March 3, 2011 – Article I, Section 03, Clause 4-5 of the United States Constitution – Guest Essayist: David Addington, Vice President for Domestic and Economic Policy of The Heritage Foundation and a former chief of staff and counsel to the Vice President of the United States

Article 1, Section 3, Clause 4-5
4:  The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Article I of the Constitution creates the office of Vice President and assigns to it two legislative functions: to preside over the Senate and to vote in the Senate in case of ties.  The legislative functions of the vice presidency are separate from the two executive functions the Constitution as amended assigns to the Vice President (succession to the Presidency and a role in determining presidential inability).  The legislative functions of the vice presidency take little of a modern Vice President’s time, but they may on occasion have a significant impact on public events.

The Constitution specifies that the Vice President “shall be President of the Senate,” but does not specify what activities that senatorial presidency will entail, other than counting the electoral votes for President and Vice President every fourth year in the presence of both Houses of Congress.  Today, under the rules and precedents of the Senate, presiding over the Senate involves little beyond recognizing Senators to speak in debate, maintaining order in the Senate, occasionally ruling on a question of parliamentary procedure, administering the oath of office to Senators, and from time to time making an appointment to a legislative entity based on the advice of party leaders.  A Vice President rarely presides over the Senate.  Indeed, the Senate’s elected President pro tempore rarely presides.  Senate rules allow the President pro tempore to designate any Senator to preside over the Senate in his place and allows that designated Senator in turn to designate another Senator to preside; in practice the Senators of the majority party take turns presiding over the Senate for brief periods.

The Vice President’s other legislative function — voting in case of ties among the Senators — can be of historical moment, depending upon the underlying legislative proposition on which Senators are evenly split.  In his eight years as America’s first Vice President, John Adams cast tie-breaking votes in the Senate 29 times, according to the Senate Historical Office (some authors claim 31 times).  His tie-breaking votes defeated, among other things, legislation to give the Senate a role in the dismissal of executive officers and to delay the move of the Nation’s capital from New York City to Philadelphia.  At the other end of our Nation’s constitutional history, in his eight years as Vice President, Richard B. Cheney cast tie-breaking votes 8 times.  His tie-breaking votes organized a Republican majority in a Senate that had an equal number of Democratic Senators and Republican Senators and gave final passage to major tax cut legislation in 2003.  Thus, it is clear that the constitutional authority of a Vice President to cast a tie-breaking vote in the Senate can have significant consequences.

In comparison to the authority the Constitution vests in the President, the Congress, and the Supreme Court, the Constitution vests very little authority in the Vice President.  Indeed, Vice President John Adams, in a letter dated December 19, 1793, to his wife Abigail, gave his experienced verdict on the vice presidency: “the most insignificant Office that ever the Invention of Man contrived or his Imagination conceived.”  Yet, in modern times, Vice Presidents have had significant influence.  Although, as the U.S. Department of Justice said in a legal opinion on March 9, 1961, “the Vice President is an elective officer in no way answerable or subordinate to the President,” modern Presidents have sought the advice and assistance of Vice Presidents, who have given it.  Ultimately, a Vice President is influential within the executive branch as long as the President finds the Vice President’s advice persuasive and assistance useful.  For modern Vice Presidents, their influence within the executive branch resulting from their relationship with the President has far exceeded their influence flowing from their very limited constitutional authority.

– David S. Addington is the Vice President for Domestic and Economic Policy of The Heritage Foundation and a former chief of staff and counsel to the Vice President of the United States

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