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October 02, 2008

"Constitutional Law Scholar" Biden's Article I Gaffe

I flubbed this during the liveblog, but it's an important gaffe from so-called constitutional expert Joe Biden. He said:

"Vice President Cheney has probably been the most dangerous Vice President we've had in American history. He has 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. 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 the Vice President to preside over the senate only in a time when in fact there is a tie vote. The constitution is explicit, the only authority the Vice President has from a legislative standpoint is to vote only when there is a tie vote. He has no authority relative to the Congress. The idea that he's a part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of the unitary executive..and look where it's gotten us.

Biden is just plain wrong about this. First of all, Article I defines the legislative branch, including its composition and the scope of its powers and the powers and privileges of its members. Article I, sec. 3, clause 4 is the first time the Vice President is mentioned in the Constitution. It gives the Vice President an important role to play:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Constitution goes on to direct the Senate to chose a President pro tempore to preside over the Senate in the VP's absence. Though it is not explicitly stated, the VP is also the President of the Senate during all trials of impeachments other than trials of the President. In other words, when Biden says that the VP has "no authority relative to the Congress" the truth is actually that the VP has a special authority, reserved to no other unless the VP chooses to let another wield it.

Article II does not extend to the VP any executive powers. Sections 2 and 3 specifically grant duties and powers to the President; the VP goes unmentioned. In fact, Article II provides for compensation for the President, but doesn't direct the VP to receive anything!

So Joe Biden is talking out his ass when he says "Article I of the Constitution defines the role of the Vice President of the United States. That's the executive. He works in the executive branch." Article I doesn't define the VP's executive roles. In fact, neither does Article II, because the VP has no role to play within the executive branch except to take over in case of death or incapacitation of the President.

Now, this wouldn't ordinarily be all that big of a deal, but Joe Biden is supposed to be Mr. Big Constitutional Lawyer who is going to cure all the excesses of Darth Cheney. But it doesn't seem like he's got much of a grasp of the Constitution at all. Nowhere in the Constitution does it give the Vice President the "primary role ... to support the President of the United States of America." Under the Constitution, the VP only has two things to do: break ties in the Senate and wait for the President to die.

The relationship between the Vice President and the President has varied from administration to administration and it has no basis in the Constitution. It's good modern policy, but remember that in the original scheme of things the President and the VP were usually competitors. The President is well within his rights to kick the VP out in the cold.

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posted by Gabriel Malor at 11:04 PM

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