The presidential campaign has taken a detour into a dispute over the constitutional status of the vice presidency. It all started when Sarah Palin asserted in her debate with Joe Biden that the vice president should play an important role in the legislative branch.
Ms. Palin has been roundly mocked for her claim. But she was probably right.... 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.
But if the vice president is a legislative official, then the exercise of executive power by the vice president raises important constitutional questions related to the separation of powers....
Extensive vice presidential involvement in the executive branch — the role enjoyed by Dick Cheney and Al Gore — is not only unconstitutional, but also a bad idea.
None of this is to say that the President can't, in his own capacity, decide to apply different rules to the VP (who, after all, is an elected official, unlike cabinet secretaries, NSC staffers, and the like) if he chooses. But that's a different issue entirely from the "legislative official" angle. Like a lot of the Bush Administration's arguments, this is one that would make an interesting law school paper topic, or law review article, but that is politically idiotic and legally self-defeating. It's reminiscent, as one of Capt. Ed's commenters notes, of the Clinton Administration's effort to stall Paula Jones' lawsuit by claiming that as Commander-in-Chief the President is a serving member of the military. Clever, in a way. But definitely not smart.
Um, wow. If anyone can find any evidence of Instapundit's regarding anything Dick Cheney has done in the past 7+ years as having been unconstitutional before now, let me know. Cheney can no more make himself into a special fourth branch of government than Taco Bell can invent a magical meal in-between dinner and breakfast (or as dday said, "Fourthbranch ... think outside the Constitution")
Kagro X has a bit more to say about the constitutional claim:
The only vice presidential duties spelled out in the Constitution that have anything to do with the legislative branch actually proscribe a real legislative role for the VP, with the narrow exception of allowing him or her a vote in the case of a tie in the Senate. The VP can't introduce legislation, can't vote in committee markups, and can't address the Senate except insofar as he or she is ruling on or otherwise presiding over debate. Now, if you were to list the essential functions of a legislature, you would probably have to settle on the debating of policy options, and then voting on them. Well, only Senators may debate on the Senate floor, and the Vice President is not a Senator. And the Constitution is pretty clear about the other one: the VP "shall have no vote." In other words, all of that stuff we call "legislating" is unavailable to the Vice President with one narrow and very rare exception.
Other mentions of the duties of the VP: that he or she is elected in the same manner, by the same electorate, and to the same term as the chief executive; that he or she takes over in the event of the death, incapacity, resignation or removal from office of the chief executive; that he or she is subject to impeachment in the same manner as the chief executive (and to which legislators are not); and that he or she shall receive, count and announce the results of the electoral college voting for the federal executive offices in the presence of the two houses of Congress.
So that's the balance of it. The Vice President's one and only "legislative" role is to cast a vote only when the Senate is tied. All other functions -- three times as many being named -- relate directly to the selection and execution of the executive.
But wait, there's more from this insta-classic of sophistry. Claims Glenn -- with whom, mind you, I've had many warm exchanges over the years, but this is just batty:
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.
Yes, it's just like Steve Carell's action figures in The 40 Year-Old Virgin: a Vice President apparently loses half his value once you take him out of his factory-sealed packaging.
If the president resigns or is removed from office, a vice president who has been involved in the activities of the executive branch is also likely to be at risk for impeachment.
We've impeached two Presidents and came close on two others, Nixon and Tyler. In none of the four cases was the Vice President implicated in the President's wrongdoing -- though, to be fair, neither John Tyler nor Andrew Johnson had a Vice President. Kagro X notes,
And the best way to prepare a vice president to take over the entire federal executive should it become necessary? Why, by sequestering him or her strictly from all exposure to executive activity, of course!
Well, that or asking him or her to refrain from and avoid entanglement in impeachable acts. But remember, Reynolds is a Republican, so in fairness, that may not have occurred to him as an option.
The Vice President has assumed a lot of power in recent decades because the Executive Branch is really, really big. The idea that we need to keep the Vice President away from presidential decisionmaking only makes sense in a universe in which one didn't trust the Vice President to be competent in making any such decisions. Hmm.