You Decide

I really like Powerlineblog.com and their opinions based on their knowledge of law and the Constitution  .... all three are practicing attorneys.

Two of their blog entries quoted as written.   

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"Sarah Palin Was Right

Posted by John at 4:51 PM

In today's New York Times, Glenn Reynolds takes on the tricky issue of the proper role of the Vice President. Sarah Palin's comments on the Veep's constitutional role in the Vice Presidential debate have been denounced by some, but Reynolds says she was right to emphasize the Vice President's role as part of the legislative branch. As we noted here, (artlcle in full below) it was Joe Biden, not Palin, who mangled the Vice President's constitutional status.

So far, that's not controversial. But Glenn goes further: he argues that the Vice President is properly viewed only as part of the legislative branch, and that it is unconstitutional for the President to delegate executive duties to the Vice President, as has happened routinely in recent administrations.

Glenn's argument is that the old-timers had it right. The Vice Presidency, properly viewed, is as insignificant an office--unless and until the President dies or is removed from office--as it was considered through most of our history. He adds policy arguments to the effect that entangling the Vice President in executive policy can be problematic. Possibly so. But I think the modern approach to the office is here to stay.

We should consider ourselves lucky if it's only Vice Presidents who exercise arguably-unconstitutional executive powers. At least they are elected officials. A far more disturbing phenomenon was Bill Clinton's delegating executive authority to his wife. That didn't work out so well, which doesn't necessarily mean we've seen the last of the idea. "

http://www.powerlineblog.com/archives/2008/10/021896.php

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"Biden Mangles the Constitution

This isn't what's conventionally described as a gaffe, and it won't swing any votes, but last night Joe Biden garbled the Constitutional role of the Vice President. I wanted to read the transcript before commenting; here was Gwen Ifill's question:

Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

Here is Biden's answer, in full:

Vice President Cheney has been the most dangerous vice president we've had probably in American history. 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 Branch. 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 vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he's part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.

For a man of Biden's experience, this is a surprising series of misstatements. First of all, he gets wrong one of the most basic facts about the Constitution: Article 1 establishes the legislative branch, not, as Biden said, the executive branch. This is not exactly an obscure fact; my 17-year-old daughter pointed it out at the time.

Second, it simply isn't true that the Constitution treats the Vice President only as a member of the executive branch. The Vice President is mentioned in Article II as part of the executive branch, but he is also given legislative powers by Section 3 of Article 1, which establishes the Senate:

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

Vice President Cheney's "bizarre notion" is in keeping with the plain text of the Constitution.

Finally, Biden misstated the Vice President's role in the Senate. It isn't true that he "preside[s] over the Senate, only in a time when in fact there's a tie vote." The Constitution contemplates that the Vice President will be the full-time President of the Senate, replaced by a President pro tempore "in the absence of the Vice President." It's true that the Vice President only gets to vote in case of a tie; but, of course, that's the only time it matters.

If Joe Biden were a high school student taking a test on the Constitution in a government course, he would get a C or a D. Some would say his mistakes were minor, and, as I said, they certainly won't swing any votes. But it is distinctly odd that a man who has been in the Senate for more than three decades doesn't understand the Constitutional role of the Vice President with respect to that body.  "

http://www.powerlineblog.com/archives/2008/10/021676.php