About that Constitution, Mr. Biden…
I’m back from limbo to write about something interesting from last night’s Vice Presidential debate. It has to do with the question about the VP’s role, and what sounded like a highly intelligent response by Sen. Joseph Biden, constitutional lawyer. From CNN.com’s transcript (my emphasis in italics):
IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it [sic] is also a member of the Legislative Branch?
PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.
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.
Poor Joe Biden. Apparently he hasn’t read the Constitution, has read it and doesn’t remember it, or is lying. So for his edification and that of his supporters who no doubt were nodding their heads in agreement at his remarks, I have gone through the entire United States Constitution and excerpt here every reference to the Vice President, with my remarks. As the reader will see, Biden is wrong on several counts.
Article I – The Legislative Branch
Section 3 – The Senate
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 [sic] 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 I deals with the Legislative Branch, not the Executive Branch. Section 3 defines the Vice President’s duty as President of the Senate and his/her role as tie-breaker, two duties rather than one, and both legislative roles.
Article II – The Executive Branch
Section 1 – The President
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 II, Section 1 establishes the length of a Presidential term, during which the Vice President serves simultaneously. It defines no Vice Presidential duties.
Section 4 – Disqualification
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article II, Section 4 establishes the procedure for removal of the Vice President from office for certain reasons. It defines no Vice Presidential duties.
Amendment 12 – Choosing the President, Vice-President
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
The 12th Amendment establishes the process for electing the Vice President, defines the duty of the Vice President as President of the Senate (a legislative duty, as explained above) to receive and open the electors’ ballots (a third legislative duty), and defines a circumstance under which the Vice President shall act in the executive role of President.
Amendment 14 – Citizenship Rights
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The 14th Amendment delineates the rights of citizens to elect the Vice President, but defines no Vice Presidential duties.
Amendment 20 – Presidential, Congressional Terms
1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
The 20th Amendment defines the term of office for the Vice President and provides for the Vice President to assume or act in the executive role of President under certain circumstances.
Amendment 23 – Presidential Vote for District of Columbia
1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
The 23rd Amendment grants electors to the District of Columbia. It mentions the Vice President only incidentally and defines no Vice Presidential duties.
Amendment 24 – Poll Tax Barred
1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
The 24th Amendment prohibits use of a poll tax to disqualify voters. It mentions the Vice President only incidentally and defines no Vice Presidential duties.
Amendment 25 – Presidential Disability and Succession
1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
The 25th Amendment provides for the Vice President to assume the executive role of President if the President dies or resigns, and establishes a process for the Vice President to act in the executive role of President in certain circumstances.
So to summarize what Biden got wrong:
- Article I doesn’t define the role of Vice President as an Executive Branch role, as Biden claims, since Article I deals with the Legislative Branch. This is so fundamental that I am stunned Biden got it wrong.
- The Vice President does not preside over the Senate “only in a time when in fact there’s a tie vote” as Biden claims. He/she exercises a vote only when there is a tie. But the Vice President is President of the Senate at all times, except “when he [sic] shall exercise the Office of President of the United States”, which of course is an exclusively executive role.
- Nowhere in the Constitution is the Vice President given the role, primary (as Biden claims) or otherwise, to “support the president of the United States of America” or “give that president his or her best judgment when sought”.
- Breaking a tie is not “the only authority the vice president has from the legislative standpoint”, but one of three legislative duties specified in the Constitution, the other two being presiding over the Senate (Article I, Section 3) and receiving the ballots of Presidential electors (Amendment 12).
- If the principle that the Vice President is part of the Legislative Branch is “a bizarre notion invented by Cheney,” then Cheney must have traveled back in time and influenced the people who wrote Article I. It is not, obviously, the same kind of legislative role as that of an elected Representative or Senator, but it is legislative, being stated as it is in the article about the Legislative Branch. In fact, legislative duties are the only duties expressed or implied by the Constitution as pertaining to the Vice President.
The Vice Presidency is indeed an extremely weak role given very limited authority by the Constitution. None of that authority is executive. The President might choose to give the Vice President the kind of support and advisory role that Biden incorrectly believes is his/her “primary role”, but there is no Constitution requirement or even suggestion.
P.S. Whatever Biden paid for the Botox forehead, he deserves a refund. It looked awful.
(6:37pm EDT: Edited several typographical errors.)