Sandy Levinson: If Cheney really is a branch unto himself, the vice presidency must be abolished

[BurtWorm]

Levinson writes at Balkinization. This is a particularly trenchant analysis of the the Cheney "travesty":


http://balkin.blogspot.com/2007/06/law-honor-vice-president-and-our.html

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One of the worst aspects of Watergate is the "legalization" of presidential misconduct. Now, apparently, the view of many is that so long as a public official isn't an out-and-out criminal, observed as such by absolutely unimpeachable evidence, then there's no adequate cause for concern. And, of course, if we adopt a Holmesian understanding of law, defined exclusively as a prediction of what courts will do (only after public prosecutors, i.e., US attorneys, decide to bring cases in the first place), then the lack of legal sanction translates into authoritarian carte blanche for protected decisionmakers. There is a name for such a political system, and it isn't a "Republican Form of Government" (unless, of course, one takes the term "Republican" to refer to the political party that has made a travesty of that honorable term).

So this brings me to the latest travesty from the Vice President's office, described in a story in tormorrow's NY Times by Scott Shane, "Chaney in Disute on Oversight of His Office," where we read of the claim by Chaney and his Carl Schmitt-like consigliere (excuse the mixed metaphor) David Addington that the Vice President's office is uniquely free, in the entire American government, from any oversight whatsoever by either Congress or Executive Branch agencies because, you see, being a member of both branches (he is, after all, the president of the Senate), he is immune from any oversight by either. If Congress attempts to engage in oversight, he can invoke "executive privilege." If the Executive Branch makes a feeble effort, then he can claim, like Rep. William Jefferson, to be a member of the legislature immune from ordinary executive branch procedures.

I wish I were engaging in satire or even hyperbole, but the article concludes as follows:

... David B. Rivkin, a Washington lawyer who served in Justice Department and White House posts in earlier Republican administrations, said Mr. Cheney had a valid point about the unusual status of the office he holds.

“The office of the vice president really is unique,” Mr. Rivkin said. “It’s not an agency. It’s an extension of the vice president himself.”

Let me suggest that if there's any plausibility at all to Mr. Rivkin's argument, then he has identified yet another deficiency in our Constitution, for which the most obvious remedy is abolishing an office that for much of our history has been useless (assuming that the office was filled at all, as it has not been for a total of approximately 45 years) and now has emerged as a true menace to the republic, both literally and figuratively.

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[BurtWorm]

1. kick

[Tempest]

2. Or make it an elected position

Either option is acceptable to me.

[StatGirl]

3. Or at least the *office* should be abolished.

I don't think there's anything in the Constitution that says that the VP needs any office, staff, or equipment other than that needed to preside over the Senate. Give him a cell phone and a gavel. On second thought, the gavel should just be left on the podium.

That's not the same as abolishing the vice-presidency itself, it's just acknowledging that, under the Constitution, that position has zero executive power unless the President is incapacitated.

The beauty of it is that Congress can de-fund his office any time they want. No office. No staff. No Air Force Two.

I'm not sure which president started the idea that the VP should be kept busy -- Carter, or was it someone earlier? -- but in retrospect, this was a baaaad mistake.