Posted by: David Offutt | May 2, 2009

A Vice Presidential Amendment to the Constitution

I would like to recommend a Vice Presidential Powers Amendment: “The vice president of the United States shall cast no vote in the Senate.” The VP rarely presides in the Senate anymore unless he is needed to break a tie to advance the agenda of the executive branch. Through the vice president, the executive branch can determine whether the legislative branch approves a presidential appointment or sends a bill to the president. Hence, we have a conflict in our constitutional separation of powers and our system of checks and balances. The vice president is an executive agent working inside the legislative branch.

cheneyThe Bush-Cheney relationship has always appeared to be virtually that of co-presidents. Sen. Joe Biden said he once asked the president if he could name one time that Cheney’s advice had been correct, and all he got was silence. However, Cheney was at least half correct when he claimed that he was in the legislative branch rather than the executive branch.

Mr. Cheney is well aware of the flaw in the Constitution that allows him to select which branch he chooses to belong. Obviously, he picks the one that’s in his own best interests. For instance, the legislative branch wanted him to divulge the names of those who advised him on his anti-environmental energy policy. He refused because he was in the executive branch, which needed to receive uninhibited advice. He later found it to be more convenient to be in the other branch. He is the first VP to be authorized by the President to have equal power in classifying documents. Even though an executive order requires all executive agencies to report their numbers of classified and declassified documents, he said the order didn’t apply to him because he was in the legislative branch. He has since renounced that claim, but we still have a definite constitutional problem. It will take an amendment to resolve it.

In Article I of the Constitution, the Founding Fathers clearly placed the vice president in the legislative branch.  His job was to be the President of the Senate and to vote in the event of a tie. Originally, the VP was not elected as the running mate of a political party’s presidential candidate. Therefore, because he was independent of the president, it was presumed he would use his own wisdom to cast his vote.

The Founders also mentioned him in Article II, which is concerned with the executive branch. The vice president would be the presidential candidate who received the second highest electoral vote. However, the only duty they gave him in the executive branch was to replace the president if the need arose. Our first vice president was John Adams, who considered the office to be “the most insignificant job ever conceived by the mind of man.” Yet, he realized, “I am nothing, yet I may be everything.”

The 12th Amendment changed the relationship between the president and the vice president. It was in response to the evolution of political parties, which had not been anticipated by the authors of the U. S. Constitution. In 1796, Federalist John Adams became president while Republican Thomas Jefferson, who received the second most votes, was elected vice president. In 1800, Republican-running mates Jefferson and Aaron Burr each received the same number of electoral votes, so there was a tie for president that was resolved in the House of Representatives. The 12th Amendment provided for electors to cast two separate ballots: one for president and one for vice president. That way the running mates of only one political party would be elected. Since the president and vice president were recognized as a team, the VP was obviously in the executive branch. Therein lies the flaw – the 12th Amendment failed to remove the VP’s power to vote in the Senate!

Historically, before the Bush-Cheney regime, this conflict really hasn’t been abused. Few presidents have given their vice presidents much to do. Theodore Roosevelt suggested moving a squeaky ceiling fan in the White House over to V. P. Charles Fairbanks’ office across the street in the Executive Office Building. TR said it might help keep the VP awake. Thomas Marshall, Woodrow Wilson’s VP, used to tell the story of two brothers: one became vice president, the other went to sea, and neither was ever heard from again. Franklin Roosevelt’s first VP was John Nance Garner, and he played virtually no role in the New Deal, which dealt with the Great Depression. JFK never consulted V. P. Lyndon Johnson during the Cuban Missile Crisis.

Nevertheless, the conflict of the vice president being in two branches was dangerously abused in the summer of 2005. The Republican majority in the Senate was working with Bush to stack the federal courts with lifetime appointments of left-wing /right-wing extremists. They wanted judges who were both radical – those that favor an unchecked president with absolute power – and reactionary – those who want to turn the clock back to the late 1800s. It was part of Karl Rove’s scheme to create a permanent Republican majority that controlled all three branches of our government. To do this, they attempted a tactic that was so extreme that is was called the “nuclear option.” They threatened to change Senate rules so as to prohibit debate on Bush’s judicial appointments. Because a few Republicans wouldn’t support such extremist judges, they couldn’t get 51 %. But, they hoped to get a 50-50 split so that the Vice President (“co-president” Cheney) could vote to approve the president’s lifetime appointees!

Recently, we were reminded how much has changed under the dual presidency of Bush-Cheney. During the only vice presidential debate, as to the role of the vice president under the Constitution, Sarah Palin said that she agreed with Cheney that “we have a lot of flexibility in there.” Later, a third-grader asked Gov. Palin what her job would be as vice president. She answered that she would be in charge of running the Senate. She was wrong, of course, but it was scary what she seemed to envision.

A constitutional amendment is the only solution to end the overlapping roles for the vice president. The tradition of having the vice president as the ceremonial President of the Senate is harmless and should be continued, but the power to vote in case of a tie should be removed. Henceforth, a tie vote would not be broken and would mean there is insufficient support for the issue. This would remove the vice president from exerting executive authority within the legislative branch, restore the separation of powers, and enhance our system of checks and balances. But, will anyone else propose a Vice Presidential Powers Amendment? Probably not – until we get another Cheney. We need to do it before that happens and before we get another Republican majority in the Senate.

by David Offutt
A version of this essay was published November 15, 2008,
in the El Dorado News-Times as a letter to the editor.

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