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.