Friday, October 03, 2008

Joe Biden's Copy of the Constitution   [Matthew J. Franck]

It seems to be different from the one I've got.  Last night Gwen Ifill asked this question: "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 is also a member of the Legislative Branch?"  Sarah Palin, probably not expecting this descent into inside-the-Beltway minutiae, referred, instinctively correctly, to the "flexibility" the framers built into the office of the vice presidency.  Then Joe Biden teed up for it, after 90 seconds to think while Palin was speaking.  Here's his whole answer (from RCP transcript):

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.

Forget the "he's dangerous" flapdoodle, which was uttered to remind the Daily Kos crowd that Obama-Biden is their ticket.  And let Biden off the hook for saying "Article I" when he might have meant to say "Article II."  Virtually everything else Biden says here is completely wrong, constitutionally speaking.  The Constitution does not locate the vice president in the executive branch, or give the office a share of the executive power.  There are several places in the Constitution where the election of the vice president or his succession to the president's office is mentioned (Article II, and Amendments 12, 20, and 25), but none of these says a word about any powers or duties accorded the vice president as vice president. 

The only place you can find such duties is in Article I, section 3: "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."  Notice that Biden reduces this to the tiebreaking vote alone, slighting the powers of the vice president as the presiding officer of the Senate—powers that he may rarely exercise but which are significant nonetheless, as debates a few years ago over the "nuclear option" regarding the filibuster of judicial nominations reminded us.  This is not, as Biden says, "no authority relative to the Congress."

What Biden calls "a bizarre notion invented by Cheney," namely "[t]he idea he's part of the Legislative Branch," is so far from being bizarre that it comes directly from the Constitution.  But why does Biden think this was "invented by Cheney to aggrandize the power of a unitary executive"?  What could reminding people of the legislative status of the veep have to do with aggrandizing executive power?  This probably confused viewers who don't follow Beltway legal struggles—but it certainly showed that Biden and Ifill were on the same wavelength in caring about such arcana.

Since World War II, the role of the vice presidency has grown, and statutes have formalized the previously informal relationship between presidents and their vice presidents (putting the veep on the National Security Council, for instance).  Cheney's office is currently involved in some litigation over the impact of the Presidential Records Act on his office, and Cheney's counsel has proffered the argument that the vice president operates in both the legislative and executive branches of government—with functions as president of the Senate and others "specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities."  The "watchdog" group that is the other party to the case worries that these two categories of vice presidential activity may not be exhaustive enough—that there could be records not relating to either set—and Judge Colleen Kollar-Kotelly of the D.C. district court has shared those worries enough to issue a preliminary injunction to Cheney's office on September 20 (in a PDF opinion here).  The litigation dance continues in that case.

But notice this: Judge Kollar-Kotelly and all the parties to this case agree that one of the prominent features of the vice presidency is that, for some purposes, its character is legislative.  The exact shape of the office is a contested matter, but this basic beginning point is uncontested.  This is exactly Cheney's stated view in public interviews, and it is what Biden vehemently denied last night.  He's got the Constitution squarely against him.  Even a federal judge ruling against Cheney's office says so.

UPDATE: I see now that the redoubtable Shannen Coffin was all over this on The Corner last night.

10/03 08:01 AMShare