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Was Sarah Palin Right about the Vice Presidency?

Glenn Reynolds of Instapundit graces the NYT op-ed page today with a short piece on the nature of the vice presidency.

Article I of the Constitution, which describes the authority of the legislative branch, says that "the vice president of the United States shall be president of the Senate, but shall have no vote, unless they be equally divided." Aside from the job of replacing a president who dies or is unable to serve, the only vice presidential duties that are spelled out in the Constitution are legislative in character.

But if the vice president is a legislative official, then the exercise of executive power by the vice president raises important constitutional questions related to the separation of powers. The Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power. The Court would likely dub this a "political question" that is beyond its purview, but Congress is empowered to remedy this sort of thing by legislation.

And Congress should do just that: pass a law to prohibit the vice president from exercising executive power. Extensive vice presidential involvement in the executive branch — the role enjoyed by Dick Cheney and Al Gore — is not only unconstitutional, but also a bad idea.

For Reynolds' extended analysis of the vice presidency (and an answer to the question "Is Dick Cheney Unconstitutional?"), see this paper on SSRN.

UPDATE: Over on Bench Memos, Matt Franck and Adam White are unconvinced.

Soronel Haetir (mail):
Even if Congress were inclined to pass such a law, I imagine that the courts would leave it up to Congress to enforce through impeachment.

An interesting question along that line, could the Senate use the expulsion power against the VP?
10.27.2008 1:47pm
loki13 (mail):
Of course, this whole mess can be summed up easily:

The VP slot was originally designed to be awarded to somewhere (ignoring the issues of factions and parties for the time being) was a competitor or rival of the individual who ran the Presidency.

Under that theory, there was no SOP problem when the VP acted within the Senate.

However, now that it is a straight ticket, it raises serious SOP concerns. This has been remedied by two things- first, the use of the Senate's Article I powers to set their own rules to effectively bypass the VP (see the permanent President pro tempore in 1890). Second, the tradition that the VP would not be greatly involved in the Senate. This is a tradition that arguably stretches back to George Clinton (1805), and has certainly solidified in modern times.

However, it is not set in stone. The idea Cheney is using is a form of constitutional hardball- pushing the boundaries of what is permissible in a way that defies our understandings and upsets the current balance of power between the executive branch and the legislative branch. The only way, I believe, for the VP to be accorded full legislative powers is to return to a system where it is not a straight party vote and the VP would, arguably, serve some function to check the President from within the Senate. Since that didn't work too well, the VP as extension of President under the executive branch that we have used for over one hundred years seems like a pretty good system.

And I'm sure that's exactly the thought process Sarah Palin went through.
10.27.2008 1:50pm
PJens:
In the debate, Palin understood and spoke of the role of Vice President with better understanding than Senator Biden did.
10.27.2008 1:50pm
loki13 (mail):
chock full of typos- first sentence:

somewhere = someone
10.27.2008 1:51pm
cboldt (mail):
1) Why would a law be required? If such a law existed, how would it be any more effective/powerful than the Constitution? Why not just sue for constitutional violation.
2) What, precisely, executive powers have been exercised by VP's Gore and Cheney?
10.27.2008 2:00pm
Anderson (mail):
I think Reynolds's proposition has some merits -- which I rarely think about anything he says -- but I still can't agree.

Here's why. The Presidency is a much more powerful and complex office than it used to be. It's important for the VP to be involved in the executive branch, just so's he has some idea what's going on. I hardly think that FDR's keeping Truman out of the loop was a good idea.

If anything, Congress should legislate that the VP is by law entitled to attend Cabinet meetings. That would be more pertinent.

Just imagine: McCain wins, and Palin is barred by law from participating in any executive activities ... until McCain keels over a year later, and Palin is sworn in, and then gets to find out how the whole President thing works.
10.27.2008 2:04pm
Anderson (mail):
Why not just sue for constitutional violation.

As the quote says, "political question." And standing would be a problem. Just ask the guy who was suing Obama for allegedly not being a natural-born citizen -- his suit just got tossed on standing.

A bigger problem for Reynolds's idea would be that if the Executive ignored it, good luck getting the SCOTUS to take the case. Congress would have to fall back on the power of the purse, i.e., a political loser.
10.27.2008 2:08pm
Angus:
The Constitution establishes no authority of the Vice President over the Senate. Just the vote in case of a tie. The Senate sets its own rules and can Constitutionally write the Vice President completely out of presiding and policy-making, reducing "President of the Senate" to a ceremonial role only.

In short, the VP's Constitutional role is whatever the Senate allows it to be.
10.27.2008 2:19pm
cboldt (mail):
-- As the quote says, "political question." And standing would be a problem. --
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I don't see how a statute cures that infirmity.
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-- Just ask the guy who was suing Obama for allegedly not being a natural-born citizen -- his suit just got tossed on standing. --
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Rightfully so. Likewise with the suit challenging McCain's status as a natural-born citizen. The issue isn't ripe, for one thing. Statutory provisions combined with the constitution describe how to decide questions of constitutional eligibility, and that process happens after the election.
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-- A bigger problem for Reynolds's idea would be that if the Executive ignored it, good luck getting the SCOTUS to take the case. --
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But Congress's toes aren't being stepped on. They are fully empowered to legislate. What are their "damages?"
10.27.2008 2:20pm
Snaphappy:
What, precisely, executive powers have been exercised by VP's Gore and Cheney?

I believe Cheney declassified certain information about Valerie Plame so that Novack could write a column slamming Joe Wilson, right?
10.27.2008 2:21pm
cboldt (mail):
-- The Constitution establishes no authority of the Vice President over the Senate. Just the vote in case of a tie. The Senate sets its own rules and can Constitutionally write the Vice President completely out of presiding ... --
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The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

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Impossible to write that out with a statute. Agreed that Senate rules can render "presiding" to be of more or less power. I'll say, as an amateur Senate watcher, that if the Senate were run in such a way that the Majority leader didn't get the first two or three cracks at the moment a bill is introduced, and the the majority leader and the presiding officer as equals (or even adversaries), there would be a radical change in Senate procedure.
10.27.2008 2:27pm
cboldt (mail):
-- I believe Cheney declassified certain information about Valerie Plame so that Novack could write a column slamming Joe Wilson, right? --
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Maybe, and certainly the declassification authority was asserted as rightfully in the hands of the VP.
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Cheney has also asserted executive privilege against testifying. That claim can be adjudicated.
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More?
10.27.2008 2:31pm
Oren:

What, precisely, executive powers have been exercised by VP's Gore and Cheney?

There are actually numerous stories about Cheney given direct orders to military personnel under authority of the CinC. The extent to which the CinC (not the President) can delegate authority is unclear to me.
10.27.2008 2:33pm
Soronel Haetir (mail):
I would see a better argument as the simple "The VP has whatever executive role that the President chooses to allow", somewhat like a super-Cabinent member with the election serving to bypass the Senate confirmation process.

Certainly I would say that describes recent actual practice even if such a role is not mandated.
10.27.2008 2:36pm
loki13 (mail):
cboldt-

The part of Article I you cite is n conflict with:

Each House may determine the rules of its proceedings . . .

As the President of the Senate (VP) has no powers defined other than tiebreaking, then any powers may be assigned elsewhere (e.g. the President pro tempore).

There's a fair amount of analysis that goes into this, but it start with the basic proposition that I outlined above:

When Article I was written, it was assumed that the VP would be a rival of the President (ignoring issues of factionalism). The 12th Am. upset this balance without a corresponding change in the other parts of the Constitution. However, the political process evolved to accommodate the reality, as evidenced by the last VP who had a powerful rule in the Senate was Aaron Burr (1800-1804), while from George Clinton (1805) on the VP had a largely ceremonial role.

The 12th Am. was ratified mid-year 1804, to take effect for the next election. Notice the timing.
10.27.2008 2:42pm
Snaphappy:
Every time Section 3 of the 25th Amendment is invoked, the Vice President discharges all the powers and duties of the President as Acting President. I don't know if this ever happened for Bush, but it did for Clinton once or twice I think.
10.27.2008 2:42pm
Oren:
Snaphappy, S3 of the 25A was invoked twice when W needed total anesthesia to remove some colon polyps.
10.27.2008 2:45pm
Dave N (mail):
The reality is that the Vice President is neither fish nor fowl--the Constitution gives it few responsibilities. The office itself is mentioned only twice in the original 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 Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.
Article 1, Section 2. And here:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:
Article 2, Section 1 (as a side note, the drafters obviously had a problem deciding if a hyphen was needed between the words Vice and President).

The 12th Amendment created the current "running-mate" model, since the President and Vice President are elected on the same ticket. The 25th Amendment actuallly clarified under what circumstances the Vice President could become Acting President (a provision Vice President Thomas Marshall would likely have used had it been in existence and provided for replacing the Vice President "mid-term" when that office became vacant.

The reality is that the Vice Presidency has always been what the President made of it. In the 19th Century, I am aware of exactly two Vice Presidents who exerted any kind of power while holding that office: Martin Van Buren, who was already one of Andrew Jackson's trusted lieutenants, and Garrett Hobart, who was a confidante of William McKinley's (an interesting historical "what if" involves Hobart, since had he not died in 1899, Theodore Roosevelt would not have become Vice President in 1901).

In the 20th Century, the "modern" Vice Presidency can be traced to Jimmy Carter, who used Walter Mondale as a senior advisor. Subsequent Presidents have used the Mondale model, though some more so than others (the two Presidents Bush provide the greatest contrast in this respect).
10.27.2008 2:50pm
Zywicki (mail):
Palin may not have been right, but Biden was most definitely wrong (on the substance as well as which Article is which).

One executive role the VP has played from time to time has been to coordinate policy within the Executive Branch among the various departments and agencies. As I understand it, Bush 41 had trouble getting confirmation of an OIRA head and the VP's office took over the job. But I don't think that was the first time that the BP had been used in that role.
10.27.2008 2:59pm
Angus:
Impossible to write that out with a statute.
Actually, no it is not. The Constitution spells out no powers or duties for the "President of the Senate" apart from casting tie-breaking votes. Therefore, the Senate could, under the Constitution, make a rule saying:

"The President of the Senate's duties shall consist solely of the following:
(a) casting a vote should the Senate be equally divided
(b) emptying the trash cans at least once per day."
10.27.2008 3:02pm
cboldt (mail):
-- The part of Article I you cite is n conflict with: "Each House may determine the rules of its proceedings . . ."
As the President of the Senate (VP) has no powers defined other than tiebreaking, then any powers may be assigned elsewhere (e.g. the President pro tempore).
--
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So, in light of this "conflict" in constitutional language, you posit that the Senate may pass a rule of proceedings that says "The VP is forbidden to preside over the Senate, and may only cast a vote in the event the rest of us jamokes have a tie"
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I'm getting sort of mixed up between your "no powers" and "any powers." Are you saying that the presiding officer in the Senate has no power to preside over the Senate?
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As it stands, Senate Rules (See Riddicks) are rife with instances of the presiding officer taking procedural action. It this all a figment of my imagination?
10.27.2008 3:07pm
Houston Lawyer:
I don't see a problem with delegating the VP executive power on a temporary basis. While this may violate the Senate's ability to advise and consent to appointments, his election should be sufficient in that regard.
10.27.2008 3:09pm
cboldt (mail):
-- There are actually numerous stories about Cheney given direct orders to military personnel under authority of the CinC. The extent to which the CinC (not the President) can delegate authority is unclear to me. --
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Another good one. So far I have declassification, asserting executive privilege to dodge testimony before Congress and the Courts, and giving direct orders to military personnel.
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Did Hillary ever give an order to military personnel? Just kidding, I'm sure she did. Obviously, objection to giving of an order would vary depending on the contents of the order.
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I have an aversion to having two presidents, one unaccountable. But it seems to me that Congress has a remedy for any executive action that it finds objectionable, and that it can reasonably impute ALL executive orders to the president.
10.27.2008 3:11pm
loki13 (mail):
cboldt,

I don't believe you are thinking this through fully. The President of the Senate has the powers accorded to him/her that the Senate allows in its internal rules. The Senate, per the Constitution, may choose its own rules. Therefore, the only positive grant of authority that the VP has, as President of the Senate, is to cast any tiebreaking vote.

So 'any powers' that you might associate with a traditional presiding officer of a legislative body may be assigned elsewhere, which means that the VP has no powers other than the one positive power granted by the Constitution (tiebreaking), the title, and anything else the Senate chooses to give.

As I wrote above, there are historical reasons for the divergent practices. Adams (to a lesser extent), Jefferson, and Barr all considered themselves part of the legislature as the presiding officer of the Senate. After the passage of the 12th Am., and the ascension of George Clinton (unskilled in the ways of the VP) this began to die out, with the eventual nail in the long-dormant coffin being the establishment of a permanent PPT (president pro tempore) of the Senate in 1890. Even a Senate titan like LBJ could not accomplish anything in the Senate as VP due to these factors.

None of this is partisan; it is just history.
10.27.2008 3:16pm
The River Temoc (mail):
It seems to me that the question of whether the vice-president may constitutionally exercise executive power is one where it is entirely legitimate to look to tradition and practice for an answer.

Few people have had any problem with the gradual expansion of the role of vice-president, which really began as far back as Mondale. That's at least thirty years in which constitutional scholars have been okay with the vice-president playing a major role in the administration -- virtually my whole lifetime. Surely if this were a major point of concern, the right should have raised it before now. Picking this moment smacks entirely of political opportunism.

Second, the constitutional does not provide for the appointment of cabinet officers to the executive branch -- but no one questions the right of the president to appoint them. So why not the vice president as well? And contra Instapundit, I think we are much better off for having vice presidents with substantive policy input. Gore is exhibit A, but even Dan Quayle had his Council on Competitiveness.

Third, the constitution provides for the vice-president to suceed the president in the event of the latter's death. At the very least, this provision allows the vice president a *contingent* role in the executive branch. From there, it's a stretch to say that the vice president ought have no actual role. Would the folks making this argument seriously say, for example, that a CEO ought never to have any role in grooming his likely successor -- that, indeed, they ought never to communicate? Because that's what the "exile the VP to Siberia" crowd is seriously proposing with respect to the most powerful office in the world.
10.27.2008 3:17pm
Uh_Clem (mail):
From TFA:

The most important function of a vice president is to serve as a spare president. Using the spare president in the ordinary course of business is as unwise as driving on one's spare tire. Spares should be kept pristine, for when they are really needed.



Is this supposed to be satire? I mean, c'mon. How can anybody take this seriously?
10.27.2008 3:21pm
Rodger Lodger (mail):
"ask the guy who was suing Obama for allegedly not being a natural-born citizen -- his suit just got tossed on standing. --
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Rightfully so. Likewise with the suit challenging McCain's status as a natural-born citizen. The issue isn't ripe, for one thing."

OK, how about suing both candidates for not being a natural born citizen -- that should be ripe, right?
10.27.2008 3:28pm
Anderson (mail):
have an aversion to having two presidents, one unaccountable.

How is the VP any more "unaccountable" than the Prez? They're both impeachable.
10.27.2008 3:34pm
loki13 (mail):
Anyway, with regards to Glenn Reynolds' article-- wow, I normally wouldn't discredit him, but in this case, as a legal thinker, he sure does make a great Instapundit.

The fundamental issue that has come up, both in this case (the promulgation of Chaney's VP is like a tomato, neither fruit nor vegetable, but both) argument is the same as it has been with many of the intellectual underpinnings of the Bush Administration's attempts to aggrandize power under the executive branch and erode accountability. Most arguments, especially ones based on a document ass open-ended as the Constitution, can have some plausible believability. It is the use of these arguments to stretch our previous understandings that has been termed 'constitutional hardball' that went on here. While the GOP believed itself to have an inside track on power in perpetuity, many of the believers simply shrugged and allowed it to happen. Now that it appears that an ideologically hostile administration will be able to use those same arguments, they no longer appear to have been the most wonderful ideas in the world.

Do you really want an unaccountable, 'Fourth Branch' Joe Biden?

The problem with the "VP as tomato" argument is that while is has a plausible textural basis, it has no validity in our political practice for over one hundred years, and arguable for over two hundred years. Unfortunately, Glenn's analysis is dead-wrong. The existence of the 12th. Am. would make having a nationally elected leader of the Senate a poor idea; not only are there SOP concerns, but it would dilute the federalism that we have in the Senate were the VP given any real power in the Senate; conversely, if, as allowed in the Constitution, and given current practice, the VP had no real powers, he would not be in the executive for purposes of his other real responsibility as outlined in the 25th Am.- and wouldn't you want someone already up to speed in case something happens? I'm not even sure if they should fill in, at that point, for funerals, as that is usually something you want the head of state/executive branch to attend, not a "mere" legislator. *heh*
10.27.2008 3:37pm
Bruce Hayden (mail) (www):
There are actually numerous stories about Cheney given direct orders to military personnel under authority of the CinC. The extent to which the CinC (not the President) can delegate authority is unclear to me.
My understanding is that it was VP Cheney who ordered all flights in the U.S. grounded on 9/11, and possibly shoot down orders for aircraft that didn't obey (including, notably, UA 93 if it hadn't crashed). To the extent that is true, I would think that to be an extreme example of what a VP has done in office.
10.27.2008 3:37pm
loki13 (mail):
One of these days, I will proofread.

I was referring to Cheney, as in Dick Cheney.

Not Chaney, as in Lon Chaney. Wolfman in the Whitehouse?
10.27.2008 3:39pm
steve lubet (mail):
Jonathan Adler asks, "Was Sarah Palin right about the Vice Presidency?"

Sarah Palin said that the vice president is "in charge of" the U.S. Senate and "can really get in there with the senators and make a lot of good policy changes."

Notwithstanding Glen Reynolds's observations, Palin was quite obviously wrong. The vice president is not in any Constitutional sense "in charge" of the Senate, nor has any vice president in the last 100 years ever attempted to take charge of the senate or to make any policy changes.
10.27.2008 3:43pm
cboldt (mail):
I don't believe you are thinking this through fully. The President of the Senate has the powers accorded to him/her that the Senate allows in its internal rules.
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Right. So what was wrong with my phrasing of the internal rule that I see you proposing? Rephrase it. Are you going to go through all the Senate rules and strike the parts that say "the presiding officer shall ..."? Who is going to keep parliamentary order?
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Rewrite Rule I of the Senate .. just roughly, and have that proposed rule comport with the language in the Constitution.
10.27.2008 3:44pm
cboldt (mail):
-- How is the VP any more "unaccountable" than the Prez? They're both impeachable. --
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Point taken. I meant in the sense of acting out of sight, and somehow the Pres and VP pointing fingers at each other, with each saying "he did it."
10.27.2008 3:46pm
loki13 (mail):
cboldt,

It's simple. See above. Simply create two positions (President and President pro tempore).

The President shall cast tie breaking votes.
The President shall empty the garbage cans twice weekly.

The President pro tempore shall be the presiding officer for the purposes of all rules listed hereinafter.

Not very hard, and it is pretty much what we've been doing for two hundred years.
10.27.2008 3:47pm
cboldt (mail):
-- OK, how about suing both candidates for not being a natural born citizen -- that should be ripe, right? --
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Neither one is ripe. The electoral votes haven't been cast yet. The constitution has rules for holding office, not for running for it. The constitution and statutes envision an unqualified person obtaining a majority of the electoral votes.
10.27.2008 3:48pm
cboldt (mail):
-- Not very hard, and it is pretty much what we've been doing for two hundred years. --
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Not it's not (what we've been doing for 200 years), which is obvious to anybody who reades Rule I of the Senate.
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Dingbat.
10.27.2008 3:49pm
Hoosier:
loki:

I was referring to Cheney, as in Dick Cheney.

Not Chaney, as in Lon Chaney.


Sure. Now you say so. After getting my hopes up.
10.27.2008 3:56pm
loki13 (mail):
cboldt,

I'm sorry, I'm a dingbat? Which part of my historical analysis was incorrect? Have I missed the vast amounts of control as 'presiding officer' that the VP has over the Senate as opposed to, say, the PPT?

For over two hundred years, we've ignored the VP's role in the Senate. That was codified by the installation of a permanent PPT in 1890. Think about that- why have a permanent presiding officer, uh, for a time? Or, you can look to a few examples and miss what's really going on in the real world.

Divorced from reality, drunk, and stupid is no way to go through life, son. Neither is insulting people gratuitously. *grin*
10.27.2008 3:59pm
Eric Muller (www):
Steve Lubet is exactly right.

In just about all areas of constitutional law relating to the powers of the branches of the federal government, a long unbroken history of a particular practice or arrangement is one important determinant of constitutional meaning. It's surprising (or maybe, given the party alignment, it isn't) that Glenn Reynolds would not have even mentioned that, let alone given it meaningful voice in his analysis.
10.27.2008 4:08pm
cboldt (mail):
-- I'm sorry, I'm a dingbat? Which part of my historical analysis was incorrect? --
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I didn't get to your historical "analysis." I got hung up on how a presiding officer of a deliberative body could be relegated to one role (casting tie-breaking votes). So, if that's the only role of the presiding officer, the other functions of the presiding officer are not performed.
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It'd still be a tail, even if you insist on calling it a leg doesn't make it into one. The person who performs the functions of presiding over the body (whatever they are, and it's more than casting a tie-breaking vote) is the president of the body.
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Rule I of the Senate at least recognizes that there be 1 (one) presiding officer, with a hierarchy of which human assumes that position. VP is at the top of the heap. If you change that rule, you run afoul of "shall be president of the Senate."
10.27.2008 4:08pm
cboldt (mail):
-- For over two hundred years, we've ignored the VP's role in the Senate. That was codified by the installation of a permanent PPT in 1890. --
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I mean c'mon - read Rule I. I linked to it for you. That rule can't possibly be read to "ignore the VP's role in the Senate." If you can't get a basic item like this right, then why should I bother reading anything else you posit for accuracy.
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It's like trying to reason with a hallucinating lunatic (not saying you are one, just drawing the similarity - if basic facts are denied, then it's pointless to argue. 1+1 = 4, and everything else flows naturally from there. Divide by zero does not yield an overflow error, etc.)
10.27.2008 4:12pm
Milhouse (www):
1. The job of a president is, by definition, to preside. I don't think the Senate can make a rule to change that. As I see it, the VP could decide to preside full time, and the President Pro Tem would be out of a job, and there wouldn't be a thing the Senate could do about it.

2. Insty says that the Supreme Court has ruled that legislative officials cannot exercise executive power. I've got to wonder, though, whether all of those cases were ones of Congress giving executive powers to its own officials. Has the Court ever said that the president can't delegate any of his powers to a legislator or a judge? I mean, the president could give me the power to declassify documents, if he chose to; so why can't he give it to John McCain or to John Roberts? And if so, why not to Dick Cheney?

3. It seems to me beyond dispute that the president can take advice from anyone he chooses, including a legislator or a judge, and many presidents have done so. It seems equally clear to me that any such advice is covered by executive privilege. Remember that the privilege belongs to the president, not to the adviser. Why, of all the people in the USA, should the VP's advice to the president not be privileged?
10.27.2008 4:18pm
loki13 (mail):
cboldt,

You are making a basic error. The Senate may make its own rules. The Constitution does not say the VP shall be the presiding officer, but rather is the President of the Senate. The Senate may choose what powers the President of the Senate has, and what powers (for instance) the President pro tempore has, not to mention creating another office (Presiding Officer of the Senate) to handle these parliamentary issues.

The only reason it hasn't been made explicit is because the VP has not tried to exert any real power over the Senate in over two hundred years (with the a few exceptions between 1809-1832), and none at all since 1890. So they haven't bothered.
10.27.2008 4:18pm
loki13 (mail):
Milhouse,

As to your first point, you are incorrect. the S.Ct. grants deference to a branch's interpretation's of its own 'section' of the Constitution, the Senate is clearly allowed to choose the rules under which it operates, and the understanding of this section has been to keep the VP from anything more than a ceremonial role for over one hundred years. As Glenn Reynolds wrote in 2007:

But that's a different issue entirely from the "legislative official" angle. Like a lot of the Bush Administration's arguments, this is one that would make an interesting law school paper topic, or law review article, but that is politically idiotic and legally self-defeating. It's reminiscent, as one of Capt. Ed's commenters notes, of the Clinton Administration's effort to stall Paula Jones' lawsuit by claiming that as Commander-in-Chief the President is a serving member of the military. Clever, in a way. But definitely not smart.

To analogize, since the President is CiC, he can be treated as a serving member of the military?
10.27.2008 4:23pm
MarkField (mail):

Second, the constitutional does not provide for the appointment of cabinet officers to the executive branch -- but no one questions the right of the president to appoint them.


While I generally agree with the rest of your post, I think this is overly literal. By Art. II, Sec. 2, cl. 1, the President "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices...." By cl. 2, s/he "shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States... but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

So while the Constitution is not quite as express as it might be, it pretty clearly expects there to be cabinet officials and for the President to appoint them.

loki13, excellent series of posts.
10.27.2008 4:24pm
cboldt (mail):
-- The only reason it hasn't been made explicit is because the VP has not tried to exert any real power over --
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Maybe you are confused on the difference between "exert real power" and "being the presiding officer."
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Does this ring a bell with you? "The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States."
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The constitution requires both, a VP (who is the president of the Senate) and a President pro tempore. This so-called attribute of "permanence" that you imagine is disrupted on a fairly routine basis, when the VP presides over the business of the Senate.
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You are just making shit up about the relationship between "President" "President pro tempore" and "Presiding officer." I know you earnestly and fervently believe you are right, and I will cease my effort to dissuade you. Bless your heart.
10.27.2008 4:27pm
Dave N (mail):
The discussion of the powers of the Vice Presidency reminded me of John Nance Garner's description of the Vice Presidency as "not worth a bucket of warm piss."

Garner served as Speaker of the House before becoming Vice President--so he knew what he was talking about.
10.27.2008 4:41pm
Milhouse (www):
loki13, the Senate can no more redefine "president" than it can "vote" or "equally divided". The VP is president of the Senate, and the power to preside over the senate is inherent in that position. The Supreme Court isn't going to get involved because it's none of its business, but the constitution says what it says regardless.

As for the CinC being a serving member of the military, no, he's their commander. The whole point of making him CinC is that he's a civilian. The founders wanted command of the military to rest outside its serving members.
10.27.2008 4:48pm
cboldt (mail):
-- The VP is president of the Senate, and the power to preside over the senate is inherent in that position. --
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But you don't get it. All the Senate has to do is make a rule that says "preside" means "only has the power to cast tie-braking vote."
.
/rolling eyes/ /shrugs shoulders/ /keeps back to the wall/
10.27.2008 4:55pm
Guest12345:
It's simple. See above. Simply create two positions (President and President pro tempore).


I keep seeing "president pro tempore" mentioned and I have to wonder, what is the constitutional basis for the senate selecting a person to fill this role? Doesn't the constitution specifically state that the senate can select such a person in the absence of the vice president?
10.27.2008 4:59pm
Milhouse (www):
No, it can't do that, any more than it can make a rule that "vote" means "speak", or that "equally divided" means that there are an equal number of men and women. Or than it can say that "commander in chief" means "head potato peeler". It just doesn't, and the Senate can't make it so.
10.27.2008 5:00pm
Milhouse (www):
Oops, an intervening comment robbed my last comment of its context. In case it isn't obvious, this is in response to this.
10.27.2008 5:03pm
cboldt (mail):
-- I keep seeing "president pro tempore" mentioned and I have to wonder, what is the constitutional basis for the senate selecting a person to fill this role? Doesn't the constitution specifically state that the senate can select such a person in the absence of the vice president? --
.
Not just that it can, but that it MUST.
.
US Constitution
Senate Rules
Senate Rule I - Appointment of a Senator to the Chair
.
Next thing you know, there will be an argument that "the Chair" isn't the same as "the President" (of the Senate), etc.
10.27.2008 5:04pm
Angus:
Milhouse, you are missing the point. The Senate can define the position's role however they please. The Constitution is wholly silent on what exactly the VP "presides" over in the Senate. The Senate can determine that the VP "presides" over trash collection, and that's that.
10.27.2008 5:08pm
cboldt (mail):
-- No, it can't do that, any more than it can make a rule that "vote" means "speak", or that "equally divided" means that there are an equal number of men and women. Or than it can say that "commander in chief" means "head potato peeler". It just doesn't, and the Senate can't make it so. --
.
This is the United States Senate. It can define "up" as "down," and "president" to be "cast tie breaking votes." It has the power to heal the sick, mend the infirm, and cure baldness. You just do not understand the power of the UNITED STATES Senate. If it can make its own rules, if can say that only Democrat votes count, if Democrats get a supermajority to begin with. It can ignore articles of impeachment presented to it, just by making a rule. It could skip appointing a President pro tempore, just by making a rule.
.
Yes, I am being sarcastic.
10.27.2008 5:15pm
Guest12345:
From the constitution:
The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.


From Senate Rule I:
1. In the absence of the Vice President, the Senate shall choose a President pro tempore,...


I'm having a hard time seeing "must" in there. Reads more like "never except when the VP is absent or acting as president."

Regardless the Senate rules would seem irrelevant in this situation. Unless one wants to argue that the senate rules can trump law.
10.27.2008 5:16pm
cboldt (mail):
-- I'm having a hard time seeing "must" in there. --
.
Yupper. Pardon my slip away from direct recitation; note the word "shall." The words "must" and "shall" in legalese (and some technical writing) denote commands weighted as mandatory in nature.
.
The gist of the pair of phrases (VP to be President of Senate, Senate shall choose a President pro tempore) is that the Senate shall not be rendered infirm on account of the Veep deciding to absent himself, and render the body headless.
.
-- Unless one wants to argue that the senate rules can trump law. --
.
Hell, they can trump the constitution.
10.27.2008 5:24pm
ChrisIowa (mail):

The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

Reads to me to say that if the Senate assigns any duties to the President Pro-tem, the Vice President will assume those powers whenever she shows up.
10.27.2008 5:32pm
MarkField (mail):

Unless one wants to argue that the senate rules can trump law.


That's exactly what they do. Under Art. I, Sec. 5, cl. 2, "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." The Senate has express Constitutional authority to set its own rules.

Those arguing for an expanded role for the VP seem to have in their minds an image of "President of the Senate" which includes some (unspecified) inherent powers. The problem is, there's no source guide which spells out these powers. In contrast, we do have 200 years of practice with the institution in which we can actually see how we've generally treated the office. That form of precedent seems pretty compelling in the absence of some express textual support.
10.27.2008 5:33pm
Threadjacker (mail):
What the VP actually does in every-day life is different, and above, the rights and powers expressed in the Constitution.

July 2008 (CNBC):
Sarah Palin: "As for that VP talk all the time, I'll tell you, I still can't answer that question until somebody answers for me what is it exactly that the VP does everyday?"

October 2008 (KUSA-TV):
Bradon Garcia, 3rd grade: "What does the vice president do?"

Sarah Palin: "That's a great question, Brandon, and a vice president has a really great job, because not only are they there to support the president's agenda, they're like a team member, the team mate to that president. But also, they're in charge of the United States Senate, so if they want to they can really get in there with the senators and make a lot of good policy changes that will make life better for Brandon and his family and his classroom."

October 2008 (KEC-TV)
Damon Weaver, 5th grade: Can you please tell the students at my school what the vice president does?

Joe Biden: Well, the Vice President helps the President do two things: helps the President get elected, and helps the President run the government . And so what the Vice President, if it really works well, the Vice President is someone, if the President is making really tough decisions like do we go to war Do we spend more money on education, do we help kids get to college? The Vice President sits in the room and says "Well Mr. President, this is what I think." And it's got to be somebody the President trusts, in order for him to be able to work out a deal where they govern together. And that's what's kind of my job is, Damon. I've been a Senator a long time, there's a lot of things I know a little bit about, and my job is to say to Barack Obama when I think he's wrong "Well Barack, what do you think about this?" That's what he wants me to do. And my job is when he makes a decision is to help him get it enforced.

And the last thing, Vice Presidents, if they have the ability, when the President comes up with an idea, and says "We want to make sure every kid in America can go to college," ok, and he introduces a law, and he sends it up to the Congress and says "Congress, vote for this." Well, I have a lot of experience in the Congress, so what I do is I literally will go up to the Congress, and I'll sit down with the Congressman from Florida, and the Congressman and Senators from California and I'll say "guys, and women, this is what we want to do" and try to convince them to change the law to help kids get to college. That's the kind of thing a Vice President does.

Damon Weaver: Thanks, good look.

JB: Thanks.

Damon Weaver: Senator Biden is now my homeboy.

----------------------------------------------------
I think Biden's answer is not very eloquent, and it doesn't touch on any of the Constitutional roles (succession + tiebreaker). However, it is more descriptive than Palin's answer about the day-to-day things a Vice President does. I think Biden did a better job of explaining the job of VP to a child.

What do you guys think? Who did a better job?
10.27.2008 5:35pm
loki13 (mail):
Guest12345-

The Senate rules are just that, rules. No constitutional basis. And the Senate gets to choose their own rules.

For those of you who are following, neither the VP nor the President pro tempore (senior majority member) actually preside over the Senate for the day-to-day activity of the Senate. So we have other (majority party) senators rotate through on an acting basis.

Again, this is all fascinating from an intellectual standpoint. But it has the same amount of current credibility as someone arguing for the abolition of the Air Force because only the army and navy are provided for in the Constitution. It's one of those great 'textural theories' which doesn't hold water in practice, as even Glenn Reynolds realized in the quote I excerpted above. So now we have to 'fix' a problem that was created only because the current VP sought to avoid accountability from both the legislative and the exectuive branch (in terms of rules applied) using an argument that wouldn't hold water except that it isn't really justiciable and:

a) When it was floated that Cheney might wield legislative power, it was for the issue of the nuclear option, when the old un-amended rules could be used (fascinating parliamentary stuff, really).

b) Now that it is no longer an issue, Cheney is back to not presiding over the Senate and there isn't any real need to change the process.
10.27.2008 5:37pm
Falshrmjgr (mail):
OK, I have to jump in here. To my way of thinking, the Senate has already been in violation of the Constitution for well over one hundred years.

It *should* be clear that the intent of the Constitution was to create an office, one office, the President of the Senate, with certain powers and perquisites, and that office should be limited by rule, and by vote.

The President Pro Tem should fill that office in the President's absence. That was the original intent, not to create two parallel offices with overlapping powers.

Now having said that, we have generations of precedents that dilute the intent of the framers, and create a minor constitutional crisis as to the appropriate role of the VP.

Having said all of that, I find the notion of the VP exercising his role as President of the Senate de facto as well as de jure intriguing.

Is it so far fetched to believe that the framers intended the VP to preside over the Senate as an additional check and balance?

It would appear, to my mind at least, that the question the framers were attempting to address is one of division of powers between the states and the federal government. While to the modern American, the vastly expanded role of the federal government seems natural, this was not always so.

The Framers were concerned over how this balance of powers between the states and the federal government would play out over time, much more so than any concern over party partisanship.

It would seem then that giving the "power of the gavel" to a representative of federal interests rather than state interests makes a lot of sense. The ability to control what gets voted on, how long voting is open, etc, is a remarkable amount of power, but not one that necessarily violates notions of separation of powers.

In my mind, this Executive oversight of the Senate was intentional and one that the Senate chafed under. With that chafing, came the intentional efforts to diminish the role to it's current ceremonial one.

When one considers the current problems in the legislature I am hard pressed to discount out of hand a remedy that has it's origins in our most precious document.

Please feel free to flame now. :)

/Jaeger
10.27.2008 6:01pm
loki13 (mail):
Jaeger,

Your analysis might be correct except for one thing- the framers did not envision that the VP would be a 'part' of the executive in the way we have it now. The SOP envisioned is not the federal/state difference you see, but rather the Executive/Legislative difference.


As an example, you can see how Jefferson worked as VP under Adams, or how Burr asserted independence under Jefferson.

With the unitary ticket created by the 12th Am., this no longer made as much sense, and we immediately saw how, in practice, the VP's role changed.
10.27.2008 6:08pm
Guest12345:
The Senate rules are just that, rules.


Right. But they have to stay within the confines of the law. They couldn't, for example, make rules "allotting to each Senator, two slaves, aged 18-24 for purposes of providing a pleasant surface upon which the Senator will do lines of cocaine." Or "The speed limit on I-15 from Las Vegas to San Diego shall be 25 MPH."

Thus, if the Constitution says that a president pro tempore will be selected when the VP is absent, then when the VP is present the role ceases to exist.
10.27.2008 6:12pm
cboldt (mail):
-- It would seem then that giving the "power of the gavel" to a representative of federal interests rather than state interests makes a lot of sense. The ability to control what gets voted on, how long voting is open, etc, is a remarkable amount of power, but not one that necessarily violates notions of separation of powers. --
.
Yep. And the current status, with VP generally absent from that role and generally present in the executive suite, is probably welcomed by both the Senate (which is the most arrogant deliberative body the world has even known) and the executive.
.
The actual power of the presiding officer doesn't extend in exactly the points you noted, but the role is procedural in nature, becoming substantive only when a vote is deadlocked.
10.27.2008 6:14pm
cboldt (mail):
-- It *should* be clear that the intent of the Constitution was to create an office, one office, the President of the Senate, with certain powers and perquisites, and that office should be limited by rule, and by vote. The President Pro Tem should fill that office in the President's absence. That was the original intent, not to create two parallel offices with overlapping powers. --
.
The current rules of the Senate fit the way you think things ought to be. The VP gets the chair any time he wants it. When he's not there, the President pro tempore (currently Robert Byrd) is in charge, and the rules provide that the president pro tempore can delegate the role of Chair. Each day the Senate opens for business, it reads the delegation letter in order to seat the Chair.
.
The posts that lead you to think the President of the Senate and the President pro tempore are somehow "parallel," i.e., each having a role while both persons are present, are wrong. Not that the posters would ever admit it. Just read Senate Rule I, and see how it corresponds directly with the US Constitution in this regard.
10.27.2008 6:20pm
Dave N (mail):
Loki13,

I am not sure the Senate could amend the rules to not make the Vice President its presiding officer (well, it could, but is not likely to and if it did, it would likely be a nonjusticiable constitutional violation--besides the VP never shows up anyway except when the President gives the State of the Union).

Other than that, however, I have agreed with the historical analysis in your posts.
10.27.2008 6:21pm
cboldt (mail):
Just poking around the Congressional Record. VP Cheney presided over the Senate on Jan 22, 2008, for a short time, and sore in Senator Wicker.
.
Here's an activity that is ministerial in nature, referring to "the order of the Senate of January 4, 2007" for certain authority.
.


[Congressional Record: July 10, 2008 (Senate)]
MESSAGE FROM THE HOUSE RECEIVED DURING RECESS
ENROLLED BILL SIGNED
.
Under the authority of the order of the Senate of January 4, 2007, the Secretary of the Senate, on July 9, 2008, during the recess of the Senate, received a message from the House of Representatives announcing that the Speaker has signed the following enrolled bill:


H.R. 6304. An act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.


Under authority of the order of the Senate of January 4, 2007, the enrolled bill was subsequently signed by the Vice President during the recess of the Senate, on July 9, 2008.


There's another instance of the Vice President signing a bill to make it suitable for presentment to the President on [Congressional Record: September 5, 2006 (Senate)], but that's just Post Office namings. So, not a one-off, a two-off, searching the CR back through the year 2002.
.
Peruse Senate, January 4, 2007 for a view of the ritual of selecting a President pro tempore, and for the above-noted order of the Senate.
10.27.2008 6:41pm
Dilan Esper (mail) (www):
George Clinton should have taken a more active role in the Senate. It would have been a funkier place if he had.
10.27.2008 7:03pm
Falshrmjgr (mail):

The current rules of the Senate fit the way you think things ought to be. The VP gets the chair any time he wants it. When he's not there, the President pro tempore (currently Robert Byrd) is in charge, and the rules provide that the president pro tempore can delegate the role of Chair. Each day the Senate opens for business, it reads the delegation letter in order to seat the Chair.


To be honest, I count them as separate, overlapping offices because they are not identical in power. In effect, I chafe at the idea that the President Pro Tem can appoint his stand in, whereas the President of the Senate cannot. In my humble opinion, the absence of the President Pro Tem should require a vote on a new President Pro Tem. The ability to not appear in the Senate should be thusly (and rightfully) discouraged. By granting the President Pro Tem this power, a subtle precedent is established that they are like, but not synonymous offices.

Further, this practice has encouraged the current tradition that the most senior Senator of the majority party be elected President Pro Tem. While on it's face an innocuous enough tradition, it is one which diminishes the role of the President of the Senate, and encourages the current practice of power lying in the hands of those who do the bulk of their discussions off the Senate floor.

In other words, it is my belief that the intent was for debate on issues to be conducted in the light of public scrutiny on the Senate floor, and not behind closed doors.

If genuine power were vested in the President and President Pro Tem, and the penalties for absence were that the Senate could not come into session, then the encouraged behavior would be to be in the Senate. When the ability to bring the Senate into session is casually delegated to a junior Senator, the encouraged behavior is to be "elsewhere" where "real work" is done.

I would propose, that the powers of the President of the Senate, and thereby the President Pro Tem, be increased to the point that the Majority Leader would covet its possession. And by removing the ability of the President Pro Tem to appoint the Acting President Pro Tem, we could cause beneficial effects.

Absenteeism would diminish, thereby increasing the actual debate on floor.
Backroom deals would be diminshed, because time is finite. If you have to be onb the floor, then you have less time to negotiate votes "offline"
Executive oversight would be increased, and a check and balance restored.
Democracy would be better served.

The best disinfectant is sunlight. :)
10.27.2008 7:09pm
Falshrmjgr (mail):
Also, a good read here to get everyone on the same sheet of music:

http://www.senate.gov/artandhistory/history/common/
briefing/Constitution_Senate.htm
10.27.2008 7:13pm
davod (mail):
"It *should* be clear that the intent of the Constitution was to create an office, one office, the President of the Senate, with certain powers and perquisites, and that office should be limited by rule, and by vote.

The President Pro Tem should fill that office in the President's absence. That was the original intent, not to create two parallel offices with overlapping powers."

I thought that's what happened now.
10.27.2008 7:27pm
jukeboxgrad (mail):
dilan:

George Clinton should have taken a more active role in the Senate.


Hardly any time for that, given how busy he was with Parliament.
10.27.2008 7:33pm
cboldt (mail):
-- To be honest, I count them as separate, overlapping offices because they are not identical in power. --
.
They are identical in power when they perform the duties of presiding over the Senate. Pro tempore is a fill-in for the time being, stepping aside when the superior returns. That's the nature of the beast. What diminishes the power of the President of the Senate is willful absence.
.
-- it is my belief that the intent was for debate on issues to be conducted in the light of public scrutiny on the Senate floor, and not behind closed doors. --
.
I agree. But the FedGov is such a behemoth now, that it would literally be impossible to debate what passes, in public. There isn't enough time to read what they pass, let alone ponder it to the point of comprehension. Action on the Senate floor is scripted theater.
10.27.2008 7:45pm
Nunzio:
The V-P is the back-up quarterback. Gets to break-down film, carry the clip-board, and takes some reps in practice with the first team.
10.27.2008 7:50pm
PersonFromPorlock:
Considering what the Congress has done with "interstate commerce," I doubt they'd have much trouble defining the duties of the President of the Senate any way they wanted to. It's not like words mean anything when there's work to be done.
10.27.2008 8:56pm
Hoosier:
George Clinton never inhaled.


Wait.


No.


"Exhaled."
10.27.2008 9:22pm
ReaderY:
Theories and ideals of government are rare perfectly achieved in the kind of actual working compromises that solve real problems and endure.

Why should the ideal of separation of powers be any different? Clearly the government as actually constituted embodies that ideal only imperfectly. And more power to it.
10.27.2008 10:04pm
loki13 (mail):
PersonfromPorlock,

I think you miss the problem. First, there is a direct grant to the Senate to devise their own rules in the Constitution. Second, other than the affirmative power of breaking ties, there is no grant other than title to VP. This means that if the Senate were to 'write' out the VP the issue, IMHO, would at best be non-judiciable.

That's one of the problems with the interstices of the Constitution, and when the actors engage in Constitutional hardball. What, exactly, does it mean to be CinC, and how far can you take it? Or, better yet, under Art. III, what if Congress abolishes all lower federal courts other than the Supreme Court? We have a history and tradition dealing with the political realities of the Constitution that are, and can be, an elaboration upon the text. Given the nature of the VP since 1805, and the existence of the 12th and 25th Amendments, it is hard to credit any argument that the VP should be spending their time in the legislature. The last one to do that as their main job was Aaron Burr. That this idea is advanced simply to avoid transparency and accountability- well, that's the problem with it. Should the idea ever gain the veneer of seriousness, I am sure the Senate would just choose to de-fund the position (in terms of assistants, office, and not salary) and insist that the VP spend no time with in the executive branch.

Which is silly. Just like Cheney's argument. As Glenn put it- clever, not smart. And a horrible precedent for future administrations.

Do we really think that the least important office, not worth a bucket of warm spit, has suddenly become a brooding Fourth Branch of government with no accountability because of this bizarre take on the last two hundred years of history and a desire to fill in the gaps of the Constitution with some wishful thinking?
10.27.2008 10:11pm
Volokh Groupie:
Wow...this is almost the high quality type of commenting i'm expecting after this boondoggle on the 4th passes.
10.27.2008 11:32pm
MarkJ (mail):
I think Biden's answer is not very eloquent, and it doesn't touch on any of the Constitutional roles (succession + tiebreaker). However, it is more descriptive than Palin's answer about the day-to-day things a Vice President does. I think Biden did a better job of explaining the job of VP to a child.

What do you guys think? Who did a better job?


Beats the hell out of me. I, and lots of other people, are still trying to figure out why Biden thinks FDR appeared on TV in 1929.
10.27.2008 11:47pm
loki13 (mail):
Dave N.,

I just saw your post above. Thank you. I agree that the issue is non-justiciable. I am not sure, in the idealized universe, if the Senate could simply write the VP out. I believe they could, if it was justiciable, as it is within their sphere of interpretation, and is a positive grant of authority (ability to make rules) as opposed to an undefined grant (President of the Senate) in addition to according with history since the passage of the 12th Am. (and then we could have an interesting argument about the effects of amendments on original expected application). I just don't think it should be necessary- everyone knows that VPs in general, and Cheney in particular, didn't want to really preside over the Senate on a daily basis- it was just an attempt to create a gray area between Art. I and II in order to avoid the oversight requirements of either the legislature or the executive branch.
10.27.2008 11:57pm
David Warner:
Dilan Esper,

"George Clinton should have taken a more active role in the Senate. It would have been a funkier place if he had."

I hereby move that you and Loki should switch names. Does the Constitution define the word "groove"?


As to whether Palin knew of which she spoke, from this article (7/16/07):

"Talk with her for awhile, as I did last Wednesday, and try to count the number of references to her state Constitution. During that phone call, she cited it more than 12 times -- not once gratuitously.

"It's my bible in governing," Palin says. "I try to keep it so simple by reading the thing and believing in it and living it. It's providential. Some of the crafters of the Constitution are still alive. They're my mentors, my advisers. I get to meet with these folks and ask, 'What did you mean by this?' And it makes so much sense."


And later:

"Gov. Palin vetoed about a third or more of the capital budget, she says. 'It's not an open, transparent process at all. The way (the Legislature) works, the administration doesn't even know what's in it until the gavel falls. It's handed to the governor without public process and public debate. It's a nonsensical way of budgeting.'"

I think she's been reading her some Constitutions and very much envisions an active legislative role for the VP.
10.28.2008 12:46am
Antimedia (mail):
Why did Elbridge Gerry, during the Madison Debates, call the Vice President "the head of the Senate", I wonder?
10.28.2008 12:56am
loki13 (mail):
Speaking of George Clinton . . .


CHOCOLATE CITY—After months of ceaseless debate, including last week's record 76-hour filibuster slap-bass solo from Senate Rubber Band Minority Leader Bootsy Collins (D-OH), the National Funk Congress is no closer to resolving its deadlock over the controversial "get up/get down" issue, insiders reported Monday.

"Get up-uh, get on up! Get up-uh, get on up!" shouted Getuplican Party supporters on the steps of the Capitol as the debate, as well as a massive 14-piece instrumental jam, raged within. The pro-up-getting demonstrators' chants were nearly drowned out by those of a nearby group of jungle-boogie Downocrats, who called upon all citizens to "Get down, get down!"

The bitter "get up/get down" battle, which has polarized the nation's funk community, is part of a long-running battle between the two factions, rooted in more than 35 years of conflict over the direction in which the American people should shake it.

"The time has come to face facts: To move forward, we've got to get on up, and stay on the scene, like a sex machine," said Brick House Majority Leader James Brown (G-GA), one of getting on up's most vocal supporters. "Say it loud: Only when we have gotten up offa that thing will we, as a nation, finally get back on the good foot."

Upon learning of Brown's remarks, Downocratic leaders openly questioned his commitment to getting up. Said Robert "Kool" Bell, a top-ranking Brick House Downocrat: "It is a well-known fact that Brown has, on many past occasions, urged his supporters to get down with they bad selves. In response to his inconsistent voting record and history of waffling on this crucial issue, we will not rest until every American, as is their birthright, has gotten down."

"You got to get down," Bell added. "Hyuh!"

The disagreement, which has paralyzed all efforts of the National Funk Congress to get it together and get funky for one and all, has reached crisis proportions, experts say.

"Until our country's funky leaders can resolve this deadlock, U.S. funk leadership, and the booties of all Americans, will remain immobilized," said Gregory Tate, domestic motorbooty-affairs reporter for The Washington Funkenquarterly. "Unless a compromise can be reached soon, the entire nation's thang could be in serious jeopardy."

"Our leaders' refusal to budge, let alone move it from front to back, has crippled the move-your-body politic," said current U.S. Mothership Ambassador George Clinton, one of the most outspoken critics of the deadlock. "These legislators must keep it real and understand that no matter what party policy may dictate, they cannot fake the funk. What the partisan people in the House need to realize is this: If they ain't gon' get along, the time has come for them to take they dead ass home."

But despite such pleas for bipartisan compromise, the two parties remain at odds. This week, a Getuplican high-treble scratch-guitar initiative called for all Downocrats to "give it up and turn it loose," sparking an angry war of words on the Senate dance floor. In response, the Downocratic members of the Grooves &Booties Subcommittee drafted a bass-heavy resolution demanding that the initiative be voted "down, down, all the way down."

The Getuplican-Downocratic rift has been further complicated by confusing rhetoric from both sides. A call from Parliamentary leaders to "get up for the down stroke" was interpreted by members of both parties as a statement of support. Equally unclear was a statement made earlier this week by Funky Chinatown Big Boss-Elect Carl Douglas, who baffled observers with the assertion that Funky Chinamen were "chopping men up and chopping men down."

For all the confusion and divisiveness, there are signs of hope. A bipartisan coalition of funky drummers is gaining strength, urging Downocrats and Getuplicans to find common ground by "getting together, on the one." Also on the rise is a small grass-roots campaign calling upon party people not to get up or down, but simply to get it on.

Whether any of these fledgling reform movements will have a genuine impact on the entrenched groove machine is uncertain. One thing, however, is not: A growing number of citizens are fed up with the nation's current leadership for putting party politics before the need of the people to turn this mother out.

"Big government has lost sight of the fact that we should not be divided along Getuplican and Downocratic lines, but should be one nation under a groove, getting down—or up—just for the funk of it," said Clinton at a recent Mothership rally calling for an end to the deadlock. "The point is not that we must get up or down, but rather that, working together, we've got to get over."
10.28.2008 1:06am
mishu (mail):
pro tempore means temporary. "The Senate shall choose a president pro tempore in the absence of the Vice President" means that the Senate shall choose a temporary president of the Senate when the Vice President is not presiding over the Senate as President of the Senate. This concept of a "permanent president pro tempore" is silly. The Senate can choose different people as president pro tempore for each time the Vice President is not available as President of the Senate. When is the Vice President not available to be President of the Senate? See Amendment 25.
10.28.2008 1:09am
kylos:
loki,
cboldt has gone over this more than should be necessary, but words do have meaning and parliamentary terms such as President are backed by centuries of precedent when it comes to their definition. The Senate would have to pass rules ignoring basic definitions of words and precedent of parliamentary roles to go around the Constitution by defining away the role of President of the Senate. Note that if they somehow managed to convince themselves that they indeed could do so, then the President Pro Tempore (literally, President for the time being) would also be subject by definition and by the Constitution to that same elimination of role. At which point the Senate would have to define a new role for presiding over order of business, or function without any presider (note how similar that made-up word is to president) and resort to a parliamentary free-for-all where a call to order is impossible.

There is no way the presiding officer of a body, and in the case of the Senate, this is either the Vice President or in his absence the President Pro Tempore, could ever be assigned the role of emptying trash cans, unless we live in a world where words have no meanings and definitions can be made up on a whim. Please recognize this, or all your historical analysis is worth nothing.
10.28.2008 1:22am
loki13 (mail):
kylos and above post,

First, for all of your worris about words having meaning, let's examine the President pro tempore (literally, for a time). Until 1890, the PPT was elected in the absence of the Vice President, however:

In 1890, the Senate also began electing a permanent president pro tempore, rather than selecting that officer only during the vice president's absence.

Source: Congressional Research Services

The rest of your claims I address in my previous posts. This falls into a gap of constitutional interpretation, and where such an absence exists, we often look to history and tradition to fill the gaps. There are also unresolved questions of what effect the 12th and 25th Amendments would have on current interpretation, esp. the 12th as the duties of the VP untertook the most substantial change since then. Finally, this is not 'definitions being made up on a whim'- the Senate can chose its own rules. If they chose a different method of procedure, then so be it. To argue otherwise is not to argue definitions, but to argue history and tradition (the H&T of what the President of the Senate does as authority that lies beyond what the Senate itself defines for it); but one that has not been followed for over two hundred years, and one that has arguably been superceded by amendment.

As I wrote above, the argument is too clever by half. I don't think the Senate will bother doing anything, and I don't think future VPs will attempt to advance this argument. But as an argument from texturalism, it has all the relevance as someone claiming we shouldn't have an Air Force because of expressio unius est exclusio alterius.
10.28.2008 1:34am
jukeboxgrad (mail):
loki:

Speaking of George Clinton . . .


I think I might as well offer the link, since the photos are cool too.
10.28.2008 1:41am
DWPittelli (mail) (www):
cboldt (re "suing both candidates for not being a natural born citizen") "Neither one is ripe. The electoral votes haven't been cast yet. The constitution has rules for holding office, not for running for it. The constitution and statutes envision an unqualified person obtaining a majority of the electoral votes."

Is it really the case -- even where it's clear a person does not qualify (e.g., Arnold Schwarzenegger) -- that if a party nominates someone and he wins election, that the courts can't weigh in until they are facing such a virtual fait accompli?

And with Obama or McCain, each of whom seems to be qualified, but might possibly not be, could we really expect a court to be able to make the tough decision after the Electoral College has voted?

Actually I expect you're right, but this mechanism seems like a potential flaw in the Constitution which would make 2000 look like an orderly process.
10.28.2008 8:50am
cboldt (mail):
-- Is it really the case -- even where it's clear a person does not qualify (e.g., Arnold Schwarzenegger) -- that if a party nominates someone and he wins election, that the courts can't weigh in until they are facing such a virtual fait accompli? --
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There have been cases where people who were obvious disqualified still "ran." They campaigned, their political parties were represented on the ballot in at least one state, etc. The Secretary of State in each state might be sued to remove the name of the candidate from the ballot, or might remove it sua sponte given an obviously and publicly disqualified candidate, but the ultimate contest of qualification comes after the public election, and when the electors cast their ballots.
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The public does not vote for the candidates. It votes for electors.
10.28.2008 9:12am
Wind Rider (www):
In my humble opinion, I think this is being far too over-thought.

The language in the Constitution is clear - it states the Vice President shall be the President of the Senate. To me, that translates, in common parlance, as "person in charge", or chief parliamentarian, if you prefer.

As for original intent, it does seem the founders envisioned the President and Vice President potentially being adversarial towards each other (remember, these guys were ALL about limiting the powers of government, with the preferred method being the separation of powers, with designed sticking points to make the entire process as much of a pain in the patuti as possible and still have a 'workable' system).

Further there isn't any language in the 12th or the 25th Amendments which substantively alter or override the language referring to the 'job' of the VP - nor does the language of either amendment seem to indicate a preference for both the President and the VP being 'running mates' - in fact, the 12th appears to deal with the positions as separate and distinct from each other, and the 25th solely deals with incapacity and succession - neither deals with political campaigning arrangements.

Simply defaulting to the position that the individuals who have held the position of VP haven't had either the imagination, inclination, or ability to function as a strong President of the Senate doesn't mean somebody is either prohibited from, or foolish for trying it - and putting oneself into a 'framer's state of mind' - keeping in mind that the parliamentary model they were most well versed in was the English model - there seems very little reason they expected the Vice President to always, and solely, be solely a figurehead or simply a ceremonial job.

And if that is the case, the concept of having a purely federal official thrown into the mix of individual state representatives seems to be a logical move, and in keeping with the 'checks and balances' mindset that runs throughout the rest of the original document. So as far as what their concept of a chief parliamentarian's function is - well, as someone pointed out, there is a LOT more parliamentary procedural precedent to point to than the relatively short history of the US Senate provides.

As for the 'pro tempore' position - this is clearly a line of succession issue, and serves to bolster the position that the founders envisioned the Vice Presidential role as much more significant than just a glorified percussionist with a really large headed drumstick.

I'd be really, really interested in seeing a situation where the new occupant of the office were to 'show up for work' everyday, and insist on actually exercising the authority of chief parliamentarian. Obviously, given recent and past practice, the hissy fits the members of the most exclusive club in the country would throw would be epic, and it would be near on hilarious to watch the Nine across the street basically tell them to sort it out for themselves. Hey, if things do get too out of hand, the President of the proceedings can always call on the Sergeant at Arms to remove excessively obnoxious or even bellicose members.

I'm thinking this could be high political comedy of a sort we have yet to be treated to, and I, for one, look forward to such a show.
10.28.2008 9:15am
Wind Rider (www):
Oh, and can someone expand on Reynold's statement in his opinion piece that "The Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power" - Are the decisions to which he refers judgements of legislative officials 'coloring outside the lines' by attempting, of their own volition, to exercise executive type authority, OR, do the decisions place a de facto restriction upon the President's choice of which individuals he may delegate executive authority to?

Little bit of a difference between the two situations, me thinks.
10.28.2008 9:23am
cboldt (mail):
-- that if a party nominates someone and he wins election, that the courts can't weigh in until they are facing such a virtual fait accompli? --
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To punctuate that conclusion, "winning the election" in the case of President and Vice President happens in January, when the electors' ballots are counted in a joint session of Congress. Objections to qualifications are aired at that point in time, and the respective chambers deliberate on the objections. Such deliberations took place in January 2005, in relation to Ohio's electoral votes.
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The decision of Congress as to qualifications may be in error; but ostensibly, Congress would disqualify electoral votes cast for an obviously disqualified individual.
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But what if Congress is willfully ignorant, and after deliberation in fact does name an unqualified person to be President? I assume an obviously-incorrect (based on willful ignorance) decision of Congress would be tossed to the Courts, and whatever the decision of the Court was (i.e., whether it supports Congress, or reaches a different conclusion), the people would repeat the refrain, "selected, not elected."
10.28.2008 10:14am
cboldt (mail):
-- In my humble opinion, I think this is being far too over-thought. --
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LOL. It is a fairly humorous set of exchanges. I'm not sure "over-thought" is the right word. "Over-discussed" maybe, in reaction to claims that are absurd on their face.
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I'm seeing some familiar names siding with "rules can trump the constitution" and "rules can redefine common words," and am mentally writing them off as incredible posters.
10.28.2008 10:18am
Hoosier:
Sometimes I think George Clinton would make a great president. And the libertarians on VC would love him. Because it's hard to expand the powers of government when you never show up.
10.28.2008 1:08pm
TM Lutas (mail) (www):
A thought experiment would be useful. Vice President Sarah Palin is sworn in and just starts showing up, every day and attempts to function as the President of the Senate. Who, exactly, is going to eject her? Who is going to prevent her from presiding? Theoretically, the Senate could change the rules. Theoretically, they could charge the Sargent at arms and physically eject her from the presiding officer's chair every day. Theoretically, the courts would find this not justiciable.

In this Lewis Carroll future, how, exactly, are they going to keep her out of the chamber and then when there is a tie vote, let her in to cast it? The truth is that one cannot construct this gelding of the Vice President's legislative role as presiding officer without impinging on the constitutional right to breaking a tie vote.
10.28.2008 1:13pm
cboldt (mail):
-- Theoretically, the Senate could change the rules. Theoretically, they could charge the Sargent at arms and physically eject her from the presiding officer's chair every day. --
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"Theoretically," they could write a rule to eject all the Republicans. The Constitution doesn't forbid it. Lewis Carroll future indeed. Lewis Carroll present, by the arguments of some (not you) here.
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FWIW, the official President of the Senate currently exercises power indirectly, and is able to have particular legislation brought up. The action occurs in letters, etc. Using an informal method instead of the spelled out formality has parallels. See the use of 60 vote majority vote on some amendments and bills, to "short cut" cloture while providing the same nominal pass/reject function.
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All that to say that showing up makes good theater, but I don't imagine it will happen, because the same result can be obtained by more discrete and diplomatic means.
10.28.2008 1:23pm
Hoosier:

In this Lewis Carroll future, how, exactly, are they going to keep her out of the chamber

They can't:

She'd seek them with thimbles, she'd seek them with care;
She'd pursue them with forks and hope;
She'd threaten their lives with a railway-share;
She'd charm them with smiles and soap!
10.28.2008 1:30pm
David M. Nieporent (www):
What, precisely, executive powers have been exercised by VP's Gore and Cheney?
Well, IIRC, Cheney authorized planes to be shot down on 9/11 and there's some controversy over whether he was actually passing on a presidential order or giving his own.

Ironically, IIRC, when Cheney was SecDef under Bush 41, he refused to listen to Quayle passing on orders from Bush on the theory that Quayle, as veep, was not in the chain of command.
10.28.2008 3:40pm
Mikeyes (mail):
If members of the Conspiracy are unsure of the role of the Vice President, how are either Sen. Biden or Gov. Palin supposed to know the full duties and obligations of the office?
10.28.2008 3:50pm
David M. Nieporent (www):
You are making a basic error. The Senate may make its own rules. The Constitution does not say the VP shall be the presiding officer, but rather is the President of the Senate. The Senate may choose what powers the President of the Senate has, and what powers (for instance) the President pro tempore has, not to mention creating another office (Presiding Officer of the Senate) to handle these parliamentary issues.
Two problems with that: (1) The constitution specifies that the role of the President Pro Tem only exists in the absence of the vice president.

2) The Senate may not make its own rules if those rules conflict with the Constitution. The constitution says that the vice president is the president of the senate. It doesn't say that the vice president shall have a name tag which says president of the senate on it; it says that he shall be the president of the senate. The person who presides over the senate is the president of the senate.

Now, if the Senate wants to strip the presider of all power, it can do that. But it can't give the powers to preside to someone else and say, "But your name tag still says president, so we've fulfilled the constitution." The Senate's choice is to have the vice president preside or to have nobody preside.
10.28.2008 3:57pm
David Warner:
Milkeyes,

"how are either Sen. Biden or Gov. Palin supposed to know the full duties and obligations of the office?"

They're more in the ambit of invented knowledge than discovered. I imagine Palin to be of the "easier to ask for forgiveness than permission" school.
10.28.2008 3:58pm
grilledsardine (mail):
I'm by no means a legal or constitutional expert, but where I think Reynolds went wrong was to say this:

The joke may turn out to be on Mr. Biden, who upbraided Ms. Palin for her reading of the Constitution. Presumably Mr. Biden thinks Barack Obama chose him for the same reason that George W. Bush chose Mr. Cheney, as a way of making up for a lack of experience in foreign affairs. Mr. Bush's choice led him to rely on Mr. Cheney in ways that were unprecedented — and unconstitutional.


In this case there's no difference between Palin and Biden (one has energy expertise the other foreign affairs), excpet that Palin wants both the legislative and executive powers while Bidens wants just the executive. So she does want to extend her powers.
10.28.2008 7:25pm
Gary Harmon (mail):
While I'm no constitutional scholar, it seems appropriate to point out that the Senate referred to by the framers is not the Senate we deal with today. Senators originally were appointed by state legislatures, giving the states a voice in crafting federal policy.


With that in mind, should we factor the original intent of the nature of the Senate in considering the role of the VP?

In giving the Veep the title of president of the Senate, could the framers have posited him as representing a federal position overseeing the activities of the representatives of state legislatures? Might the framers have intended to give Veep the authority to ride procedural herd (preside) over the clamorous states?
10.28.2008 9:24pm