Constitutional Opinions

Wasting Paul Ryan?

A constitutional role for the Veep.

By From the October 2012 issue

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OH, NO! WHAT A WASTE!” called out my wife when I stuck my head into her study with the news that Governor Romney’s choice for vice president was Paul Ryan. “What do you mean?” I demanded. After all, I’d been listening for years to her singing the praises of the Badger State Brain. “He’s needed in the House,” she said. “Well,” replied I, “he’s only going over to the Senate.” This is when she, who has already forgotten more about politics than I’ll ever know, declared: “Now don’t you try your constitutional tricks on me.”

It’s no longer exactly news that the vice president isn’t necessarily part of the executive branch. This is owing to Vice President Cheney. He tried to squirm out of handing over documents that Congressman Henry Waxman wanted by asserting that the vice president was part of the legislative branch. Cheney pointed out that the only duty the Constitution gave him, absent the death or departure of the president, was to serve as president of the Senate. So a “legislative officer” was what claimed to be, and, as such, he wasn’t covered by the executive order Waxman was waving.

“The political backlash engendered by this position led Cheney’s office to withdraw to the more defensible position that the Office of the Vice President, like the Office of the President, was not an ‘agency’ for purposes of the statute,” is the way one sage, Glenn Harlan Reynolds, writing in the Northwestern University Law Review, summarizes the denouement. Reynolds notes, however, that Cheney’s spokesmen never repudiated the earlier position. He goes on to say that he himself believes that “the positioning of the Vice Presidency within the legislative branch—or, at any rate, outside the executive—may be appropriate.”

The only catch, Reynolds writes, is that such a reading would “render Cheney’s role within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.” This appears to be a reference to Article I, Section 6 of the Constitution, which establishes that “no Person holding any Office under the United States” shall be a member of either house of Congress. One could call it the “you can’t have your cake and eat it, too” clause, though it is more likely to be discussed by sophisticates under the rubric of separated powers.

It bothered the Founders of America from the beginning. Elbridge Gerry of Massachusetts was against having a vice president at all (“We might as well put the President himself at the head of the Legislature,” he carped). He was not, however, so against the idea when he himself had the chance to become vice president (the fifth). George Mason, as James Madison’s notes on the constitutional convention record, feared the vice president would prove “an encroachment on the rights of the Senate.” Roger Sherman of Connecticut defended the idea of putting the vice president at the head of the upper chamber. Otherwise, Madison quotes Sherman as saying, “he would be without employment.”

When Senators McCain and Obama were considering whom to tap as their running mates, Time magazine published a list of the worst vice presidents in history. It started with Aaron Burr. His president, Jefferson, had little use for him, though Burr is recorded by historians as having been a masterful president of the Senate, even if he could not vote save to break a tie, which he did three times.* Burr won plaudits presiding over the Senate trial of the only Supreme Court justice ever impeached, Samuel Chase, who was tried essentially for issuing from the bench rulings of which Jefferson didn’t approve.**

It’s hard to say what turn history would have taken had Burr found a modus vivendi with Jefferson. In the event, Burr tried to get out of the vice presidency by running for governor of New York, only to be sullied by the trash-talking of Alexander Hamilton, whom he slew in a duel, becoming the only vice president to be, while in office, charged with murder. Burr was never tried for the crime (there are those of us who believe he’d have had to be impeached first).

Time’s list of the worst vice presidents also includes Lincoln’s first, Hannibal Hamlin. It’s not that the man from Maine lacked for noble sentiments. His state had been created by the Missouri Compromise, and he was a committed advocate of African American soldiers, rights, and emancipation. Yet he spent his vice presidency complaining about its uselessness (he called it a “nullity” and likened it to the “fifth wheel of a coach”). Hamlin did manage to ban liquor in the Senate, an achievement that can be adjudged counterproductive. Time notes that Hamlin’s direct contribution to the war effort was serving in the Coast Guard as a cook.

TODAY IT IS UNLIKELY ONE WOULD FIND a sitting vice president scrubbing pots in the galley of some cutter, though come to think of it, such a duty would not be a bad assignment for, say, Joseph Biden. It certainly seems a more responsible role than being the vice presidential buffoon. Yet it may be President Obama wants Biden to play the buffoon so as to cast the Community-organizer-turned-president in a more substantive light. It may be that President Obama will decide to keep Biden as veep, simply because he makes a better jester than Hillary Clinton.

It is, in any event, hard to imagine the buffoon being played by Paul Ryan, who won his leadership in the budget debate by a combination of brains, work, and executive ability (and who is no doubt more prudent with his bow and arrow than Vice President Cheney was with his shotgun). One could almost be tempted to suggest that, should Messrs. Romney and Ryan prevail in November, the about-to-become exchairman of the House budget committee be given a formal role in respect of fiscal and monetary policy.

Would that make a Vice President Ryan unconstitutional, as Professor Reynolds warned could be the case with Vice President Cheney? After all, a vice president—unlike, say, a cabinet secretary or a general— can’t be fired by the president. He can’t, technically, be told what to do. He doesn’t even report to the president. I like the way Sarah Palin put it when, four years ago, she was asked about the odd role of the vice president. She defended the Founding Fathers as “very wise” in “allowing through the Constitution much flexibility” in the vice presidency.*** They were of a similar mind to my wife. They wouldn’t have wanted a man like Paul Ryan to go to waste.

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* The record was set by Vice President Adams, who, according to the Senate’s website, broke 29.

** He was acquitted.

*** The quotes from Palin, like those from Roger Sherman, Elbridge Gerry, and George Mason herein, are in my The Citizen’s Constitution: An Annotated Guide.

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).