The Corner

Biden’s Error on the Vice Presidency

Joe Biden’s response on the constitutional role of the Vice Presidency is so riddled with error that it is difficult to know where to start. He said, “The idea, he [Vice President Cheney] doesn’t realize that Article I of the Constitution defines the role of the Vice President. That’s the Executive Branch. He works in the Executive Branch.” Biden, who has been a member of the Senate for decades, doesn’t know that Article I of the Constitution defines the legislative powers of the federal government. It delineates and limits Congressional authority, and does not speak to Executive functions.

Article II of the Constitution sets out the President’s executive authority. Guess what, Joe? The Vice President is mentioned in both Articles. Article II provides that the Vice President shall serve “together with” the President and thus establishes the Office of the Vice President. But Article I names the Vice President as President of the Senate, which makes him both the Presiding Officer and the tie breaking vote in the Senate. He is not a Senator (thus, for instance, not entitled to constitutional speech or debate immunity), but he is an Officer of the Senate.

So Joe, what about Article I suggests that the Vice President doesn’t have a Legislative function? He clearly does. Vice President Cheney has voted on the passage of legislation a number of times, as have his predecessors. He could, on any day he wanted, physically preside over the Senate. Senate practice since John Adams has essentially excluded the VP from debates on the Senate floor, but as the Presiding Officer of the Senate, he is certainly “of” the Senate.

And what do you think, Senator, of the first 150 plus years of our Republic where the Vice President generally had no Executive Power? The Executive Role of the Vice President, which is not delineated in Article II, has only developed in recent decades. Indeed, Vice President Johnson was so concerned about certain delegations of Executive authority to him by President Kennedy that he asked the Justice Department whether he could constitutionally accept that delegation, given his concern that it would be inconsistent with his role as President of the Senate. DoJ answered that he could, but in doing so, concluded, “Perhaps the best that can be said [of the Vice Presidency] is that the Vice President belongs neither to the Executive Branch nor the Legislative Branch, but is attached by the constitution to the latter.”

When controversy arose about the status of the VP, Vice President Cheney said that it was best to consider the VP as having a foot in both branches. That certainly is a reasonable explanation of the peculiar office of the Vice Presidency. If the President wants him to act with him as part of the Executive Branch, he can. If he doesn’t, he can kick the VP to the Executive curb. So perhaps the best way to understand the Vice Presidency is that he is “of” both political branches. Biden’s shot at Cheney notwithstanding, he betrayed a frightening lack of understanding of most basic constitutional structure.

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