The Vice-Presidency and foreign policy (was Palin and Biden on the Vice-Presidency and the Constitution)

[Chambers, Hank]

I hope we can all concede that Biden's placement of the executive branch
in Article I was merely a slip of the tongue of the sort that all
candidates in the 2008 cycle have made (McCain: "my fellow prisoners").

 

However, I have two questions on the vice-presidency and foreign policy.


 

First, what is the vice-president's role in foreign policy even as
observer, if any, if the VP is a constitutional stranger to the
executive branch (and is largely a ministerial part of the legislative
branch, i.e., usually not involved in its decisionmaking)?  

 

Second, there was a discussion on the list a few weeks ago about whether
POTUS needs a security clearance.   I seem to recall that statutorily he
can see whatever documents he wants and has some capacity to share them
with folks in the executive branch as he sees fit.  If one believes that
the VP is a constitutional stranger to the executive branch, should not
that limit the role a VP can play in foreign policy (including being
shielded away from classified material) absent the president's
assignment of specific foreign policy duties to the VP?    

 

To be clear, I do not believe that the VP is a constitutional stranger
to the executive branch, but am asking what the implications would be if
he were.

 

-Hank             

 

Henry L. Chambers, Jr. 

Professor of Law

University of Richmond

28 Westhampton Way

Richmond, VA 23173

804-289-8199

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 06, 2008 1:39 AM
To: Discussion list for con law professors
Subject: Re: Palin and Biden on the Vice-Presidency and the Constitution

 

    I agree that this is an informal, flexible, but important advisory
role that has emerged.  And if this is what we focus on, then Palin's
answer is quite correct:  The Constitution does leave "much flexibility
there [as to the advisory role] in the office of the vice president."
Biden's answer becomes less incorrect than it was, but it still remains
flat wrong about which Article of the Constitution defines the Executive
Branch, about whether the role of the President is defined by Article I
(remember, by hypothesis we're assuming that Biden is talking about the
Vice-President's advisory role as well as his formal role), and about
whether the Vice-President presides over the Senate in cases of
impeachments.

 

    Eugene

 

________________________________

	From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
	Sent: Wednesday, November 05, 2008 9:21 PM
	To: Volokh, Eugene; Discussion list for con law professors
	Subject: RE: Palin and Biden on the Vice-Presidency and the
Constitution

	Actually Biden seems to be consistent with Cheney v. U.S.
District Court.  The Supreme Court in that case clearly seems influenced
by the fact that it is the Vice President who is heading the advisory
committee.  Not to overstate it, but the Court says, "Were the Vice
President not a party in the case, the argument that the Court of
Appeals should have entertained an action in mandamus, notwithstanding
the District Court's denial of the motion for certification, might
present different considerations."  That concern is because the Supreme
Court perceives the Vice President as a "very important" figure within
the Executive Branch.

	 

	I think that it is also reasonable to argue that the practice of
the last few Presidents has been to give Vice Presidents significant
roles within the Executive Branch and there is a public perception that
has existed at least since President Bush picked Cheney as his running
mate that the Vice President can make up for gaps in the President's own
experience as a sort of right-hand man.  I agree that the Constitutional
text does not indicate this, but U.S. constitutionalism in recent years
does.

	 

	Jonathan Miller

	Southwestern Law School

	 

________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
	Sent: Wednesday, November 05, 2008 8:40 PM
	To: Discussion list for con law professors
	Subject: FW: Palin and Biden on the Vice-Presidency and the
Constitution

	 

	By the way, before an incorrect memory of the Vice-Presidential
debate becomes widely accepted myth, I thought it would be worth quoting
the transcript.  Palin is indeed pretty vague in her answer -- it might
be interpreted as suggesting (wrongly) that the Vice-President has a
variable set of binding powers, or as suggesting (rightly) that the
Vice-President can be given a flexible set of advisory roles by the
President.

	But Biden is just flat wrong.  He's wrong about which Article of
the Constitution defines the Executive Branch.  He's wrong about saying
that the Vice-President "works in the Executive Branch," at least if
he's referring to his constitutionally "define[d]" duties:  Until he
succeeds to the office of President, and setting aside the Twenty-Fifth
Amendment, his "work," slight as it is, is entirely in the Legislative
Branch.  "Supporting the president and giving the president his or her
best judgment when sought" is not "the primary role" "define[d]" by "the
Constitution" (and if one goes beyond the Constitutional definition to
the advisory rule, then I take it that Palin should get full credit for
her answer, and she at least didn't claim that there's a Constitutional
definition of the advisory role).

	The Vice-President's legislative authority does not only extend
to situations "only when there is a tie vote"; his other legislative
authority is to preside over the Senate all the time, whether or not
there's a tie vote, except in cases of impeachments.

	So I realize that Prof. Finkelman's line about there being a
mandate for a constitutional vision "where the Vice President does not
claim to be outside the executive branch or claim powers beyond the
Consistution (as Palin seemed to believe she could do if elected)" is
likely a pot shot, not an attempt at a substantive argument.  But if it
was a substantive claim, then one could equally say that there's a
mandate for a constitutional vision where Article I defines the
Executive Branch, where the Vice-President has constitutionally defined
duties within the Executive Branch, and where he doesn't have the power
to preside over the Senate except when there's a tie vote.  "Everyone
should understand that."

	Eugene

	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..

	...

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