Posted by Todd Zywicki:
Does the VP Have A Legislative Role?
http://volokh.com/archives/archive_2008_09_28-2008_10_04.shtml#1223052456
One of the most bizarre (to use Sen. Biden's term) episodes during the
debate was Biden's response to the question of whether the
Vice-President has a legislative role. [1]His response:
IFILL: Vice President Cheney's interpretation of the vice
presidency? BIDEN: Vice President Cheney has been the most
dangerous vice president we've had probably in American history.
The idea he doesn't realize that Article I of the Constitution
defines the role of the vice president of the United States, that's
the Executive Branch. He works in the Executive Branch. He should
understand that. Everyone should understand that.
And the primary role of the vice president of the United States of
America is to support the president of the United States of
America, give that president his or her best judgment when sought,
and as vice president, to preside over the Senate, only in a time
when in fact there's a tie vote. The Constitution is explicit.
The only authority the vice president has from the legislative
standpoint is the vote, only when there is a tie vote. He has no
authority relative to the Congress. The idea he's part of the
Legislative Branch is a bizarre notion invented by Cheney to
aggrandize the power of a unitary executive and look where it has
gotten us. It has been very dangerous.
This statement contains several errors. Glenn Reynolds sums it up (I
don't think it necessary to belabor the point):
And, yes, the VP's legislative duties are in Article I. But that
cuts precisely against the point that Biden was trying to make.
Here's what Biden said: "Vice President Cheney has been the most
dangerous vice president we've had probably in American history.
The idea he doesn't realize that Article I of the Constitution
defines the role of the vice president of the United States, that's
the Executive Branch. He works in the Executive Branch. He should
understand that. Everyone should understand that. . . . The only
authority the vice president has from the legislative standpoint is
the vote, only when there is a tie vote. He has no authority
relative to the Congress. The idea he's part of the Legislative
Branch is a bizarre notion invented by Cheney to aggrandize the
power of a unitary executive and look where it has gotten us. It
has been very dangerous." This is wong on multiple levels at once.
Article I -- which deals with the legislative, not the Executive
branch, says: "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 presides over the Senate by
right, whenever he/she wants to, regardless of whether there's a
tie vote.
What's more, Vice Presidents, until Spiro Agnew, got their offices
and budgets from the Senate, not the Executive Branch. The
legislative character of that office is traditional -- treating the
VP as part of the Executive Branch, and a sort of junior
co-President, is a recent and, to my mind, unwise innovation.
That's discussed at more length in this article from the
[2]Northwestern University Law Review.
More here:
Biden is just plain wrong about this. First of all, Article I
defines the legislative branch, including its composition and the
scope of its powers and the powers and privileges of its members.
Article I, sec. 3, clause 4 is the first time the Vice President is
mentioned in the Constitution. It gives the Vice President an
important role to play:
The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.
The Constitution goes on to direct the Senate to chose a President
pro tempore to preside over the Senate in the VP's absence. Though
it is not explicitly stated, the VP is also the President of the
Senate during all trials of impeachments other than trials of the
President. In other words, when Biden says that the VP has "no
authority relative to the Congress" the truth is actually that the
VP has a special authority, reserved to no other unless the VP
chooses to let another wield it.
Article II does not extend to the VP any executive powers. Sections
2 and 3 specifically grant duties and powers to the President; the
VP goes unmentioned. In fact, Article II provides for compensation
for the President, but doesn't direct the VP to receive anything!
So far today, I've seen no mention of this gaffe in any of the
mainstream media coverage. Surely if Palin had stated that the
Executive Branch is defined in Article I of the
Constitution--especially in such an imperial tone--we would've heard
about it. Moreover, Biden apparently believes that somewhere in the
Constitution the duties of the vice president are expressly and
extensively described. So even if he actually knew the difference
between Article I and Article II it seems quite evident that he has
not the faintest clue as to what the Constitution actually says or
does not say about the powers and responsibilities of the vice
president.
From watching judiciary committee hearings on judicial nominations
over the past two decades I had always assumed that Biden just didn't
really care about the text of the Constitution. Now I learn the reason
he doesn't care is that he apparently doesn't even know what the
Constitution says. Although, somewhat frighteningly, he seems
extremely confident that he does know what it says.
The larger lesson, of course, is that if one plans to provide a
condescending lecture on consitutional law--i.e., Dick Cheney "should
understand that"--you really really need to make sure you know what
you are talking about.
References
1. http://www.cnn.com/2008/POLITICS/10/02/debate.transcript/
2.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1029363&rec=1&srcabs=1017163
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