Matt Franck has an excellent post on Bench Memos this morning building on my quick reaction last night. Biden seemed most upset with the notion that the Vice President is a “member of the Legislative branch,” as Ifill put it. Well, technically, I am not sure you can call him a “member” of the Legislative Branch, since the Constitution says that the “Senate of the United States shall be composed of two Senators from each state.” But he certainly is “of” the Senate, since he (or she, I should add) “shall be President of the Senate, but shall have no Vote, unless they be equally divided.” So whether you can technically conclude that he is a “member” of the Senate or not, he is an Office thereof. Indeed, for the last several decades, Congress has treated the Vice President as part of the Legislative Branch, in part. Part of the Vice President’s appropriation (more than $2 million per year) has typically, in recent years, been included in the Legislative Branch Appropriations Bill. Vindictive Democrats tried to spike that appropriation when the issue came up recently, but were beaten back. So a large portion of the Vice President’s staff are employees of the U.S. Senate, subject to its ethics rules and other regulations. How Joe Biden would deal with this appropriation and staffing issue when he was Vice President remains to be seen.
On the Executive side, the Vice President has only those functions which the President wishes him (or her!) to have. Apart from his (or her!) obvious role as President in waiting, there is nothing in the constitution that requires him (or her!) to do anything in the Executive Branch. Certain statutes, such as the National Security Act of 1947, gave the Vice President statutory functions as an adviser to the President, but there is nothing in the constitution that requires the President to accept that advice (and indeed, if the Act were construed to codify non-advisory executive functions in the Vice President, it would be unconstitutional).
Biden’s mention of the “Unitary Executive” theory, a favorite whipping post of the Left, is baffling. He argued that, somehow, the Vice President has concocted (out of constitutional text, I suppose) the theory that the Vice President is part of the Legislative Branch in order to a “aggrandize the power of the unitary executive.” Huh? So the VP claims legislative power in order to strengthen the Unitary Executive? I don’t get that one, Joe. Democrats have never understood the unitary executive theory, which is nothing more than a restatement of the first section of Article II: “The executive power shall be vested in a President of the United States of America.” It is a simple “theory” of constitutional law — that the President is the only Executive.
The Vice President is a bit of an anomaly within the unitary executive. He may perform executive functions, but is not removable by the President. The ability to hire and fire at will is a key part of the President’s authority over the Executive Branch, but he can’t fire the Vice President. He can, however, remove all of his executive functions, which effectively means he still controls the executive branch (except for all of the “independent agencies” that Congress has created to weaken the Executive). The Vice President serves at the will of the President only in the sense that the President could say to him at any time, “Please remove yourself from the White House and find a different home.” Congress, however, could never do that. If Vice President Cheney wanted to spend his days presiding over a Democratic Senate just for the fun of it, he could, and there is nothing that Harry Reid or Robert Byrd could do about it.
There is little question that the Vice Presidency is one of the least understood and most peculiar constitutional institution. The Vice President’s Office has made these interesting issues a matter of public debate, perhaps for the first time since the Founding. (I should disclose here to those who don’t know that I served as Vice President Cheney’s Counsel for 05-07, and thus have had reason to think about the issues a bit). Joe Biden has very little idea what the position entails, as a constitutional matter. I find that equally peculiar, since he purports to be such a constitutional expert.