The Place Of The President And Vice President Under The Nigerian And American Constitutions (Part 1) By Mike Ozekhome, SAN – TheNigerialawyer

INTRODUCTION

 This issue has become quite topical and
urgent because of the present rumblings (or, may I say, loud
silence) regarding the cold relationship between Vice – President
Yemi Osibanjo, SAN, and his boss, the President, Muhammadu Buhari,
GCFR. Most Nigerians point accusing fingers at a very powerful, but
“faceless” “cabal” within the
presidency, which even Aisha Buhari, the president’s wife, had also
specifically and openly complained about in the public. Is the Vice
President a disposable “spare tyre”, as many
prefers to refer to Vice Presidents or Deputy Governors, or is he
an indispensable gum that inexorably binds the government together?
We shall discover answers to these nagging questions in the course
of our luminous discourse of this vexed national issue.

VICE PRESIDENCY

Ordinarily, the word “vice” means corruption,
iniquity, debauchery, depravity, perversion, debasement,
degeneracy, lechery, immorality, indecency, etc. however,
“vice”, when used as the next person to a leader
or Head of a group means Deputy, backup, replacement,
second-in-command, regent, substitute, lieutenant and subordinate.
It is in this position of “Vice President” is
used.

THE VICE PRESIDENCY IN AMERICA

The Vice President of the United States, also known as
VPOTUS or Veep, is an important
position in the executive branch of the federal government in
America. The Vice President is probably best known as being
“a heartbeat away from the presidency”, meaning
that if a sitting President dies or is impeached, or is indisposed,
the Vice President takes over.

Hitherto, where the office of the Vice-President became vacant
by reason of death, resignation or other permanent incapacity, it
would remain so vacant until the next elections were held and a new
President and Vice-President were sworn in for a fresh term of
office. However, since the coming into force of the
Twenty-Fifth Amendment (which was ratified in
1967), where the office of Vice-President becomes vacant, the POTUS
has power to appoint a new Vice-President, subject to the
ratification by the Congress.

Unlike his Nigerian counterpart, the VPOTUS empowered by the
U.S. Constitution to perform far more expansive duties and
responsibilities – extending beyond even Executive arm of
Government.

The Constitution of America does not expressly assign the Vice
Presidency to any one branch, causing a dispute among scholars
about which branch of government the office belongs to: whether the
executive branch or the legislative branch.

However, constitutionally, the main responsibility of the Vice
President is the role of President of the Senate. Under
Article 1 Section 3 of the US constitution:

“The Vice President of the United States shall be
President of the Senate, but shall have no Vote, unless they be
equally divided.”

The Vice President of America as the Senate
President

As head of the Upper House of congress, the Vice President votes
on legislation or other motions only when Senators are deadlocked
50-50. This has occurred 243
times and involved 35 different Vice
Presidents. Whilst in the past the Vice President would
actively preside over Senate proceedings, nowadays it is customary
that they only get involved in order to break a tie.

In practice, the number of times vice presidents have exercised
this right has varied greatly. John C. Calhoun^[1] holds the record at 31
votes, followed closely by John Adams^[2] with 29.During his first
year in office (through January 24, 2018), Mike Pence cast eight
tie breaking votes; his predecessor, Joe Biden^[3], did not cast any during
his eight years in office.

As the framers of the Constitution anticipated that the vice
president would not always be available to fulfil this
responsibility, the Constitution provides that the Senate may elect
a president pro tempore^[4]
(or “president for a
time^[5]“) in order to maintain
the proper ordering of the legislative process. In practice, since
the early 20th century, the president of the Senate rarely
presides, nor does the President pro tempore. Instead, the
president pro tempore regularly delegates the task to other Senate
members. Rule
XIX^[6], which governs debate,
does not authorize the vice president to participate in debate, and
grants only to members of the Senate (and, upon appropriate notice,
former presidents of the United States) the privilege of addressing
the Senate, without granting a similar privilege to the sitting
vice president. Thus, Time^[7] magazine wrote in
1925, during the tenure of Vice President Charles G. Dawes^[8], “once in four years the
Vice President can make a little speech, and then he is done. For
four years he then has to sit in the seat of the silent, attending
to speeches ponderous or otherwise, of deliberation or humor.”

 THE VICE PRESIDENT OF AMERICA
PRESIDES OVER IMPEACHMENT TRIALS

As president of the Senate he may also preside over most of the
impeachment^[9]
trials of federal officers. However, whenever the president of the
United States is on trial, the Constitution requires that the
Chief
Justice of the United States^[10] must preside. This
stipulation was designed to avoid the possible conflict of interest
in having the vice president preside over the trial for the removal
of the one official standing between him and the presidency.
Curiously, the framers made no mention of who would preside in the
instance where the vice president is the officer impeached; thus
leaving a loophole whereby a vice president, as president of the
Senate, could preside at their own impeachment trial.

THE VICE PRESIDENT OF AMERICA AND THE POWER TO SUPERVISE
ELECTORAL VOTES COUNT

The Twelfth Amendment, like the superseded Article II clause,
provides that the Vice President, in his capacity as President of
the Senate, also presides over counting and presentation of the
votes of the Electoral College^[11]. This process occurs
during a joint
session of Congress^[12] held, as prescribed by
federal statute, on January 6 of the year following the
presidential election. It will next take place following the
2020
presidential election^[13], on January 6, 2021
(unless Congress sets a different date by law). In this capacity,
four Vice Presidents have been able to announce their own election
to the presidency: John Adams^[14], Thomas Jefferson^[15], Martin Van Buren^[16], and George H. W.
Bush^[17]. Conversely, John C.
Breckinridge^[18], in 1861. Richard Nixon^[19], in 1961, and Al Gore^[20], in 2001, all had to
announce their opponent’s election. In 1969, Vice President Hubert
Humphrey^[21] would have done so as
well, following his 1968 loss to Richard Nixon; however, on the
date of the Congressional joint session, Humphrey was in Norway^[22] attending the funeral
of Trygve Lie^[23], the first elected
Secretary-General^[24] of the United
Nations^[25]. The president pro
tempore presided in his absence.

On February 8, 1933, Vice President Charles Curtis^[26] announced the election
of his successor, House Speaker John Nance
Garner^[27], while Garner was
seated next to him on the House dais.

NOW THIS

THE AMERICAN PRESIDENT AND THE POWER OF SUCCESSION TO
THE PRESIDENCY

Article II, Section 1, Clause 6^[28] stipulates that the
vice president takes over the “powers and duties” of the presidency
in the event of a president’s removal, death, resignation, or
inability. Even so, it does not clearly state whether the vice
president became President of the United States or simply acted^[29] as president in a case
of succession. Debate records from the 1787 Constitutional
Convention, along with various participants’ later writings on the
subject, show that the framers of the Constitution intended that
the vice president would temporarily exercise the powers and duties
of the office in the event of a president’s death, disability or
removal, but not actually become President of the United States in
their own right.

AND THIS

This understanding was first tested in 1841, following the death
of President William Henry
Harrison^[30], only 31 days into his
term. Harrison’s vice president, John Tyler^[31], asserted that he had
succeeded to the office of president, not just to its powers and
duties. He took the presidential oath of office^[32], and declined to
acknowledge documents referring to him as “Acting President.”
Although some in Congress denounced Tyler’s claim as a violation of
the Constitution, he adhered to his position. Tyler’s view
ultimately prevailed when the Senate and House voted to acknowledge
him as president, setting a momentous precedent for an orderly
transfer of presidential power following a president’s death, one
made explicit by Section 1 of the Twenty-fifth Amendment^[33] in 1967. In total, nine
vice presidents have succeeded to the presidency intra-term. In
addition to Tyler, they are Millard Fillmore^[34], Andrew Johnson^[35], Chester A.
Arthur^[36], Theodore
Roosevelt^[37], Calvin Coolidge^[38], Harry S. Truman^[39], Lyndon B.
Johnson^[40], and Gerald Ford^[41]. (To be continued).

THOUGHT FOR THE WEEK

“Don’t interfere with anything in the Constitution. That must be
maintained, for it is the only safeguard of our liberties.”
(Abraham Lincoln).

LAST LINE

I thank numerous readers across the globe for always keeping
faith with the Sunday Sermon on the Mount of the Nigerian Project,
by Chief Mike Ozekhome, SAN, OFR, FCIArb., Ph.D, LL.D. I enjoin you
to look forward to next week’s bumper treatise.