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Does the VP Have A Legislative Role?

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. 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 beyond his crisp analysis):
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 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.

Update:

More analysis along the same lines from Shannen Coffin , Matthew Franck, and Michael Barone (who observes that you'd think that after 35 years in Congress, Joe Biden would know which Article applies to the legislature).

Update:

On re-reading, I see that my intended snarky joke comment that Biden doesn't know what the Constitution says came off more sarcastic than snarky. Sorry if it came off the wrong way. We can file this under an "attempt at a lame joke" as well.

James Blakey (mail):
I always thought John C. Breckenridge was the most dangerous VP in US History.
10.3.2008 2:15pm
pete (mail) (www):

I always thought John C. Breckenridge was the most dangerous VP in US History.


Aaron Burr is also in contention for that spot. He lead a revolt against the federal government and was put on trial for treason, not to mention that he killed Alexander Hamilton.
10.3.2008 2:24pm
GSC:
I'm going to (somewhat) defend Biden here. First, I too was struck by his seeming to say that beacuse the VP is mentioned in Article I which is the Executive. Obviously, Article I is not the Executive Branch. I think (and I may be overreading this) he was trying to make two points: (1) the VP's power from the Constitution is defined in Article I (although I agree that this undermines his argument that this makes the VP part of the executive branch) and (2) his only defined function is to vote when the Senate is evenly divided. This second point is, I would argue, correct as a matter of history. Thus, his additional point that the VP's primary role is to support the president derives not from the text of the Constititution but historical practice (although some obvious exceptions exist, John C. Calhoun being the most notable); so too with his ignoring of the fact that the VP presides over the Senate. Since John Adams was VP, this role has been nominal at best, so again history provides a powerful support that the VP's legislative role is quite small. There were certainly problems with this answer (although try and parse Palin's answers--good luck), but this debate is going to appeal to even fewer swing voters than will be swayed by the New Yorker's endorsement of Obama.
10.3.2008 2:24pm
Kurt M. (mail):

This discussion during the debate made me wonder : how much power could the Vice President wield over the senate if they really wanted to? I mean, the rules have pretty much written the Vice President out, but if I am Vice President, and therefore the presiding officer of the Senate, can't I just ignore the rules and go for total domination?

Could the Vice President become as "powerful" as the Speaker of the House? Perhaps even MORE powerful, because if the Speaker goes over the line, the House can change who has that title - not so much for the President of the Senate. Can't the VP just say "I am in charge, and this is how it is going to be; welcome to my world, you are just living in it?" to the Senate?
10.3.2008 2:25pm
A.S.:
So far today, I've seen no mention of this gaffe in any of the mainstream media coverage.

To be fair to the media, it has not been mentioned on this blog - written by more than a dozen law professors! - until just now (except in comments, of course).

In fact, it is worse than what Prof Zywicki says. Biden not only is in the Senate (which, alone, should be reason enough to undersand the role of the VP as President of the Senate), and not only is on the Senate Judiciary Committee, but claims to be a Constitutional Law professor! God help his students.
10.3.2008 2:25pm
A.S.:
but if I am Vice President, and therefore the presiding officer of the Senate, can't I just ignore the rules and go for total domination

I think that Senators can overrule the presiding officer on a majority vote, no? At least, that's what I recall from discussion of the "nuclear option" a few years ago.
10.3.2008 2:28pm
Jim Hu:
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.

Let's generalize this principal.
10.3.2008 2:30pm
T Gracchus (mail):
I take it then that Prof. Zwicki thinks that disclosure to the VP must be waiver of Executive Privilege (as the VP is apparently not in the Executive) and that the Senate could by its rules require access to all Vice Presidential papers.
10.3.2008 2:30pm
Bored Lawyer:
Biden's comment is more bizarre than that.

1. What does it mean that Cheney "has been the most dangerous vice president we've had probably in American history."

Whatever is "dangerous" about Cheney -- which I presume means his large role in American foreign policy, especially in Iraq and the Middle East, and policy on the War on Terror -- has nothing to do with his position as President of the Senate. Everything that Cheney has done in this area has been at the pleasure and behest of the President -- who heads the Executive branch and was elected to that position. If President Bush wanted, Cheney could have spent all his time attending funerals and cutting ribbons at opening ceremonies.

Whatever one thinks about Cheney's policy positions and wielding of power, one must concede that these had little, if anything, to do with Cheney's position in the Legislative branch.

2. Cheney's theory that the Vice-Presidency is part of the Legislative branch (which seems to fit a basic reading of the Constituion, the VP's role is to preside over the Senate, case a vote if there is a tie, and wait for the President to die) has nothing to do with the "unitary Executive" theory.

So Biden just engaged in meaningless bloviating on this one, AFAIC.
10.3.2008 2:31pm
Franklin Drackman:
At least Biden didn't bring up Cheney's hot lesbian daughter like John Edwards did. Seems even more creepy 4 years later when we know more about Edwards real personality.
10.3.2008 2:34pm
Nunzio:
Also, under the 12th Amendment, the Vice-President has to open up the certified votes of the electors before both houses of Congress.

This seems to be a "ministerial" task, although the Constitution places this is in the hands of the VP with the Congress as a witness. It doesn't state explicitly that the VP has to count the votes: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall be counted"

So H.W. Bush presided over the tabulation of his victory in 1988 and Al Gore presided over the tabulation of his defeat in 2000.
10.3.2008 2:34pm
MarkField (mail):

I always thought John C. Breckenridge was the most dangerous VP in US History.


A good choice. Personally, I'd go with Andrew Johnson. John C. Calhoun is also a candidate, as is Burr.
10.3.2008 2:37pm
Nate in Alice:
A better answer would have been:

"Well gosh-darn'it, I want to make sure that that dog-gone VP slot has more power, especially for Alaskans, and the productive things we Alaskans do, ya'know (wink wink)."
10.3.2008 2:37pm
PC:
So Biden just engaged in meaningless bloviating

This should not come as a shock to anyone.
10.3.2008 2:41pm
Adam J:
He certainly screwed up here, but its hardly red meat for the press- which is why they're uninterested. Procedural Constitutional issues are not something that excite the average citizen. And compound that with the fact that all VPs do legislatively these days is the tie-breaker vote, irregardless of the text of the Constitution. Cheney wasn't interested in changing this status quo, he was simply exploiting the Constitution to avoid oversight.
10.3.2008 2:43pm
SFC B (mail) (www):
This was all actually a brillint bit of debate jujitsu by Senator Biden. He knew, full well, exactly what he was saying. When Palin was given a chance to rebut she didn't and instead talked about how in Alaska they derive most of their energy for their homes from penguins or something. This shows her total ignorance of the details of the Constitution and just how unready she is to lead group of people hunting the wild Alaskan Wooly Mammoth, let alone the United States of America.
10.3.2008 2:44pm
Kurt M. (mail):
but if I am Vice President, and therefore the presiding officer of the Senate, can't I just ignore the rules and go for total domination

I think that Senators can overrule the presiding officer on a majority vote, no? At least, that's what I recall from discussion of the "nuclear option" a few years ago.


I am pretty sure this is correct, and it is the same in Roberts Rules of Order. But, if we are looking at general policy (not a specific instance), it would probably get really tiring to overrule the President of the Senate all of the time. Think about it : perhaps you can control committee assignments, decide who sits on what committees in what roles, direct bills to this committ or that, refuse to bring a bill to a vote, insist a bill come to a vote, etc, etc, etc. I think there is potential here for power if someone wants it.

Surely there is a law review already on this kind of a hypothetical that I could read? If I can bring a dark reign of power onto the Senate, that could make VP a lot of fun!
10.3.2008 2:44pm
Buying Concordes to feed the poor:
Franklin D- she's "hot"? Not even close.
10.3.2008 2:46pm
donaldk2 (mail):
Kurt M: The potential of the Vice President to influence the Senate is covered in Master of the Senate, by Robert Caro.

Johnson thought that just maybe he could be as influential as he had been as Majority Leader. He quickly found out he was mistaken, and stopped attending the Democratic caucuses.

He got the message: Lyndon, get lost.
10.3.2008 2:51pm
Kurt M. (mail):
Kurt M: The potential of the Vice President to influence the Senate is covered in Master of the Senate, by Robert Caro.

Sounds interesting - I'll check it out. Thanks for the pointer!

Perhaps my visions of dominating the Senate with an iron fist as VP will now have to come to an end :(
10.3.2008 2:56pm
Elliot123 (mail):
Does this mean Biden is a knucklehead?
10.3.2008 2:57pm
Nunzio:
Palin doesn't seem to know the Constitution very well. But since Biden seems to pride himself on his knowledge of this, he has come up woefully short as well.
10.3.2008 2:58pm
Oren:
Whatever one thinks about Cheney's policy positions and wielding of power, one must concede that these had little, if anything, to do with Cheney's position in the Legislative branch.
He has specifically claimed exemptions from Congressional oversight aimed at the executive branch. Specifically, he has claimed that he is not answerable to the ISOO regarding his protection of classified information.

He has also bizarrely claimed exemption from the Presidential Records Act (USC 44 2201-2207). That claim was roundly rejected not too long ago.
10.3.2008 3:01pm
SMcElhaney (mail):
By refusing even to attempt to read Senator Biden's comment thoughtfully and with a view towards what may be right and what may not be right, Todd's post does a disservice to this blog, which I visit for thoughtful commentary from a libertarian/conservative perspective.

Think about it. Biden is a senator, he does committee work, holds or goes to hearings, and votes a lot. Vice Presidents don't. They don't engage in the day-to-day business of legislating. Thus Biden is correct to say that the only authority the vice president has from the legislative standpoint is to vote when there is a tie. Given that the tradition of the Senate (a very traditional body) is for the VP not actually to preside (except in rare circumstances) pointing out the rare instances when a VP is present aren't important practically. Shrill posts should not be the currency of this blog.
10.3.2008 3:12pm
Bill Poser (mail) (www):

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.


I think that your interpretation of this as claiming that Article I deals with the Executive Branch is incorrect. The problem is that the first sentence is ungrammatical and presents problems of interpretation. In particular, it isn't clear what the antecedent of "that" is in "that's the Executive Branch". However, there's no good reason to take it to be "Article I". At least as plausible, and I think clearly what Biden meant in light of the clarification provided by "He works in the Executive Branch", is that the antecedent of "that" is "role". In other words, in a somewhat disjointed way, Biden is combining two thoughts: (a) that the only place in which the VPs role is defined is in Article I, which is true; and (b) that the VP is a member of the Executive Branch, which is also true. Granted, it is the kind of somewhat garbled statement that almost everyone occasionally makes in extemporaneous speech, but I think that it is wrong-headed to take it to indicate that Biden doesn't know that Article I deals with the Legislative Branch.
10.3.2008 3:15pm
Bob in SeaTac (mail):
Poser,

I understand what you're saying: No matter how stupid and mistake filled Biden's remarks are, he is excused because he knows what he's doing and is smart!

But Palin, of course is stupid, so she has no excuse for any mistake.

Give me a break from your interpretation.
10.3.2008 3:19pm
Bob from Ohio (mail):

Shrill posts should not be the currency of this blog.


Why not, the other billion blogs use it.

(Except for Ron Paul's blog of course.)
10.3.2008 3:20pm
markH (mail):
Biden's answer was in response to Palin's statement:

"no. Of course, we know what a vice president does. And that's not only to preside over the Senate and will take that position very seriously also. I'm thankful the Constitution would allow a bit more authority given to the vice president if that vice president so chose to exert it in working with the Senate and making sure that we are supportive of the president's policies and making sure too that our president understands what our strengths are"

Somewhere in this jumble of words, Palin suggests that the constitution is flexible regarding the amount of authority available to the VP in the senate. Biden says no, referring to Article 1, the VP may cast a vote in the case of a tie.
10.3.2008 3:37pm
Angus:
What this tells me:

Biden has read the Constitution, but doesn't fully understand it.

Palin has never read the Constitution.

Can I have door #3? If I have to, I'll at least take the literate one.
10.3.2008 3:38pm
Michael J.Z. Mannheimer (mail):
As I mentioned in a comment on another thread, it makes perfect sense that the framers conceived of the Vice-President as essentially a Legislative Branch official. Whoever came in second in the race for President would become Vice-President, and even before they recognized that a two-party system would emerge, they probably realized that the runner-up would likely be somewhat antagonistic with the winner. By the time it was clear that a two-party system would predominate, the Twelfth Amendment was needed to facilitate the election of the President and Vice-President from the same party. The question is whether this also changed the character of the Vice-President from being a Legislative Branch official to being an Executive Branch official, or someone that straddles both branches.
10.3.2008 3:58pm
Christopher Cooke (mail):
Biden should have said that Cheney was using this legal argument --that the VP is part of the legislative branch--to avoid a law that would require him to preserve and eventually disclose records to the American people, and that he, Biden, did not think it appropriate to do so. That is what I would have said.
10.3.2008 4:00pm
Oren:
CC, that would be correct from a logical point of view but it would be crap rhetorically. The point of a debate isn't to make the most logical argument, it's to convince the largest number of people (and conversely, not to piss any of them off).
10.3.2008 4:12pm
DiverDan (mail):
Joe Biden, 35 years in the Senate, Chairman of the Senate Judiciary Committee, and a teacher of Constitutional Law, and yet he doesn't appear to know that the V.P. is President of the Senate, that the V.P.'s salary &budget are set by the Senate, and that the V.P.'s only Constitutional duties are with the Legislative Branch. Would someone please explain to me (if you can) why this is not overwhelming proof that Joe Biden is simply too stupid to be Vice President?
10.3.2008 4:36pm
Ryan Waxx (mail):
If your definition of Palin having never read the constitution is her saying that the president can delegate his powers to whomever he likes, including the VP, then it is YOU who are ignorant.

Meanwhile the "Article I vs Article II" is a concrete factual error... but hey, lets all ignore it because Biden means well.

But hey, there are nonexistent points to be scored so carry on whining.
10.3.2008 4:46pm
Chuck Hannah (mail):
Completely off point, Adam J pushed one of my big, red buttons. Irregardless is not a word, it is a tautology(?). I am not a grammar policeman, but I really enjoy VC's more reasoned approach to saying what you mean, rather expecting the reader to "know" what you really intended to say.
10.3.2008 5:01pm
HC1 (mail):
Aaron Burr was the most dangerous VP in our history. What Cheney has done and attempted to do pales in comparison to the actions undertaken by Burr.
10.3.2008 5:06pm
Sagar (mail):
"What this tells me:

Biden has read the Constitution, but doesn't fully understand it.

Palin has never read the Constitution.

Can I have door #3? If I have to, I'll at least take the literate one."


Someone who reads a document in his first language but doesn't understand it is "literate" enough for you, now?

What this tell me is you will "take" Obama/Biden no matter what. No need for the rest of your BS.
10.3.2008 5:10pm
Angus:
What this tell me is you will "take" Obama/Biden no matter what. No need for the rest of your BS

Wow, I blush. Thank you for the compliment! Me, a Beautiful Scholar!
10.3.2008 5:29pm
don (mail):
"V.P.'s salary &budget are set by the Senate"

so is the President's salary and budget.
10.3.2008 5:41pm
one of many:
Don: so is the President's salary and budget.

No.

----

Actually Palin's answer shows a knowledge of the constitution and history of the role of the VP. The constitution also provides that the VP presides over the senate although the senate selects a president pro tempore for those occasions in which the VP chooses not to preside over the senate. The last 30 years or so have had VPs who have not spent much time on their role as president of the senate, but in the whole history of the US, VPs have tended make it their primary responsibility.
10.3.2008 5:55pm
wfjag:

Does this mean Biden is a knucklehead?

No Elliot. What's happened is that a Joe Biden from a parallel universe has slipped through. In his universe, in 1929 President FDR addressed Americans on TV, Article I of the Constitution establishes the Executive Branch, U.S. and French Troops defeated Hezbolah in Lebanon so that NATO forces could deploy there, etc. All those "gaffs" are only in your troubled imagination. The Mother Ship is waiting to take us all home.
10.3.2008 6:53pm
Christopher Cooke (mail):

Aaron Burr was the most dangerous VP in our history. What Cheney has done and attempted to do pales in comparison to the actions undertaken by Burr.



In defense of Aaron Burr, may I point out that he was found not guilty. Also, history is written largely by the winners, so we mainly have Thomas Jefferson's account of Burr's actions.
10.3.2008 7:56pm
MarkField (mail):

In defense of Aaron Burr, may I point out that he was found not guilty.


He was, though given Marshall's legal rulings, the jury could hardly have done anything else.

That doesn't mean I think Burr was guilty or that Marshall was entirely wrong. It just means I'm pretty suspicious of Burr.
10.3.2008 10:57pm
Roger Schlafly (www):
What this tells me:
Biden has read the Constitution, but doesn't fully understand it.
Palin has never read the Constitution.
At least in Palin's case, there is hope that she will read the Constitution and understand it. There is no hope that Biden will ever understand the Constitution.
10.4.2008 1:28am
Minotauro (mail):
This was all actually a brillint bit of debate jujitsu by Senator Biden. He knew, full well, exactly what he was saying. When Palin was given a chance to rebut she didn't and instead talked about how in Alaska they derive most of their energy for their homes from penguins or something. This shows her total ignorance of the details of the Constitution and just how unready she is to lead group of people hunting the wild Alaskan Wooly Mammoth, let alone the United States of America.



Except for a tiny handfull of Article I enthusiasts (probably less than 0.00001% of the 70,000,000 viewers), Biden's absurd comments about the constitutional role of the VP were unintelligable. Such "brilliant" debating tactics might be effective in front of a panel of the Federalist society, but in a televised debate? Please.
10.4.2008 9:57am
jrose:
Yes, Biden's comments were a confusing mess. But, underlying them was a legitimate point.

Cheney has argued he is part of the executive branch to claim executive privilege. But, he has also argued he is part of the legislative branch to avoid being subject to executive orders.

That's the source of Biden's outrage.
10.4.2008 10:21am
MJG:
Biden messed up his answer. He had a big avenue to drive a truck of a rebuttal answer through and he was wobbly with his driving, scraping the edge. His Article I/Article II distinction was shaky--he really might have meant Article II, it's just not clear.

But the upshot was that Cheney was blowing smoke and Palin was hearkening back to what he had said. The irony of this thread, and from some of the comments, is I thought the Volokh conspiracy already addressed this (and in far more humor, from Orin Kerr):

Washington Post Profiles Influential Legislator Dick Cheney

and

[Onion, I mean NYTimes reports] Vice Presidency in the Legislative Branch for Purposes of Executive Oversight, OVP Claims
10.4.2008 1:13pm
Xrlq (mail) (www):
MJG: if Biden had simply said "Article I" while meaning "Article II," that would have been a relatively minor error on the level of a typo. But there's nothing in Article II, or any other part of the Constitution, that would have saved his answer. Besides, his reference to casting a tie-breaking vote makes clear he really did mean Article I.
10.4.2008 4:37pm
Thales (mail) (www):
I did not see the debate, but I think Biden is inartfully referring to Cheney/Addington's preposterous claim of a year or so ago that the office of the vice presidency occupies a special zone outside of the executive branch because of its limited role in the legislature, and thus is not subject to the archival regulations. But this strains credulity, of course, because Addington/Cheney are also forceful advocates of increasing the scope of executive (including VP) power, through the doctrine that is sometimes misleadingly (in an academic sense) called the "unitary executive theory." See link/below text for more details.

link

_________________
Addington: Vice President Isn’t Part Of Executive Branch, ‘Attached’ To Legislative»

In a protracted battle with the National Archives last year, Vice President Dick Cheney sought to avoid submitting records to the archives by claiming that the office of the vice president is not part of the executive branch. During today’s House Judiciary Committee hearing, Cheney’s chief of staff David Addington reasserted that position, declaring the vice president’s office to be a separate entity that “attached” to the legislative branch:

REP. STEVE COHEN (D-TN): Mr. Addington, what branch are we in?

ADDINGTON: Sir, perhaps the best 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. […]

COHEN: So he’s a member of the legislative branch?

ADDINGTON: No I said he’s attached to the latter.
10.5.2008 4:28pm
Thales (mail) (www):
I now see a couple of other commenters beat me to that point.
10.5.2008 4:29pm