Mike Pence, Dick Cheney, and the Constitution

What is a Vice President's job, anyway?

Mike Pence is arguing that the Vice President is a legislative, not an executive, officer. Mike Luttig has a piece in the NYT calling that crazy.  (Link is to Josh Blackman's blog post on same.  Luttig’s piece is here, but it’s paywalled.)

Well, as it happens, I had a piece on the topic in the NYT over a decade ago, and I've also authored a piece in the Northwestern University Law Review on the topic, and I say he's not crazy.  

Nowadays, we tend to think of Vice Presidents – wrongly – as a sort of junior or co-President, but that’s not actually how it works at all.  As I wrote in the Northwestern Law Review piece:

The Constitution gives the Vice President no executive powers; the Vice President's only duties are to preside over the Senate and to become President if the serving President dies or leaves office.  Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line. The Vice President really is not an executive official. He or she executes no laws--and is not part of the President's administration the way that other officials are. The Vice President cannot be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment. 

In various cases involving the Executive power, the Supreme Court has placed a lot of weight on the question of whether an official can be fired by the President or not.

Continuing:

Traditionally, Vice Presidents have not done much, which is why the position was famously characterized by Vice President John Nance Garner as "[not] worth a pitcher of warm spit."" That changed when Jimmy Carter gave Fritz Mondale an unusual degree of responsibility,  a move replicated in subsequent administrations, particularly under Clinton/Gore and Bush/Cheney.

The expansion of vice presidential power, however, obscures a key point. Whatever executive power a Vice President exercises is exercised because it is delegated by the President, not because the Vice President posesses any executive power already. The Vesting Clause of Article II vests all the executive power in the President, with no residuum left over for anyone else.  Constitutionally speaking, the Vice President is not a junior or co-President, but merely a President-in-waiting, notwithstanding recent political trends otherwise. To the extent the President delegates actual power and does not simply accept recommendations for action, the Vice President is exercising executive authority delegated by the President while being immune to removal from office by the President, unlike everyone else who exercises delegated power.  The only recourse for the President is withdrawal of the delegation, with instruction to subordinate officials within the Executive Branch not to listen to the Vice President.  However, it seems pretty clear that the President is not allowed to delegate executive power to a legislative official, as that would be a separation of powers violation.

The point of my argument there was to note that, by arguing that Vice President Cheney was not subject to the Freedom of Information Act because he was a legislative official, the White House had raised the question of whether President George W. Bush’s extensive delegation of executive powers to Cheney was unconstitutional.  (Hence the title, Is Dick Cheney Unconstitutional?)

Pence, now, is arguing that by presiding on January 6, 2021, he was serving as a legislative official, and thus that his actions and words are covered by the Speech and Debate Clause, making it improper for the special prosecutor to question him.  This argument may or may not be correct, but it is not at all crazy, and even in the context of an oped that is more about politics than the law, Luttig should have taken it more seriously. 

There are arguments both ways.  Textually, the Clause applies only to “Senators and Representatives” – its actual language is “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

However, presiding over the Senate is surely a legislative function par excellence.  In other cases involving governmental immunity, the Court has taken a functional approach:  If you’re acting as a judge or a prosecutor in an administrative proceeding, for example, you’re entitled to the absolute immunity accorded to judges and prosecutors, regardless of your job title.  Under this approach, Speech and Debate protection for the Vice President seems like a no-brainer. And the Supreme Court, in Gravel v. United States, held that an aide who functions as an alter ego to a legislator can qualify for legislative immunity, which illustrates that the text’s limitation to Senators and Representatives is not absolute.

On the other hand, the Supreme Court has, somewhat bizarrely, taken a narrower view of legislative immunity, which is mentioned in the text of the Constitution, than it has taken with regard to the qualified immunity of government officials generally, and the absolute immunity of prosecutors and, ahem, judges, though the latter is entirely a judicial creation, without any constitutional or statutory roots.  It is thus entirely possible that it will be a stickler for textual analysis in this case – though to be fair, where the judicially-invented immunities are concerned, there is no text at all to worry about.

Luttig also writes, “Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument.”  I believe he intends this as a condemnation of Pence, but it could just as easily apply to the proceedings against Pence (and Trump), which are every bit as unprecedented, and certainly every bit as driven by political considerations, as Pence’s legal arguments.

At any rate, not enough attention is paid to the Vice President’s odd, betwixt-and-between status.  The fact that the VP may be President some day isn’t enough to turn him (or her) into an Executive Branch official – after all, the Speaker of the House and the President Pro Tem of the Senate are next in line, and no one would argue that they are in the Executive Branch.  And that these kinds of issues keep arising provides further support for my Cheney-era argument that it is better to keep the Vice President out of the regular business of politics and administration.  The chief function of the Vice President is as a spare, and – as with spare tires and backup servers – it undermines the function of a spare when they are put into regular service.  This latest kerfuffle should serve as a further warning.