Biden gets the Vice-Presidency wrong

I didn’t watch the debate last night, but like the majority of Americans, I believe that it’s no contest who is more qualified to be vice-president: Joe Biden.

That said, Biden made a real mistake last night when discussing the vice-president’s powers.

In answer to Gwen Ifill’s question about whether, as Dick Cheney once claimed, the VP is part of both the legislative and executive branches, Biden correctly stated that Cheney is the most dangerous vice-president in history (the only competitor is Aaron Burr, and his danger occurred after he had left the position).

But I think he is quite wrong to so emphatically state that the VP lies solely in the executive branch (Biden was also mistaken as saying that the executive branch is handled in Article I–it’s in Article II, but that’s not a big deal).

Article I, which does concern the legislative power, does make the VP President of the Senate, and gives him the tie-breaking vote, which actually is more power than Article II gives the office.

Biden argued that that is the only power that the VP has as President–the tie-breaker. But under current rules, that’s not quite true. The VP also makes parliamentary rulings, which can be very influential. When the Senate Republicans wanted to abolish the filibuster in 2005 through the “nuclear option,” they were prepared to get a ruling from Cheney that it would be unconstitutional. This was nonsense, but as President of the Senate, the Vice President has the power to do it. As Robert Caro details in his brilliant Master of the Senate, pro civil rights Senators nearly were able to get VP Richard Nixon to do the same in the 1950’s; only further maneuvering by Johnson and Richard Russell was able to prevent it.

Historically, the Vice Presidency was considered part of the legislative branch; for that reason, George Washington did not invite John Adams to Cabinet meetings (although given Adams’ dyspeptic personality, there might have been other reasons as well). While the 12th Amendment changed things by allowing the Presidential and Vice-Presidential candidates to run together, it did not change conceptions very much. In Doris Kearns Goodwin’s famous tome on Lincoln’s Cabinet, his first-term Veep, Hannibal Hamlin plays a cameo role early on and then disappears. As FDR’s Vice-President, Harry Truman spent most of his time presiding over the Senate, and was enjoying an end-of-the-day bourbon with Congressional leaders in House Speaker Sam Rayburn’s office when he learned that Roosevelt had died.

So I think that there is a decent, colorable claim that in fact the Vice-President does belong to two branches. And there is an important point to this.

One aspect of the Conservative Movement’s Unitary Executive theory is that there is, in fact, a strict separation of power between the branches. Something is either in one branch, or the other but not both. This serves as one important basis for Dick Cheney and David Addington’s notion that the executive doesn’t have to disclose anything to Congress: every agency that they deal with, they argue, is part of the executive branch, and Congress can’t interfere. Ditto with the judiciary. Similarly, Congress cannot meddle with administrative agencies unless they pass a statute specifically directing it to do something: after that, the President, as the head of the executive branch can direct them to do anything not explicitly outlawed by statute (and sometimes even if they are). Most Unitary Executive proponents would not push it quite this far, but it is sometimes implied in the theory.

But, as the Veep’s role shows, it is quite wrong. Federal administrative agencies are both legislative and executive. Similarly, most governmental powers defy simple characterization as “legislative,” “executive” or “judicial.” The President can veto bills, giving him a formidable legislative power. Congress can investigate, subpoena, grant immunity to witnesses, hold parties in contempt and even jail them. Only judges can actually enforce the law by issuing judgments; they can enforce their judgments through contempt and injunctions.

Thus, Richard Neustadt, the greatest theorist of presidential power, got it essentially right when he argued that the Constitution does not establish the “separation of powers,” but rather “separate institutions sharing power.” In other words, the Constitution establishes checks and balances, not a separation of powers,

Part of the Unitary Executive theory is designed to hamstring government by placing governmental powers and governmental agencies into neat little boxes, and thus destroy the government’s ability to act. Progressives should not fall for this. One reason why negotiations over the bailout bill have been difficult has been the Supreme Court’s invalidation of the legislative veto in INS v. Chadha: Congress would be more willing to grant executive authority if one House could veto the Treasury from doing things.

So the moral is: all hail the mighty Vice-President!

UPDATE: I wrote this before seeing Steve’s related post on the topic. Consider this at least something of a response. I doubt whether a Vice-President with a Senate minority can do much, but a Vice-President with a Senate majority can do something if she is ready to be aggressive about the rules.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.