Professor Glenn Reynolds Provides a Lesson on the Office of the Vice President
“The Constitution gives the Vice President no executive powers; the Vice President’s only duties are to preside over the Senate and to become President if the serving President dies or leaves office.”
Professor Glenn Reynolds of Instapundit recently shared some fun lessons about what a VP is and isn’t.
From his Substack:
Mike Pence, Dick Cheney, and the Constitution
Mike Pence is arguing that the Vice President is a legislative, not an executive, officer. Mike Luttig has a piece in the NYT calling that crazy. (Link is to Josh Blackman’s blog post on same. Luttig’s piece is here, but it’s paywalled.)
Well, as it happens, I had a piece on the topic in the NYT over a decade ago, and I’ve also authored a piece in the Northwestern University Law Review on the topic, and I say he’s not crazy.
Nowadays, we tend to think of Vice Presidents – wrongly – as a sort of junior or co-President, but that’s not actually how it works at all. As I wrote in the Northwestern Law Review piece:
The Constitution gives the Vice President no executive powers; the Vice President’s only duties are to preside over the Senate and to become President if the serving President dies or leaves office. Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line. The Vice President really is not an executive official. He or she executes no laws–and is not part of the President’s administration the way that other officials are. The Vice President cannot be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment.
In various cases involving the Executive power, the Supreme Court has placed a lot of weight on the question of whether an official can be fired by the President or not.
Continuing:
Traditionally, Vice Presidents have not done much, which is why the position was famously characterized by Vice President John Nance Garner as “[not] worth a pitcher of warm spit.”” That changed when Jimmy Carter gave Fritz Mondale an unusual degree of responsibility, a move replicated in subsequent administrations, particularly under Clinton/Gore and Bush/Cheney.
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Comments
True. But it can be argued that the actual establishment of the office is prescribed in Article II of the Constitution (executive), not Article I (legislative). Article I says that the VP has no legislative power, other than as a tie-breaking vote when required. To say that makes the VP a legislative officer is like saying that the role of faculty advisor to the Debate Club makes a teacher a student.
The VP is also the presiding officer over the Senate, although it’s become customary for VP’s to turn this job over to the majority leader ASAP. I don’t know what would happen if the VP and the majority leader were of different parties, and the VP wanted to preside all the time. Could the Senate exclude him? Could he assume the power of controlling the agenda, to have the Senate ignore whatever the majority leader wanted brought before the Senate and debate and vote on the proposals he favored instead?
As for his Executive branch role, the Constitution only makes him a spare tire. Although it generally makes more sense to keep the VP fully up to date on issues and put him to work on something, the Constitution allows the President to freeze him out of the Cabinet and keep him in the dark. FDR did that to Truman.
I believe there was a VP once who tried to be an active president, and the senate amended its bylaws to require the president to give the chair in most cases to the president pro tem.
The VP is fairly clearly an Article I office, because its function is prescribed only in Article I. Article II only says how the VP is to be elected, not what he should do once elected. For most of the USA’s history the VP’s salary and expenses came out of the senate’s budget.
Counting the presidential votes on Jan 6 every four years is a function of the legislature. Therefore it is a legislative function. And if the speech and debate clause covers congressional aides, as the supreme court has said it does, then how can it not cover a house’s presiding officer?
Gosh, lawyers bickering about the constitution- one of the most commonsensical documents ever written. But leave it to them to torture and twist simple words on paper into hideously warped origami.
VP John Adams sat around twiddling his thumbs and annoying his fellow revolutionaries. Pence is a uniparty dullard. In his case the job fits the man.
Really?! Commonsensical?! You tell me then, what exactly counts as a “direct tax” other than a poll tax, and how exactly are direct taxes supposed to be in proportion to the census. Let’s even take the simplest case, a straight-up poll tax. The census was, let’s say, nine years ago. People have moved, been born, died, immigrated, and emigrated. In what sense is the tax supposed to be “in proportion” to the census?
More commonsense: Tell me who exactly is supposed to count the presidential votes.
That is the core issue in the debate over who decides whether electoral votes are valid. In 1877 the VP said he had that power, Congress said it did, and Congress subsequently passed the Electoral Count Act that entrenched its opinion. John Eastman says the act is invalid, and the VP in 1877 was right. But if you read the constitution it appears they’re both wrong. Neither of them has the power to decide which votes to count, because the job of counting the votes is not given to either one of them. From the constitution’s text it appears that the Counting Fairies are in charge. Or perhaps Count von Count, from Sesame Street. It doesn’t say who counts the votes, and therefore who gets to decide which votes should be counted! Call that commonsensical?!