Could Cheney be right?

I was curious about what the exact Constitutional role of the Vice-President given the question on Cheney’s interpretation during the Veep debate.

First of all, it is found in Article I which does deal with the legislative branch and it says

This is similar to Robert’s Rules of Order except that they allow for the Chair or President of the assembly to vote when by secret ballot or if their single vote would change the outcome of the vote on a motion needing a majority or 2/3 vote. Strangly enough, there is nothing in the Constitution limiting the Vice-President’s powers to run the Senate. Yes, he mus leave Congress to be acting President, but so would the SOTH or PPTOTS.

In Article II, except for the method of election, the only mention of the Vice-President is

Considering that the Supreme Court was relatively weak until John Marshall “interpreted” the Constitution as giving SCOTUS (and through it, and the subordinate Federal courts) the final word on Constitutionality of laws. Also considering that the Senate had interpreted the Constitution as giving Congressmen immunity from impeachment but not judges. Is it not possible that an valid interpretation can be made that the Vice-President is a member of the legislative branch and is the only officer in two branches concurrently?

Someone else will come along an give you a much better interpretation of the Constitutional issues of VP power.

What I can tell you is that in practice, the VP’s power, except for those given to him by the Constitution, is whatever the President says it is.

The Senate makes its own rules (other then the tie-breaking thing, and some other Constitutional limits on when they meet, etc), and so the VP doesn’t have any power to control them. Saying the Constitution doesn’t put any limits on his power to run the Senate is the same as saying that the Constitution doesn’t put any limits on the pets of the Senate Majority leader to run them.

Of course the Senate could give the VP a bunch of powers if they wanted to, but then they could do the same thing to give Harry Reid’s pet cat the same powers.

ETA: relevant bit of the Constitution:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

The biggest reason that Cheney is not right is because he was playing games with the Constitution by trying to have it both ways.

He argued that he was not subject to annual reporting or periodic on-site inspections under a 1995 executive order on safeguarding classified information, which applied to the Executive branch. cite

But, he also suggested that he had executive privilege, something he has expressly done previously, thereby avoiding legislative oversight of his actions.

It is not simply a matter of Cheney claiming that the VP is a member of the legislature. Rather, he is claiming to be both a member of the legislature and the executive, depending on what suits him best. Basically, he claims that the VP is its own branch, and is not subject to oversight from any other.

Let’s start with this: I think this is a big “apart from”—if you asked me to figure out which article the vice president comes under, my first question would be which one tells us who the vice president is.

Article I says how we pick members of the legislative branch.

Article II says how we pick members of the executive branch.
–and the text which tells us how we elect the vice president is in Art. II.

to my mind, that’s a pretty clear starting point at least.

Also, let’s remember cheney’s problem was to do with laws about presidential records. So really, saying “he’s in two branches” doesn’t help him. He’s got to show he’s not in the executive branch. Which is much harder.

(though, as an aside, being in the legislative doesn’t mean he wins—I would have laughed if he had won the argument that he was in the legislative branch, and then the suddenly-democratic senate would vote a whole bunch of regulations about its members and procedures–specifically, about the vice-president’s records (as noted earlier, as it is entirely appropriate for it to do).

Then, he’d have no defense (and you wouldn’t even need the house and president to agree on the regulations–as they did when enacting the laws on presidential records)

Precisely what branch of government do you then believe should be the final word on the constitutionality of laws?

Actually’ there’s another point. If Cheney was truly a member of the legislative branch, this would control when he could be fired.

Nobody agrees on that-Art. II. is clear that the VP can only be removed by impeachment. (which requires both houses–as opposed to the Art. I. procedure which only involves the house trying to expel one of its members)
Pretty straightforward
Members of the legislature can be fired under Art. I. by 2/3 vote of their house.
Cheney cannot be fired by 2/3 vote of the senate (on its own).
therefore, he’s not a “member” of the legislature as it’s defined in Art. I.

That’s pretty simple, actually - the answer is the legislative branches of at least three-fourths of the states. But that sort of final word isn’t exercised often, as you know, and even in this the Congress has its necessary role.

When someone sues as to the constitutionality of a law, the question should go to the state legislatures? I must be missing something.

I think he’s talking about amendments.

Well, sure. so once these states have decided what text to enact in the constitution, what does it mean? If someone claims the federal government has infringed their fifth amendment right against self-incrimination by being compelled to give a DNA sample, who decides if that does or doesn’t count as testimony?

That’s a court question.

Certainly, and I wouldn’t want to deny the Judicial Branch’s necessary role. But all branches of government have to consider constitutionality in their decision making, and it would be a grave mistake for any of them to just proceed on the assumption that the courts will sort it all out.

[quote=“Mr.Moto, post:12, topic:467642”]

Certainly, and I wouldn’t want to deny the Judicial Branch’s necessary role. But all branches of government have to consider constitutionality in their decision making, and it would be a grave mistake for any of them to just proceed on the assumption that the courts will sort it all out

[quote=“Mr.Moto, post:12, topic:467642”]

I’m not sure anyone goes out under the assumption that the judges will sort it out–as you note, each other branch is under an obligation to independently asses the constitutionality of its actions and not to act in a way contrary to the constitution–and while it may be naive to assume they always do so in good faith (i certainly don’t)–even if they did, they’d disagree, and judges would have to sort things out.

It’s a more interesting argument (that I’m not sure you’re making) about whether, given the co-equal nature of the branches, and the obligation of each to independently assess the constitutionality of their actions, whether the judicial branch should overrule those determinations. It’s an easier question when the leg and exec disagree-because then, whenever the judicial branch agrees with one, it’s 2-1.

It’s harder when it’s just citizens vs. one of the branches in the courts–but again, it seems to be a core judicial function to resolve those disputes–though one might say Marbury v. madison was a bit of a stretch, it’s hard to deny at this point. (and I myself find solace in the article III grant of jurisdiction that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution”—claims that a law violates a constitutional right are surely therein.

No. Now what’s the topic?

Precedent is just as important as the original text of the Constitution. If everyone has always considered the Vice President to be part of the Executive Branch, I’d say that’s what he is.

The main reason the problem has arisen is that the Constitution gives the Vice President very little unique power. He can preside over the Senate (which could mean nothing depending on how the Senate decides to govern itself) and cast tiebreaking votes. He can take over the role of the President if something terrible happens to the President. In practice, what most Vice Presidents, including Cheney, have actually spent most of their time doing is just stuff the President gave them to do while they were sitting around waiting to perform their Constitutional duties. In this capacity, I would think the Vice President has to be considered part of the Executive Branch, since he is exercising executive power that the President has delegated to him.

So, since both Palin and Biden specifically stated the role, as per The Constitution, Biden was wrong and Palin, and Cheney, were right. Right?



Complicating this is the fact that there is a Senate office called the Office of the Vice-President - it is funded by legislative branch funds and has staffing. These are Cheney (or Gore, or Quayle, etc.) staffers that get their salaries from Capitol Hill - other staffers are executive branch appointees.