Glenn Reynolds argues that the Vice President is a legislative officer for the purpose of the constitution.
Nowadays, we tend to think of Vice Presidents – wrongly – as a sort of junior or co-President, but that’s not actually how it works at all. As I wrote in the Northwestern Law Review piece:
The Constitution gives the Vice President no executive powers; the Vice President's only duties are to preside over the Senate and to become President if the serving President dies or leaves office. Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line. The Vice President really is not an executive official. He or she executes no laws--and is not part of the President's administration the way that other officials are. The Vice President cannot be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment.
While I think Glenn is doing God’s work with his blog and this Substack essay (to which I recently subscribed, and everyone should do the same), I will make a modest objection for the sake of the argument. When Glenn states that “… presiding over the Senate is surely a legislative function par excellence.” he begs the question.
A Vice president is unquestionably a “spare.” But if the Constitution does not specify that the Speaker of the House is a member (Article 1, Section 2), it’s possible that the President of the Senate shall not be a Senator and therefore is not a legislator. After all, he has no vote unless the Senate is equally divided. In other words, the Vice Presidency is, for all practical purposes, a Constitutional spare, a baby in the womb waiting to be born. Neither fish nor fowl nor good red meat.
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