November 6, 2007

A CONSTITUTIONAL LAW THOUGHT: I was working on the revisions for my Is Dick Cheney Unconstitutional? piece, which is moving through the Northwestern University Law Review’s editorial process with blinding speed, when something occurred to me. The conventional wisdom — summarized in this post — is that the Vice President presides over his own impeachment:

The Senate has the sole power to try impeachments. The Vice President is the President of the Senate. He presides. The Constitution provides for only one exception in cases of impeachment: “When the President of the United States is tried, the Chief Justice shall preside.” That’s because of the obvious conflict-of-interest of having the VP preside when the President is tried. But there’s no similar provision for having someone else preside if the Vice President is impeached.

This is generally treated as a drafting error. But if the Vice President is a legislative official, then it’s not an error at all — legislative officials aren’t civil officers of the United States, and hence aren’t subject to impeachment. Instead, they’re subject to expulsion by the house to which they belong, which in this case would be the Senate. This makes the impeachment problem go away, and perhaps even suggests that the Framers thought of the Vice President as primarily a legislative official. Of course, as I note in the piece — earlier draft is here — none of this produces results that the current Vice President is likely to find congenial.

UPDATE: Yeah, that shifts the drafting error to the provision saying that the VP is subject to impeachment. But still . . . Nah, it’s a loser. But the idea of floating half- quarter-baked ideas on the blog before publication is kind of a good one. At least, I like the reader mail it generated. Thanks!

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