In the blawgosphere, we call him Instapundit. But he has a name, Glenn Harlan Reynolds, and he used it in an op-ed in the New York Times in support of the proposition that the Vice President is really a legislative office.
The op-ed was short, as Times op-eds go. Maybe it was edited within an inch of its life, or maybe Glenn was as conservative in his use of words as he is in his view of the law. Either way, he offered two major points in his view of the role of the Vice President.
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.
This position, while technically accurate, leaves one with the sense that there’s a glaring gap in reasoning. What makes it accurate is the point that these two duties are all the Constitution “spelled out.”
What makes it dubious is that historical experience is otherwise. And, of course, the fact that the Senate established the office of permanent President Pro Tempore, as it is constitutionally entitled to do, renders the ceremonial position of the VP as Senate president meaningless. As some wag commented, the Senate could, by rule, establish the duties of its president to be taking out the trash once a day, and that would be as much as the Vice President of the United States could do to fulfill his constitutional mandate, as long as the President survived.
So does this reduce the Vice Presidency to a legislative position, or more honestly, a position without function other than to wait around for the death of the President? I don’t think the argument necessarily follows. The Constitution does not mandate that the VP do nothing all day long. It doesn’t forbid the VP from playing a role in the administration, or serving the presidency by delegating functions to the office in furtherance of the executive branch purposes.
The constitutional mandate can just as easily be seen as an extension of authority rather than a limit, as Glenn would have it. By denominating the position as “Vice President,” the Constitution implicitly acknowledges two things, that the office is secondary to the primary office, and that the primary office is that of the President. To accept Glenn’s interpretation is to believe that the founding fathers either neglected to consider the name they gave to the position, or that they arbitrarily called it “Vice President” rather than President of the Senate and second in line to the Presidency.
Based upon his conclusion that the VP is a legislative office, Glenn then contends that the office holder should have no role in the executive branch, as it would constitute a separation of powers conflict, and that Congress should pass a law precluding the VP from acting in an executive branch capacity. Talk about making a lousy job worse. Aside from the practical issues this raises, such as a VP learning the role of the executive in preparation of taking over the job some day, it would leave the VP with essentially nothing to do.
That’s exactly what Glenn proposes.
The most important function of a vice president is to serve as a spare president. Using the spare president in the ordinary course of business is as unwise as driving on one’s spare tire. Spares should be kept pristine, for when they are really needed.
Now that is one very cute analogy. Wrong, but cute. Unlike a spare tire, any person who ascends to the position of President should not be pristine, but road tested. No one wants to pull out their spare, only to find it’s flat. See, I can use analogies too.
But none of this discussion makes the claim made at the Vice Presidential debate by Sarah Palin accurate either. She said that the vice president is “in charge of” the U.S. Senate and “can really get in there with the senators and make a lot of good policy changes.” Even if Glenn is correct as to the legislative function, that function never goes beyond voting in case of a tie. The Senate President position was displaced by the President pro tempore back in 1890, and the VP has never been “in charge of” the Senate by any stretch of the imagination.
On the other hand, Joe Biden flubbed the constitutional role of the Vice President in its entirety. It’s hard to say which is more embarrassing, the fact that he’s been in the Senate long enough to know what’s up, or that he plays a constitutional law professor at Widener Law School?
Under the circumstances, Glenn’s contention is beginning to sound better and better. Let’s leave them in the trunk of the car and pray that we never have a flat.
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Actually, the Senate is not constitutionally entitled to establish a permanent President Pro Tempore; it is entitled to have one “in the absence of the Vice President, or when he shall exercise the office of President of the United States.” And, I don’t see anything in the constitution which gives the Senate the power to mandate any duties for its president.
Au contraire. The Senate has the constitutional authority to create its own rules (Article I, Section 4), and it exercised that authority in 1890 to vest actual control in the newly created permanent position of President pro tempore and to render the VPs “President of the Senate” as a ceremonial position. While the Constitution created the title for the VP, it never fixed any duties to the job. So while you may not see it, you’re about 128 years too late to the party, though an obscure party it is indeed.
The article you pointed me to states that the VP basically acted as president of the Senate until Nixon moved into the White House and started acting like a member of the Executive branch. Maybe you think we should start modeling our government on Nixon’s plots and plans, but I’m not so convinced. 😉
The Senate doesn’t have the power to render the VP’s position as its president ceremonial. Technically, what it has done is exercise its “shall choose their other officers” power and created an office which is held by someone who automatically fills the slot of president of the Senate when the VP is not available (done for the reasons spelled out in para.2 under “Presidential Succession” in your article).
I don’t believe the Senate can make the VP as its president do anything other than preside. On the other hand, I don’t think the VP can lead the Senate anywhere either. I think that the Senate could freeze the VP out by passing rules which made presiding over the Senate very mechanical, so that there was a strict limit on length of speaking and a strict order in which speakers are acknowledged.
Personally, I think the VP is supposed to be in the Senate, but I don’t think that anyone who actually reaches the office of VP is going to want to stand in the chamber all day saying “The Chair recognizes the junior Senator from Idaho for 10 minutes” all day. S/he would rather be in the White House where more exciting and aggrandizing things are going on. After all, what makes you look better in your run for the Presidency: I was helping the President during the Nepal Crisis or I was presiding over the Senate during the budget debate?
As a practical matter, a VP who tries to get involved in much policy in the Senate will find herself meeting with unusual success, if she meets any success at all; the Senate is historically very clubby, and even those who have been in the club don’t seem to want ex-members to hang out much when they’ve moved out and (possibly) up.
I’d like to see it work, myself. I think getting involved in legislation would both keep a VP occupied with important, interesting matters and keep her (or, possibly, him) out of the kind of involvement with Administration execution of policy that’s come in for (some legitimate, some overstated, IMHO) criticism. It’s politically a lot easier for a President to explain that he needs a new Chief of Staff because the present one wants to “spend more time with his family” than that he’s cutting the VP out of the job. When it comes to making the VP a top legislative aide, in practice, it sounds like an even better fit for Biden than Palin, actually; the sort of thing that gets normal people looking at him like there’s a live squid flailing away in his mouth gets his buddies on the Hill shrugging that that’s only Joe being Joe.
That said, when Nixon was VP he was hardly terribly effective in, well, anything; when Eisenhower was pressed as to what the VP had contributed, he said something like, “Well, if you can give me a couple of days, maybe I can remember something.”
We don’t really get to the modern style of activist VP until Carter/Mondale; Nixon was just the first to move his office.
Nixon — understandably — kept Agnew out of things, and IIRC there was only one occasion when the Kennedy brothers tapped LBJ for advice on how to get a bill through. He gave Bobby — the de facto chief of staff — a forty-minute, step-by-step set of instructions on what horses to swap and where which bodies were buried. They never called him again.
That wasn’t an article; that was from the Senate’s website of the history of the President pro tempore. If you kept scrolling down, it provides a detailed discussion of the lack of constitutional specificity of the duties of the VP as Senate President. Even further down, it discussed the duties of the President pro tempore:
The Nixon reference had to do with the location of the VPs physical office, not his ephemeral duties as most pleasant guy in the West Wing.
And an historical note, Senator Ted Stevens of Alaska was President pro tempore for the 108th and 109th Congresses, 2003 through 2007. Now he’s (ahem) not likely to hold the position again.
But we’re not talking practical here. This is all pointless legalisms, since the constitutional role is meaningless no matter how deeply one parses the details, and we all know that no VP from either party is going to exert any control over the Senate around under any circumstances. A few cocktails perhaps, a wink or two maybe, but that’s as far as it goes.
Control, certainly not (other than in the extreme rarity of a tie, something that’s vanishingly unlikely for the next term).
Significant influence, maybe. I’d put it in the longshot-but-possible category. It definitely won’t happen unless the next Administration tries (and that’s by no means likely, either way next Tuesday goes), but I can’t think of a candidate who is as better positioned to try something different as Palin is, or one since LBJ (who, I think, could have done a terrific job in getting legislation through) as better-positioned to use longstanding relationships and institutional knowledge to get stuff through as Biden.
The dynamics would be very different in either case, though; Biden would have a much more difficult row to hoe, and more loins to gird*. (The issue, if he’s the VP, isn’t going to be whether they’ve got enough to override a veto, but whether getting what Pelosi and Reid will want will be too much for the party’s 2010 election efforts.)
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* I dunno about you, but regardless of what happens a week from today, I’m fully girding my loins; I think there’ll be a whole lot of loin-girding going on as, I can’t see any possible result that won’t be a huge shock to the system.
Regardless of who wins, I would strongly support any loin-girding efforts on your part.
I think I see a new t-shirt in my future.