Please, Mess with Joe

In Tuesday’s Examiner column, I argue that if the current veep’s gaffetasticness leads to a rift between POTUS and VPOTUS, that would be a good thing. Excerpt:

A new book by Newsweek’s Richard Wolffe reports that President Obama is dismayed by “his vice president’s indiscipline.” Who can blame him? At the height of the Swine Flu panic, our excitable veep fanned the fear on NBC’s Today Show, squeaking that, “If one person sneezes, it goes all the way through the aircraft!”

A month before, at a dinner with journalists, Biden apparently let slip the location of the secret bunker used by Dick Cheney after 9/11. Last week, the Christian Science Monitor offered this sardonic headline: “Biden Speaks at Wake Forest—does not disclose nuclear launch codes.”

“Between brain and mouth there is no interlocutor,” Sopranos character Hesh Rabkin once said of matriarch Livia Soprano, and so it is with Joe. Are Biden’s gaffes leading the president to keep VPOTUS at arm’s length? We should hope that’s the case, and not just because of this particular vice president’s verbal incontinence.

The modern conception of the vice-presidency—where the veep serves as chief advisor and virtual copresident—is a dramatic departure from the veep’s constitutional role. Worse, it clouds responsibility and makes accountability more difficult. After eight years of Dick Cheney, the last thing America needs is another Imperial Vice Presidency.

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Posted on May 27, 2009 in Executive Power | 3 Comments

Downsizing the Veep

Hey! Gwen Ifill kinda asked my question at Thursday’s veep debate:

IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

IFILL: Vice President Cheney’s interpretation of the vice presidency?

BIDEN: Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there’s a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.

If I’d have known I could actually get a question into the debate, I’d have asked Joe Biden how many working class guys he meets riding the Acela up to Wilmington or had Sarah Palin name all the post-WWII presidents in order.

Biden made more of an attempt to answer the question Ifill asked, but his answer doesn’t make much sense. Uh, Joe, Article I covers the legislative branch. And the veep’s only power is legislative, presiding over the Senate and breaking tie votes. The Constitution doesn’t grant him any executive power.

And yet here’s Dick Cheney, co-president from at least 9/11/01 on, giving orders to shoot down planes, running large swathes of the War on Terror, and even exercising formally delegated executive powers over the control of information.

As Reynolds suggests, it’s constitutionally suspect for the president to delegate executive power to officials he can’t remove from office. He also notes that

there may be practical reasons to limit vice presidential involvement in day-to-day executive business regardless of whether we accept the characterization of the Vice Presidency as a legislative office or not. Whether or not the Vice President is seen as a legislative officer, the office of Vice President is something special. The Vice President is, after all, primarily meant to serve as a sort of spare President, and—as with spare tires or backup servers—it may be safest not to put the spare into ordinary service before it’s needed. Presidents are lost in three ways: death, resignation, and impeachment. Vice presidential involvement in policy has the po-tential to put the “spare” role at risk in at least two of these contexts. When Presidents resign or are impeached, it is often over matters of policy.

Although the risk that a Vice President will be involved in the precipitating events is hard to estimate, it is certainly higher for an activist Vice President than it will be for a Vice President playing a traditionally quiescent role. Though talk of impeaching the current occupants of either office is unlikely to come to anything, it illustrates the risks…. Had Carter been impeached or forced to resign as a result of the Iran debacle, Mondale’s public distance would have been important in preserving his ability to govern.

Whatever one thinks of the Bush impeachment talk of the last few years, two and a half impeachments over our entire constitutional history is probably fewer than we ought to have had. And impeachment becomes more difficult when the president’s replacement is deeply implicated in the activities considered grounds for impeachment.

And there are other problems with a Cheney-style vice presidency as well, problems that ought to be of particular concern to unitary executive fans. One of the more convincing arguments offered by Hamilton against the idea of a plural executive is that “it tends to conceal faults, and destroy responsibility.” He continues,

The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.

That’s certainly been the case over the last seven years. As Barton Gellman has recently shown, information about the so called Terrorist Surveillance Program was so tightly held among Vice President Cheney, David Addington, and their administration allies, that President Bush was unaware until the very last moment that the top echelon of his Justice Department was ready to resign over the illegality of the original program. When an activist vice president deliberately keeps the president in the dark, it can be difficult to discern where the buck really stops.

At the constitutional convention, when Elbridge Gerry objected to the veep’s legislative role, Roger Sherman made the salient point that “If the vice-President were not to be President of the Senate, he would be without employment.” Our early vice presidents didn’t play an important role in the executive branch. Washington kept John Adams at arm’s length from policymaking, and Adams was also frustrated in his attempts to actively manage the Senate as presiding officer. The best view of the vice-president’s constitutional role is that the veep really is supposed to be a bucket of warm [fluid] unless and until he or she is called upon to assume office. And there’s good reason for that. Here’s hoping that Vice President Biden or Vice President Palin will spend less time making policy and more time attending funerals.

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Posted on Oct 5, 2008 in Executive Power | 11 Comments

Cult of the Vice Presidency

Look ma, I’m in the New York Times, with a question for the aspiring veeps:

The claim by Dick Cheney that he was exempt from certain disclosure requirements because the vice president was a “legislative officer” has been greeted with outrage. But the main power the Constitution grants the vice president is a legislative one — breaking a tie vote in the Senate.

So, Governor Palin, Senator Biden, doesn’t Mr. Cheney have a point?

But, then, if the vice president is a legislative officer, how can he wield the vast executive powers that Mr. Cheney has exercised, including orchestrating and supervising a warrantless wiretapping program?

Can the vice president shift between branches at his convenience? If not, what, in your view, is the constitutional status of the vice presidency?

— GENE HEALY, the author of “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power”

Giving credit where it’s due, I should mention this smart, short law review article by Glenn Reynolds, “Is Dick Cheney Unconstitutional?”

Friend and Blogfather Radley Balko has a good one for Joe Biden:

Senator Biden, you’ve been one of the Senate’s most ardent drug warriors. You helped create the office of “drug czar”; backed our failed eradication efforts in South America; encouraged the government to seize the assets of people merely suspected of drug crimes; pushed for the expanded use of racketeering and conspiracy laws against drug offenders; advocated the use of the military to fight the drug war; and sponsored a bill that holds venue owners and promoters criminally liable for drug use by people attending concerts and events.

Today, illicit drugs are as cheap and abundant as they were decades ago. Would you agree that the anti-drug policies you’ve championed have failed? If not, how have they succeeded?

— RADLEY BALKO, a senior editor at Reason magazine

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Posted on Oct 2, 2008 in Cult of the Presidency, Domestic Policy, Executive Power | 5 Comments

Joe Biden’s War Record

I have a piece up on National Review Online today about Joe Biden’s sorry record on the Iraq War and what it means for the future of Congress’s (increasingly theoretical) power to declare war. The column’s hooked to tomorrow’s debate, but who knows if that’s going to happen.

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Posted on Sep 25, 2008 in Executive Power, Foreign Policy and Defense | 12 Comments

Biden and “Dumb Wars”

In his 2002 speech, then state-senator Barack Obama said, “I’m not opposed to all wars. I’m opposed to dumb wars.” And that would certainly represent an improvement over what we’ve got now. Curious, then, that Obama’s picked a running mate who seems to have no such objection.

Today’s Washington Post details Biden’s role in enabling our Iraq adventure. It’s hardly a “Profiles in Courage” moment, and it also points up the gutless and constitutionally suspect manner in which Congress authorized the war: by delegating the final decision over war and peace to the president:

In the days that led up to the vote on the war resolution, Biden and McCain stood together on the Senate floor, sometimes fighting against each other, sometimes fighting in tandem. They teamed up to shoot down an amendment by Sen. Carl M. Levin (D-Mich.) that would have forced Bush to seek further authorization before an actual invasion. They were on opposite sides of the effort to narrow the war mission from regime change in Iraq to combating Hussein’s alleged weapons of mass destruction. And Biden expressed plenty of misgivings about Bush’s intentions.

“The president always has the right to act preemptively if we are in imminent danger. If they are coming up over the hill, he can respond. If troops are coming out of Tijuana, heading north, we can respond. If they are coming down from Toronto, we can respond. If missiles are on their way, we can respond. But that is not the way I hear it being used here. We are talking about preemption, as if we are adopting a policy,” Biden said.

….

But in Biden’s closing remarks before the war vote in 2002, he also voiced a remarkable degree of trust in Bush. “The president has argued that confronting Iraq would not detract from the unfinished war against terrorism. I believe he is right. We should be able to walk and chew gum at the same time,” he said. “

Walk, chew gum, and play the harmonica, perhaps–having learned little from the Iraq experience, Biden in April 2007 called for American boots on the ground in Darfur:

Joseph Biden, chairman of the Senate Foreign Relations Committee and a Democratic presidential candidate, called Wednesday for the use of military force to end the suffering in Darfur.

“I would use American force now,” Biden said at a hearing before his committee. “I think it’s not only time not to take force off the table. I think it’s time to put force on the table and use it.”

In advocating use of military force, Biden said senior U.S. military officials in Europe told him that 2,500 U.S. troops could “radically change the situation on the ground now.”

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Posted on Aug 25, 2008 in Foreign Policy and Defense | 10 Comments

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