October 27, 2008

Is it foolish to question whether the Vice President is part of the Executive Branch?

Glenn Reynolds -- in a NYT op-ed -- says no:
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.
The Vice President sloughs off on this job terribly, don't you think?
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.
I think the better way to state the rule is that one branch cannot exercise the power associated with another branch unless a specific clause provides otherwise. Thus, the President has a legislative role because he's been given the veto power, and the Senate has a judicial role in trying impeachments, and so forth. So I don't think the specifically assigned legislative function means that the VP is not part of the executive branch.

Reynolds sees value in locating the VP in the legislative branch in order to be able to say that he's constitutionally forbidden to perform the executive function.
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.
The reason a statute is needed is because the courts would be unlikely to enforce the constitutional limitation Reynolds perceives. Reynolds bolsters the constitutional interpretation by observing that it would also be a good idea, since it would keep the VP from becoming enmeshed in the sort of presidential problems that might, through impeachment or resignation, bring the VP into the presidency.

I don't really like the idea of Congress telling the VP what to do, and I'm not inclined to buy the constitutional argument either.


Revenant said...

I like the idea of Congress clarifying the VP's role as being legislative rather than executive. The VP has no executive powers, so he shouldn't be doing anything for the executive branch.

Simon said...

"The Vice President sloughs off on this job terribly, don't you think?"

The last one to do it properly - that is, to regularly preside - was Alben Barkley, as I understand it.

Kenneth Silber said...

Leaving aside whatever one might think of Cheney or Gore, wouldn't it be a detriment to have a general rule that a VP can't take on substantive work in the executive branch? Wouldn't it make the presidency just that much more of a singular, crushing burden? And do we really want a VP who comes in fresh to the presidency, not knowing what's been going on?

dbp said...

If the VP can't act as a sort of Assistant (to the) President. Then won't she or he be even more unprepared in case the top guy dies?

mccullough said...

This op-ed would make a lot more sense if it weren't for the 12th and 25th Amendments.

The V-P is the President's running mate and needs to be up-to-speed on what's going on in the executive branch in the event the quarterback gets hurt.

Break ties in the Senate and be ready to step in if needed. The Constitution also doesn't say anything about the president's non-officer advisors (the chiefs of staff, economic advisers, etc.) but no one thinks they act unconstitutionally.

ron st.amant said...

The role as President of the Senate is purely ex officio. If one were to locate the Vice President in the Legislative Branch, he/she would be the only member of the Legislative to be elected by the nation as a whole (very nearly a Prime Minister).
Except that we don't physically cast a separate vote for VIce President which means he's elected but not elected.

Cheney is a very twisted fellow.

George M. Spencer said...

Cheney has had too much authority, according to Lou Cannon's new biography of Bush "Reagan's Disciple."

Two reasons:

1) Because Cheney has not wanted the top spot, his absence of ambition has failed to provide a check on the president's policies;

2) Cheney has short-circuited the traditional management structure in the White House. In other words, he's the CEO, while Bush plays a chairman of the board role.

Can't resist this story....

"In 1944, Harry Truman was asked by his friend and Senate colleague Owen Brewster what Franklin Roosevelt was really like. Truman hadn’t gotten to know his running mate very well, but the Democratic vice-presidential nominee had spent enough time around FDR to provide a succinct answer.

He lies,” Truman replied."

Revenant said...

The V-P is the President's running mate and needs to be up-to-speed on what's going on in the executive branch in the event the quarterback gets hurt.

Nobody is saying the VP shouldn't be kept informed about what the President is doing. Obviously he should be, so that he can step in to handle things. But he's got no Constitutional right to be doing ANYTHING other than presiding over the Senate, unless the President is dead or disabled. Nothing about the 12th or 25th amendments changes that.

The Constitution also doesn't say anything about the president's non-officer advisors (the chiefs of staff, economic advisers, etc.) but no one thinks they act unconstitutionally.

The Constitution covers the chiefs of staff; they are members of the military, and the President is the CiC. As for advisers, they fall into two categories: those without governmental authority (e.g. the various economic advisers) and those holding offices created by Congress (the cabinet officials, the head of the CIA, et al).

cryptical said...

The role as President of the Senate is purely ex officio. If one were to locate the Vice President in the Legislative Branch, he/she would be the only member of the Legislative to be elected by the nation as a whole (very nearly a Prime Minister).

It makes more sense pre-17th amendment, when there truly was a separation of interests with the House representing the people directly, and the Senate put forward by State governments.

ricpic said...

Maybe, if it's a tie vote, instead of voting the Vice President could have the tallest Republican and tallest Democrat square off and toss up a jump ball. Presto: no conflict between executive and legislative branches.

blake said...

Look, assuming Barack gets elected, this isn't an issue. (Because it's only an issue when Republicans win.)

So, let's start arguing about this if McCain/Palin get in. Hell, then, we can argue about it a lot, and try to figure out if we shouldn't put some sort of training courses in for Palin, maybe some sort of cap on how many children they can have, or a wardrobe budget--something like that.

Unknown said...

Glenn wrote on this last year, too.

dualdiagnosis said...

Chalk another one up for Palin.

Funny how you won't hear about it much.

The left hangs on to these things- a couple years from now some journalist or politician will smirk and talk about how Palin had no clue what the VP did and that person will be validated.

Steven said...

The VP has a specific legislative function and powers. He has no executive functions or powers, is not answerable to the President, and is legally elected on a separate (Electoral College) ballot from the President (originally, was elected in opposition to the President).

Sure, he's in the line of succession for the Presidency. So is anybody else so designated by Congress, which currently puts the Speaker of the House and the President Pro Tempore as the next two in line. Even if you buy Madison's politically-convenient later argument that members of the legislature aren't "officers", in defiance of the judgment of the first Congress, judges are; does a Federal judge become a member of the executive branch if put in the line of succession?

So why should we even entertain the idea that the VP is a member of the executive branch?

Steve M. Galbraith said...

And Congress should do just that: pass a law to prohibit the vice president from exercising executive power.

So, when Bush was incommunicado during 9/11, who would be in charge of the executive branch/military?

The Constitution says that when the President is incapacitated, the VP automatically assumes the powers of the Presidency.

Art II, Sec 1:
In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President … until the disability be removed, or a President elected.

"Inability to discharge the powers...".

I assume that if the president can not be reached, then power devolves to the VP?

So, during that period when Bush/Air Force One couldn't be reached, Cheney was the legitimate president?

KG said...

The only reason that the VP doesn't have a role in the legislative process is because most of the Senators in the First Congress really disliked John Adams and figured giving him no role in the debate would make their lives easier. It's a Senate rule, which the Senate is allowed to make, per the Constitution.

I'm not really sure a decent argument can be made for the VP being part of the executive on anything other than tradition. Were the election to end in an electoral college tie, and the Senate choose the VP of one ticket while the House chose the President of the other, would any one bet that the VP would be doing much other than casting tie breaking votes and calling the White House to inquire as to the health of the president?

Revenant said...

So, when Bush was incommunicado during 9/11, who would be in charge of the executive branch/military?

Bush wasn't "incommunicado", he was out of the public eye. He was never out of contact with the military. However, in the event that he was, the Constitution places the VP in charge, regardless of what Congress has to say about it.

Revenant said...

I'm not really sure a decent argument can be made for the VP being part of the executive on anything other than tradition.

Not even tradition, since as I understand it the VP really didn't adopt an executive role until the Nixon administration.

Lem said...

We are having a constitutional convention a few days b4 an election?

Lem said...

We had 8 years to trash Chaney

But we had to wait a few days until Palin was asking for the vote

to question the thing ALL over again?

If you are Palin how would you feel?

Lem said...


Lem said...

The Phillies may win tonight.

I want to be in a celebratory mood.

So I'm going to try to be magnanimous with everybody.

Host with the Most said...


Since we're talking about Palin,this just in:

Former editor-in-chief of "Ms." magazine reports on her first-hand exposure to Sarah Palin

It's difficult not to froth when one reads, as I did again and again this week, doubts about Sarah Palin's “intelligence,” coming especially from women such as PBS's Bonnie Erbe, who, as near as I recall, has not herself heretofore been burdened with the Susan Sontag of Journalism moniker. As Fred Barnes—God help me, I'm agreeing with Fred Barnes—suggests in the Weekly Standard, these high toned and authoritative dismissals come from people who have never met or spoken with Sarah Palin. Those who know her, love her or hate her, offer no such criticism. They know what I know, and I learned it from spending just a little time traveling on the cramped campaign plane this week: Sarah Palin is very smart.

Now by “smart,” I don't refer to a person who is wily or calculating or nimble in the way of certain talented athletes who we admire but suspect don't really have serious brains in their skulls. I mean, instead, a mind that is thoughtful, curious, with a discernable pattern of associative thinking and insight. Palin asks questions, and probes linkages and logic that bring to mind a quirky law professor I once had. Palin is more than a “quick study”; I'd heard rumors around the campaign of her photographic memory and, frankly, I watched it in action. She sees. She processes. She questions, and only then, she acts. What is often called her “confidence” is actually a rarity in national politics: I saw a woman who knows exactly who she is.

But the best is:

Many of those—not all—who decried the sexist media treatment of Hillary Clinton have been silent as Palin has been skewered in the old ways that female public figures are skewered, as well as a host of sexualized new ways as well. Some feminists have weighed in; “Even the reportedly clear glasses she wears to play down her beauty queen credential and enhance her gravitas can't make up for experience,” writes my heroine Suzanne Braun Levine, former editor of Ms. Oppose her on policy? Fine. But how sad for feminist leaders to sink this low, especially when Palin has worn glasses since she was 10 years old.

Question: Why do idiot feminists like Bonnie Erbe, et al., get quoted over and over and over as the voice of women?

Lem said...

Is it foolish to ask a few days b4 an election to catch an even break from law profes?

I'm not a law profe, so I may not be able to appreciate the nuance that the question portends.

All I know is that I like this bloog and it will take a banned to keep me away.

Still, it's not fair to Palin.

Lem said...

Is it foolish to question whether the VP is part of the Executive Branch?

Of course not - its just that the impetus of the question does not bring Biden to mind.

Or does it to anybody? - it may be my prejudice.

I want to come out and talk - like in baseball.

Lem said...

In the National Leage (Phillies) when you take out th starting pitcher the way Tampa Bay just did - it's sort of an admission that your ass is getting kiked.


Lem said...

With all do respect to Glenn, the only reason he got his name in the NYT is because of the combination of timing and his (I'm sure) true hart opinion.

nudge nudge?

ron st.amant said...

The VP has a specific legislative function and powers. He has no executive functions or powers, is not answerable to the President, and is legally elected on a separate (Electoral College) ballot from the President (originally, was elected in opposition to the President).

He has a specific function, I agree, but there is NO power attached. He is merely a tie-breaking vote. There are no enumerated powers legislatively for the Vice President. He DOES have enumerated powers executively, in the case of suceeding the President, temporarily or permanently.

And yes, while there are separate ballots cast by the Electoral College, those votes are cast specific thus those votes are for the Office of Vice President, not President of the Senate.

You might have an argument in a contigent election in which case the Vice President could be anyone since they'd be chose stricly by the Senate, but again that doesn't go to which branch of government the office falls under.

This debate, at least the one that has been going on for the last two years has nothing to do with Palin (in fact she's only, I believe, made this specious claim because Cheney has attempted to do so, and only then so he could destroy his office records).

Lem said...

Upon mi compatriota Sammy Sosa much succes when it was dicovered his use of drugs to enhance his performance every Dominican was put on notice. If Sammy goes down - everybody goes down.

Republicans should not even have a name describing them as suth.

I think am a Republican - but other than paying for it, I never met a Republican.

Dinners and fund raisers. thats the only place i meet republicans.

So When I hear about evil republicans - I wany to know where thry are so I could meet them

Other than waht i pay for - Im yet to meet darth vater.

rp said...

Do you folks actually read the Constitution -- or consider the historical precedents concerning the Vice President's role? In the US Constitution Article ONE establishes the LEGISLATIVE Branch [not the Executive Branch, as Senator Biden claimed in the VP debate], while Article Two establishes the Executive Branch. BOTH articles discuss the role of the Vice President.

While in recent years the US Vice President has been viewed more as a member of the Executive Branch, orginally the Vice President was viewed more as a member of the Legislative Branch, *** controlling the entire rules making process within which the Senate is to conduct its business***.

That is, if Governor Palin were elected Vice President and chose *** to wield control over what legislation could or could not come up for a vote in the Senate *** she would be operating within the precedents set during the earliest years of the Congress. Oddly enough, she could also chose to function simultaneously much as Vice President Cheney has done -- operating within delegated presidential executive powers. Like it or not, the Vice President is only federal officer in the US who is simultaneous a member of the Legislative Branch AND the Executive Branch.

As with most situations in life, having power and perogatives does not always mean these should be exercised, and, historically, most US Vice Presidents have chosen to emphasize [or have been requested by the US President to emphasize] EITHER a legislative role OR an executive role but not both.

It is somewhat interesting that Governor Palin has tried to emphasize the legislative role while Senator Biden has tried to de-emphasize it. Or, one could state it the other way around -- that Governor Palin has seemed to de-emphasize the executive role while Senator Biden has seemed to emphasize it. Any guesses as to what a President McCain or a President Obama would prefer?

While it certainly would cause a big fight [as if such has not ever before occurred in the Senate], a Vice President Palin definitely could be "in charge of the US Senate" by asserting control over which legislation can come up for a vote. [If you stop and think about a moment you can see that similar control is exercised by the analogous Speaker of the House of Representatives all the time.]

I believe this overall question has only come up at all because Governor Palin has made it clear that she would be an activist Vice President within the Senate.

Lem said...

I dont think our host is an anything (liberal conservative) in hidding either.

I Take Ann Althouse at her word. really interested in what people that come here think.

I would not be here (neither would you) if it was not the case.

Lem said...

and only then so he could destroy his office records)

Imagen your sacred politician and see me accusing him/ her of the same thing.

Lem said...

The reason why admire Althose is that in way they are asked to be the keepers of the flame.

You cant teach American Law and not be swayed by it. Moved by it.

PJ said...

I agree that it's important to understand the VP provision in Article I in its context at the time the Constitution was originally ratified. At that time, as I understand it, the VP was the guy who finished second for President in the Electoral College, i.e., the loser (or at least a loser) of the Presidential election. Making that guy President of the Senate (which would confer, I believe, some parliamentary power) as well as giving him the power to vote to break ties, would further the power-dividing agenda of the Framers.

The Twelfth Amendment was clearly designed to undo that arrangement in favor of a situation in which the President and Vice President would ordinarily be allies, if not coconspirators. It's hard to imagine that the framers and ratifiers of the 12th didn't consider whether it would be appropriate in the new circumstances to remove the VP's Legislative role altogether. For after the 12th, the Legislative role of the VP would enhance the power of the Executive rather than diluting it. Does anyone (Professor?) know whether there was a debate about that at the time?

Lem said...

there is a picture on ESPN of a pitcher walking off the mound to a rain delay.

It has the rain drops and the human face.

Lem said...

In a world where everything is fake who is the phony?

Nichevo said...

"Is it foolish to question whether the Vice President is part of the Executive Branch?"

Why foolish? I come from the school of "there is no such thing as a stupid question." Why is it unthinkable to ponder alternatives to the status quo? Was Alben Barkley a fool?

Is there a large body of historical evidence to answer the question already, as there is for "Why Not Socialism?" Even if the answer is quite clear, why harsh on one for asking it? Apparently, to intimidate.

I begin to doubt whether you are a very good teacher, but I am pretty sure you love it, for the power trip if nothing else. Nor, as shown by your public post-neutrality blog-thought process, are you all that sharp. O-B'08 is choking you with reasons not to support them, you have said so yourself, but you are 95% determined to swallow it all, a feat to make Linda Lovelace blush.

You're not such an impressive person when the mask slips. I'm not even sure if I want to bone you anymore. Beautiful is as beautiful does. And as I said about poor stupid/crazy Scratch Grrl, your savagery IMHO lowers you right down to her level or a little below - with your advantages you should know better and be better.

But it would really be enough if you would take a dash of cold water and realize that lawprofs and the people around them should be kept as far from the levers of power as possible. Be happy with tenure, that's more power than you deserve.

And actually that should be taken away if possible...perhaps you can explain, with your legal great brain, how that could be done. Since I'm not you or Obama I will just admit that I want that, but don't know the best process to get it.

Teachers, none more so than profs, should definitely serve at the pleasure of somebody else. If you're not teaching facts, go to hell. Or at least risk the displeasure of a boss.

Nichevo said...

That's what I think of profs. Now as for lawyers...

as usual, Patrick O'Brian said better than I readily can:

Upstairs, when Jack had changed his shirt and they were sitting by the fire, Stephen said 'Did I tell you of Lord Sheffield, Jack?'
'I believe you have mentioned him. In connexion with Gibbon, if I don't mistake.'
'The very man. He was Gibbon's particular friend. He inherited many of his papers, and he has passed me a very curious sheet expressing Gibbon's considered opinion of lawyers. It was intended to form part of the Decline and Fall, but it was withdrawn at a late stage of page-proof for fear of giving offence to his friends at the bar and on the bench. Will I read them to you?'
'If you please,' said Jack, and Sophie folded her hands in her lap, looking attentive.
Stephen drew a sheaf from his bosom: he unfolded

it; his expression, formed for reading the grave, noble, rolling periods, changed to one of ordinary vexation, quite intense and human vexation. 'I have brought Huber on Bees,' he said. 'In my hurry I seized upon Huber. Yet I could have sworn that what lay there on the right of the pamphlets was Gibbon. I-low sorry I shall be if I have thrown Gibbon away, the rarity of the world and a jewel of balanced prose, taking him for a foolish little piece on Tar Water. And I did not commit much of it to memory. However, the gist of it was that the decline of the Empire -,
'There is the bell,' cried Sophie as a remote but insistent clangour reached them. 'Killick, Killick! We must go. Forgive me, Stephen dear.' She kissed them both, a rapid though most affectionate peck, and darted from the room, still calling 'Killick, Killick, there.'
'She and Killick are going down by the evening coach, so they must not be locked in,' said Jack 'She wants to fetch some things from Ashgrove'
As for Gibbon, now,' said Stephen when they were settled by the fire again, 'I do remember the first lines. They ran "It is dangerous to entrust the conduct of nations to men who have learned from their profession to consider reason as the instrument of dispute, and to interpret the laws according to the dictates of private interest; and the mischief has been felt, even in countries where the practice of the bar may deserve to be considered as a liberal occupation." He thought - and he was a very intelligent man, of prodigious reading - that the fall of the Empire was caused at least in part by the prevalence of lawyers. Men who are accustomed over a long series of years to supposing that whatever can somehow be squared with the law is right or if not right then allowable - are not useful members of society; and when they reach positions of power in the state they are noxious. They arc people for whom ethics can be summed up by the collected statutes. Tully, for example, thought himself a

good man, though he openly boasted of having deceived the jury in the case of Cluentius; and he was quite as willing to defend Catiline in the first place as he was to attack him in the second. It is all of a piece throughout:
they are men who tend to resign their own conscience to another's keeping, or to disregard it entirely. To the question "What are your sentiments when you are asked to defend a man you know to be guilty?" many will reply "I do not know him to be guilty until the judge, who has heard both sides, states that he is guilty." This miserable sophistry, which disregards not only epistemology but also the intuitive perception that informs all daily intercourse, is sometimes merely formular, yet I have known men who have so prostituted their intelligence that they believe it.'
'Oh come, Stephen. Surely saying that all lawyers are bad is about as wise as saying that all sailors are good, ain't it?'
'I do not say that all lawyers are bad, but I do maintain that the general tendency is bad: standing up in a court for whichever side has paid you, affecting warmth and conviction, and doing everything you can to win the case, whatever your private opinion may be, will soon dull any fine sense of honour. The mercenary soldier is not a valued creature, but at least he risks his life, whereas these men merely risk their next fee.'
'Certainly there are low attorneys and the like, that give the law a bad name, but I have met some very agreeable barristers, perfectly honourable men - several of the members of our club are at the bar. I do not know how it may be in Ireland or upon the Continent, but I think that upon the whole English lawyers are a perfectly honourable set of men. After all, everyone agrees that English justice is the best in the world.'
'The temptation is the same whatever the country: it is often to the lawyer's interest to make wrong seem right, and the more skilful he is the more often he succeeds. Judges are even more exposed to temptation, since they

sit every day; though indeed it is a temptation of a different sort: they have enormous powers, and if they choose they may be cruel, oppressive, froward and perverse virtually without control - they may interrupt and bully, further their political views, and pervert the course of justice. I remember in India we met a Mr Law at the dinner the Company gave us, and the gentleman who made the introductions whispered me in a reverential tone that he was known as "the just judge". What an indictment of the bench, that one, one alone, among so many, should be so distinguished.'
'The judges are thought of as quite great men.'
'By those who do not know them. And not all judges, either. Think of Coke, who so cowardly attacked the defenceless Raleigh at his trial and who was dismissed when he was chief-justice; think of all the Lord Chancellors who have been turned away in contempt for corruption; think of the vile Judge Jeffries.'
God's my life, Stephen, you are uncommon hard on lawyers. Surely there must be some good ones?'
'I dare say there are: I dare say there are some men who are immune to the debasing influence, Just as there are some men who may walk about among those afflicted with the plague or indeed the present influenza without taking it; but I am not concerned with them. I am concerned with shaking your confidence in the perfect
impartial justice of an English court of law, and to tell you that your judge and prosecutor are of the kind I have
described. Lord Quinborough is a notoriously violent, overbearing, rude, ill-tempered man: he is also a member of the Cabinet, while your father and his friends are the most violent members of the opposition. Mr Pearce, who leads for the prosecution, is shrewd and clever, brilliant at cross-examination, much given to insulting witnesses so that they may lose their temper, conversant with every legal quirk and turn, a very quick-witted plausible scrub. I say all this so that you should not be quite certain that

truth will prevail or that innocence is a certain shield, so that you should attend to Lawrence's advice, and so that you should at least allow him to hint that your father was something less than discreet.'

(The Reverse of the Medal)

Nichevo said...

And a little later on:

They both looked absently out at the traffic for a while, and then Pullings said in a low and almost secret voice, 'Doctor, how likely is it he will be - what shall I say - be undone?'
'My opinion is not worth the breath to utter it:
nothing do I know of the law at all. But I do remember that the Bible likens human justice to a woman's unclean rag - quasi pannus menstruate - and I have little faith in truth as an immediate safeguard, in this world.'

Roux said...

Is it illegal for the VP to advise the President?

Andy Johnson said...

Congress has routinely delegated its legislative authority to the Executive Branch. They regularly write legislation authorizing the Agencies of the Executive branch to write whatever rules and procedures they deem worthy and such rules and regulations shall have the force of law... Concern about the separation of Powers regarding the VP is kind of silly given the shadow puppet show Congress has played for decades.

By delegating its legislative authority to an Agency Congress leaves no finger prints on the results. This allows Congress to receive letters of complaint from constituents, haul the bureaucrat before a hearing, excoriate them for foolishness, and then pass new legislation enabling the Agency to expand its original mandate and fluff over the offending passage... The Agencies have taken it upon themselves to issue grants of money to NGOs that enable the Agency to file a lawsuit against the Agency. The Courts find for the NGO. The Agency takes this new mandate to Congress who promptly funds this expansion of authority... It's a shadow puppet show with the public never able to determine exactly -WHO- is responsible for the every growing power of govt... No fingerprints are ever fund. No Congress person is ever at fault as they never voted on the legislation...

A great case could be made if some victim could be found who possessed standing... Imagine Congress having to read-write and vote on all the rules of all the agencies...

Delegation of powers rom the Legislative to the Executive has been a practice in Washington for decades... SCOTUS is unlikely to change the status...Nor is anyone likely to write legislation that would handicap VP Biden from usurping President Obama at any moment of his choosing...

Wasn't this a plot device on one (or more) of the "24" shows-?

PJ said...

The PJ Library contains "The Founders' Constitution," which reproduces a portion of the Senate debate on the 12th Amendment, conducted on December 1 and 2, 1803. Of course, reading that stuff brought me near tears over the way time has laid that body low. But here are a couple of germane excerpts:

Senator William Cocke (Dem-Rep TN): This amendment has a tendency to render the Vice President less respectable. He will be voted for not as President of the United States but as President of the Senate, elected to preside over forms in this House. In electing a subordinate officer, the Electors will not require those qualifications requisite for supreme command. The office of Vice President will be a sinecure. . . . The Vice President will be selected from some of the large States; he will have a casting vote in this House; and feeble indeed must his talents be, if his influence will not be equal to that of a member. This will, in fact, be giving to that State a third Senator.

Senator Uriah Tracy (Federalist CT): In addition to his importance in the Government, arising from his incidental succession to the Chief Magistracy, the Vice President is ex officio President of the Senate, and gives direct influence to the State from which he is chosen, of a third vote in this body, in all cases of equal division, which are usually the cases of most importance. Besides, his influence as presiding officer is, perhaps, more than equal to the right of a vote.

I found nothing suggesting that consideration was given to the idea of removing the VP's Article I powers with the passage of the 12th Amendment.

wind.rider said...

I find it helpful to think of the VP as the 'doublemint' position in government - more through practice than specification. By specification, clearly in the Legislative Branch.

I also find myself in disagreement with both Ann and Glenn, to a degree.

It's fascinating to me that the interpretation of the 12th Amendment seems to be that it specifies that the President and Vice President be members of the same party, or even 'conspiratorial', when the plain language of the Amendment neither directly says nor even appears to intimate any such thing - on their face, they both appear to be procedural in nature, exclusively.

As for my specific disagreement with Glenn, and Ann, it is Glenn's citation of Supreme Court precedence prohibiting members of the legislative from exercising executive authority, without specifying if these were (quite logical) prohibitions from legislative officials self-assuming executive authority, or if they were specific prohibitions on the power of the presidency to delegate whatever authority he sees fit, to any individual he so chooses - HUGE bit of nuance there.

I also don't buy into Ann's train of thought that the President has a 'legislative' role by virtue of possession of executive veto authority this is merely a procedural specification, a separate, distinct role and responsibility at the very core of the separation of powers concept.

While the argument or discussion of the wisdom of a Presidential executive choice of the selection of the Vice President for delegation of authority is a valid one to join, my sense is that legislative intrusion of this sort limiting the authority of a President is certainly unwise, and quite likely an unconstitutional over-reach, 'crossing of the streams', as it were.

Considering the mindset of the framers, and the given that they envisioned the President and Vice President as potentially adversarial, also considering the overall tendency to rig the system to be as onerous as possible and still function after a fashion (that whole limited government thing), and further considering the logic of injecting an official elected by (and thus answerable to) the entire electorate - a 'federal' figure in the midst of potentially parochial individual-states-interest representatives does seem logical, and even in keeping with the founder's whole 'check and balance' vibe.

Of course, I'm totally dismissible or lampoon-able for my completely lacking in formal legal training take on the whole matter. I'm not sure where these crazy notions come from, other than, you know, actually reading the Constitution.

PJ said...

It's fascinating to me that the interpretation of the 12th Amendment seems to be that it specifies that the President and Vice President be members of the same party,

Speaking just for myself, I didn't mean to suggest that the 12th mandated that Prez and VP be fom the same party, just that it made that outcome much more likely. And under the pre-12th system, even if the VP ended up being from the same party, he was still a disappointed rival for the Presidency rather than a presumptively loyal "running mate." (And I'm not saying the 12th Amendment mandates a joint ticket, either, just that it created a system that made the joint ticket possible and, practically, all but inevitable.)

And btw, I think the Constitution was meant to be understood by non-lawyers, and I would never dismiss a thoughtful comment like yours on the ground of lack of credentials. But I hope you don't think you're the only one who bothers to, you know, actually read the Constitution.