political hack rejected by Sportscenter posing as a newsman, proved his stupidity even more the other night in his attacks on Vice President Cheney. Olbermann’s attacks stated that Vice President Cheney was taking a position no one had ever taken before that the Vice President’s office was part of the legislative branch, not the executive branch. Sadly Rep. Ron Emmanuel agreed stating that no one in history has ever thought that. So permit me a minute to correct Keith Olbermann with a small history lesson because, while I think the Vice President is playing dirty pool, I think his office is the head of the legislative branch, and not part of the executive branch.

First, just look at the Constitution prior to amendments. The Vice President is first mentioned in Article 1 Section 3 paragraph 4 and 5, a fact Constitutional Law Professor Jonathan Turley forgot on Olbermann’s show. Here the Constitution is speaking about the Legislative Branch, and specifically the make up of the Senate. The Vice President is the President of the Senate. The President Pro-Tempore serves in the absence of the Vice President or if the Vice President is serving as the President, in other words, if the Vice President becomes the Executive Branch, he is removed from his job over the Legislative Branch. The Vice President is mentioned again Article 2 Section 1 paragraph 1 when it states the Vice President’s term is the same four year term as the President. Now notice the section prior to the amendments. Part of section 1 has been changed because of amendment 12. Originally the Vice President was the person who finished second in the race for the White House, not a person on the same ticket. The Vice President and President were not joined in anyway. They were not thought to be a unit. They were separate. This created problems and led to the 12th Amendment joining them onto a single ballot, but the Senate still retained the right to choose the Vice President in an event of a lack of a majority of electors because the Vice President is the head of the Senate. Note also the President of the Senate reads the electoral votes. That means the Vice President reads the votes. The Constitution refers to the Vice President as the President of the Senate indicating where his job should fall. In the Legislative Branch.

Second, notice that the original Constitution says nothing about what happens when a President dies or is removed from office. We have one blurb about the Vice President not being the President of the Senate if he must "exercise the Office of President of the United States." It is not explained anywhere further. We take for granted today that if a President dies in office that the Vice President becomes the President and finishes the term. That was not placed into the Constitution until the 25th Amendment in 1967. It was assumed because of the political genius of Vice President Tyler, who declared himself to be the President for the rest of Harrison’s term without clear Constitutional precedent. There were people in the House that did not believe that Tyler had that right. They thought the Vice President served as a place holder until a special election for President could be held. Eight people in the Senate and more in the House voted against the idea that the Vice President becomes the President. Tyler helped solidify in our minds the idea that the Vice President belongs to the executive, but it was a controversial thing when Tyler tried to become the chief executive.

Third, the Vice Presidents did not always go on foreign good will missions as they do today, but they actually sat and ran the Senate. John C. Calhoun, Vice President for both Adams (the second one) and Jackson, seems to have enjoyed the job of running the Senate. He allowed personal attacks in speeches by political friends and called down political enemies as being out of order. John Adams (the first one), Vice President for Washington, hated the job because he found it tedious and boring. These men had no executive jobs at all. Their sole job was to run the Senate, and vote there when needed. Even today the Vice President has no official executive job to do. They do not even get to be Commander-in-Chief of the Coast Guard.

Fourth, cabinet positions were also not always assumed to be part of the executive branch. Specifically the Secretary of Treasury reported directly to the House of Representatives since that branch is given control of the pursue strings. The Senate censured President Andrew Jackson when he directed Secretary of Treasury Roger Taney to remove the government deposits from the Second Bank of the United States. The reason was that the Secretary of Treasury did not have authority to do that without Congressional approval. Taney was also a recess appointment, who was then defeated, because the first Secretary of Treasury refused to remove the deposits on account of the fact that he believed Congress had to order him to do it, and not the President.

These are just a few of the facts that are easily discoverable by any decent journalist or Constitutional Law Professor. I do believe the Vice President belongs to the Legislative Branch, and I think the founders viewed his job as in the Legislative area as well. One might could argue that subsequent amendments have changed that, but what one cannot do, is pretend that the claims of Vice President Cheney are ridiculous.


Jay said...

I've never thought about this before, and I don't remember the slightest mention in any constitutional law class, but it seems that you might have a point with respect to the Vice President. There are some counter-arguments, at least insofar as the office works today (and we have to abide by the Constitution as amended, not as originally written).

First, it is clear from section 1 of the 25th amendment that the Vice President takes over as President if the President dies or resigns. So regardless of whether this was unclear in the 19th century, it is absolutely clear now. Second, section 2 of the 25th amendment allows the President, not the Senate, to fill a vacancy in the office of the Vice-President. I would say that both of these signs strongly point to the VP being a part of the executive branch.

In short, I think the Office of the Vice-President, like the President, wields both executive and legislative powers (the President, of course, has the legislative power of veto). Prior to the 25th Amendment, there was a far stronger argument that the VP was actually a member of the legislative branch. Now that the President has power to appoint a new VP, and the VP explicitly succeeds to the Presidency, I would say the scales are tipped toward calling the VP a member of the executive branch. But Olbermann was certainly wrong to say the point is an obvious one.

Lee said...


I do think the 25th Amendment muddies the waters a little bit. However, I still think the VP is part of the Legislative branch, as long as he is not taking over for the President. While he is still a Vice President his only duty is in the Legislative Branch.

As for the power of appointment, I do not think this places him in the executive branch. After all does not the President appoint people to the Judicial branch on a regular basis? The 25th Amendment does state that Vice-President-to-be must be approved by the Legislative branch, so this appointment power is not like filling a staff position. Since we know that the President’s appointment powers are for more than just the Executive branch, I fail to see how this section of the 25th amendment puts the VP in the executive branch rather than the Legislative.

I think your veto point is a better one. I think you should ask your lawyer professor buddies what they think.

Anonymous said...

Incisive analysis of accurate history regards VP constitutional status. However, to the point of the fight, if the VP is part of the Legislative Branch, does then Congress have the power to make rules as to how his records will be disposed and what personal and official privacy he will enjoy etc?

Anonymous said...

"This summer, Cheney chief of staff David Addington told Congress the vice president belongs to neither the executive nor legislative branch of government, but rather is attached by the Constitution to Congress. The vice president presides over the Senate."
Therefore Cheney's claim is he is neither part of the Executive OR the Legislative.
Also how can Cheney claim on one hand to be exempt from rulings concerning the Presidential office and then on the other threaten to abolish the US Archival dept if they don' get off his back?

Lee said...

I must agree that the claim that the VP is neither part of the Executive nor the Legislative is to make up a fourth branch of government that is not in the Constitution. I pretty pathetic and contemptible claim on the part of Cheney’s office.

I do believe that the VP is part of the Legislative Branch. I think the Constitution and the Founders understood it this way. I do think that this means the Legislative Branch has the right to make rules regarding his public office (not his private affairs). However, I think it would be an interesting argument to see if Congress could make rules specifically for the VP. For example, I do not think that Congress would claim it had the power to make the Senators from South Dakota have to disclose its records in a way that is different than the Senators from New York. If they do not have that power, then I am not sure they have the power to ask the VP to do something they themselves are not willing to do.