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The Power of VicePalin is no Cheney, and neither is Biden. How much clout will the VP's successor have?

By Barton GellmanPosted Monday, Oct. 6, 2008, at 5:50 PM ET

(Continued from page 1)

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Palin's affinity for Cheney is not shared by the man at the top of her ticket. John McCain clashed loudly with the vice president over torture, capital gains tax cuts, and the conduct of war with Iraq. In the GOP primary debates, he made pointed jokes at Cheney's expense. Asked what authority he would delegate to his vice president, McCain said, "The vice president really only has two duties. One is to cast a tie-breaking vote in the case of a tied vote in the Senate. And the other is to inquire daily as to the health of the president." Having earned his laugh, McCain found an applause line: "Look, I would be very careful that everybody understood that there's only one president."

Compare that sentiment to Palin's remarks in the vice-presidential debate last week. Palin described herself as "thankful the Constitution would allow a bit more authority given to the vice president if that vice president so chose to exert it." The word "authority" was noteworthy since the vice president actually has none. Moderator Gwen Ifill then asked Palin to comment on Cheney's assertion that his office is neither in the executive nor legislative branch. Palin replied:

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.

Biden fired back, but his aim wobbled. He denounced the legal ambiguity as a "bizarre notion invented by Cheney," adding: "Article I of the Constitution defines the role of the vice president of the United States. That's the Executive Branch." Actually, Article I defines the legislative branch, Article II the executive, and the vice president is mentioned in both. Cheney did not invent the idea that his office is a hybrid. He merely pressed it to the point of absurdity. It was not long after I mentioned this dispute that Jack Goldsmith, a Justice Department lawyer who clashed with Addington, said to me that the vice president's lawyer was "principled to the point of being stupid."

Addington, true to form, found a 40-year-old Justice Department opinion to support his legal claims. (Watch him cite the precedent in this hearing.) It turned out that the office of legal counsel had come down on three sides of the question of whether the vice presidency is a legislative or executive office. The first known opinion, in 1955, held squarely that the president and vice president are both "elected officers in the executive branch of government." Seven years later, the same office ruled that "from the very beginning of the Nation, the Office of the Vice President has been considered as being in the legislative branch." Addington took his language from still another pair of rulings (here and here) by Nicholas Katzenbach, who went on to become attorney general for Lyndon Johnson. Katzenbach noted that the VP presides over the Senate and draws his pay, franking privileges, and stationery allowance from that body. On the other hand, he cannot be a member of the Senate because Article I (section 6, clause 2) says that "no Person holding any Office under the United States, shall be a member of either House during his Continuance in Office." The vice president not only holds such an office but is subject, like the president, to impeachment. Katzenbach finally punts: "Perhaps the best thing that can be said is that the vice president belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter."

That was the best of all possible answers for Cheney and Addington, because it gave them just the kind of "flexibility" Palin cited. A branchless office could and did dispute that it was bound by regulations governing either the legislature or executive branch. But Addington conveniently stopped short of quoting the passages that followed the line he liked. Katzenbach said the "semantic problems … would not seem to be especially relevant" to the question of whether the vice president serves the executive branch. "If a judicial test of the employment of the Vice President in the affairs of the Executive were ever to occur, there is little reason to believe it would be decided purely on the basis of abstractions," Katzenbach wrote. "In short, theoretical arguments drawn from the doctrine of separation of powers merit little attention in the face of history, like that to the present, disclosing that the Office of the Vice President has become a useful adjunct to the Office of the President."

If Palin makes it to No. 2, she may find more practical inspiration in the U.S. military's Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms. Search it online for the acronym UNODIR, which is Army-speak for "unless otherwise directed." I learned vividly about UNODIR over dinner at the al-Rasheed hotel in Baghdad, not long before starting my project on the Cheney vice presidency. My host was David Petraeus, then a two-star general. With a mischievous smile, Petraeus described UNODIR as a valuable if risky tool for the commander who values autonomy. The way it works is, you take initiative in the heat of the moment. Then you send a well-timed message ("Unless otherwise directed, I will continue to … "). Hearing no objection, you have a patina of authority for decisions that higher headquarters have neither approved nor forbidden. In less skillful hands, this can easily end a career, but Petraeus went on to four stars and a job as chief of U.S. Central Command.

Cheney did well by it, too. He was the UNODIR vice president writ large. He did not defy the commander in chief, but he certainly did not sit around waiting for orders. If the president did not like the results, what was the worst that could happen? As Cheney understood very well, a vice president can't be fired.