Vice Presidential Powers

Digby and David Kurtz are positively beside themselves over this entry from the “Plum Book,” reportedly submitted by the Office of the Vice President:

The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).

Kurtz smells “a theory of a constitutionally distinct and independent vice presidency” while Digby has spotted “a secretly carved out a previously unenumerated institution,” a “shadow government,” and “a power center outside the commonly understood three branches of government.” He calls for immediate Congressional inquiry.

Yet, aside from the oddity of the entry being submitted in lieu of a list of employees–if indeed that happened–there’s nothing novel there. The Vice President is indeed the only Constitutional official with feet in two branches. He’s the President of the Senate; yet he votes only in case of a tie. He has no formal power in the Executive branch but is designated as the replacement in case the president dies (Article II, Section 1) or is incapacitated (Amendment XXV). Amendment XII requires the Vice President, in his capacity as President of the Senate, to preside over the counting of Electoral College votes and, oddly, has him act as President of the United States if the Electoral College has no majority and “the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following.” (Presumably, that’s obviated by Amendment XX, which moves the inauguration to January 20.)

Title 3 § 106, “Assistance and services for the Vice President,” formalizes the fact that the VP can perform “functions specially assigned” him “by the President in the discharge of executive duties and responsibilities.” Other legislation, notably the National Security Act of 1947, assigns him other duties.

My guess as to the reason the OVP would have submitted that peculiar, legalistic entry to the “Plum Book” (officially, United States Government Policy and Supporting Positions) is because it “is used to identify presidentially appointed positions within the Federal Government.” OVP may simply be making the pedantic point that, in fact, the Vice President himself is authorized plenary power to appoint officials in both the Executive and Legislative branches. These people are not “presidentially appointed.”

UPDATE: I should note that the 1996 and 2000 editions had standard name/title breakdowns for OVP, which was listed under the Executive Office of President. The 2004 listing has it as Appendix 5. This is technically right, I think, for reasons outlined previously. Still, the departure from precedent is indeed rather odd.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Dave Schuler says:

    Or, as one of FDR’s vice presidents put it, the office isn’t worth “a bucket of warm spit” (although I’m inclined to believe that “Cactus Jack” Garner wasn’t kidding when he said that journalists had cleaned up his language a bit).

    Digby continues to be incensed about the pesky Constitution.

  2. Dave Schuler says:

    Also IIRC for the first few quadrennials the president and vice president didn’t run as a ticket—the vice president was whoever came in second. Can’t get much more independent than that.

  3. James Joyner says:

    the first few quadrennials the president and vice president didn’t run as a ticket—the vice president was whoever came in second

    Right. The 12th Amendment changed that. The Framers did not envision political parties in the modern sense or the absurdity of having a president and vice president run against one another, as John Adams and Thomas Jefferson did in 1800. Jefferson won, of course. Talk about your awkward transition periods!

  4. Dave Schuler says:

    After re-reading the 12th Amendment for the first time in a very long time, something struck me that I hadn’t noticed before: there’s an effective prohibition on the president and the vice president coming from the same state. I doubt that’s an issue this time around (all of the leading candidates in both parties are from different states) but I can imagine it might be.

  5. James Joyner says:

    an effective prohibition on the president and the vice president coming from the same state

    When Reagan was courting Ford to run as his veep in 1980, there were concerns that both were California residents. The solution was for Ford to “move” back to Michigan, from when he hailed and had served in the House.

    In 2000, it happened again, with Dick Cheney having moved to GWB’s home state of Texas to run Halliburton. This was solved by Cheney filing papers re-establishing residency in Wyoming, where I believe he still had a home, and where he had served in Congress.

    So, “effective” might not be the proper modifier for “prohibition” in this case 🙂

  6. “He’s the President of the Senate; yet he votes only in case of a tie.”

    Other than symbolic, I’m not sure where the 101st senator’s vote would matter otherwise. Other than to make a tie if a senator was skipping class to run for president. The ‘created tie’ would then lead to other issues.

  7. Jay says:

    The OVP is refusing to comply with an EO because it feels that it is a separate and unique branch. That’s where the concern is not some list of names.