Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development

Authors

Roy E. Brownell II

Document Type

Article

Abstract

(Excerpt)

Ultimately, this Article concludes that, while Vice Presidents have become embroiled in ever more frequent contests over information, VPP has not been officially invoked. Nonetheless, episodes involving Vice Presidents Humphrey, Agnew, Rockefeller, and Cheney all to varying degrees seem to have implicitly recognized that such a privilege exists; in this vein, they would appear to have “reserved the right” for future Vice Presidents to make such an assertion. At a broader level, the growing frequency of these clashes over the past several decades demonstrates the growing significance of the vice presidency over time and the position’s greater involvement in the executive branch. Should this overall trend toward enhanced vice presidential power continue, it is quite possible that Vice Presidents could build on these proto-VPP precedents and actually invoke the doctrine.

Next, the Article will turn to evaluating potential arguments in favor of VPP and possible counterarguments against it. It will analyze constitutional structure as well as case law and past practice. While case law and past practice generally support VPP, theoretical arguments based on structural considerations are even more compelling, especially in light of other constitutional officers having comparable constitutional privileges. After the pros and cons of VPP have been weighed, this Article concludes that the arguments in favor of a privilege of limited scope are more persuasive than those against recognition of such a power. The doctrine, however, is likely to exist only to the extent it involves the Vice President’s narrow textual responsibilities: presiding over the Senate and breaking tie votes; preparing for and helping to make determinations about presidential inability; and preparing for succession. As such, VPP is a composite privilege reflecting both the Vice President’s Article I duties and his responsibilities under the Twenty-Fifth Amendment. For the Vice President to invoke a constitutional privilege beyond these narrow confines runs the risk of creating a vice presidential executive privilege, which would undermine the President’s constitutional role as the head of the executive branch and the prevailing view that only the President may invoke executive privilege.