What is a Vice President?

This is not in fact the title of a Valentine’s Day poem for Kamala Harris, but of some preliminary thoughts in response to a Politico article revealing that former Vice President Mike Pence intends to resist a grand jury subpoena from Special Counsel Jack Smith on grounds that it violates the Speech or Debate Clause.

That raises a boatload of novel constitutional questions, but the most basic is just what exactly, constitutionally speaking, is the vice presidency? One “expert” answered the question this way in 2008 (hat tip: Derek Muller):

Vice President Cheney has been the most dangerous vice president we’ve had probably 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 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’s gotten us. It has been very dangerous.

Actually, Article I, which of course deals with the legislative branch, says nothing about the vice president working in the executive branch. And Article II, which is probably what then-Senator Biden meant to reference, does not say anything about the vice president supporting, reporting to, or advising the president. In fact, as the Office of Legal Counsel has explained, “[t]he Constitution allots specific functions to the Vice President in the transaction of business by the Legislative Branch (art. I, §3) but neither grants nor forbids him functions in the conduct of affairs of the Executive Branch.” Participation of the Vice President in the Affairs of the Executive Branch, I Op. O.L.C. Supp. 214 (1961).

Biden’s claims about the vice presidency, made during the 2008 presidential election, related to then-Vice President Dick Cheney’s contention that the vice president was not part of the executive branch for purposes of an executive order granting the National Archives oversight authority over certain national security information in the executive branch. While this position elicited widespread outrage and mockery, Cheney’s view was not without some legal and historical substance. See, e.g, James D. Myers, Bringing the Vice President into the Fold: Executive Immunity and the Vice Presidency, 50 Boston Coll. L. Rev. 897, 901 (2009) (“Cheney’s claims reflect the reality that the constitutional and political status of the Vice President is still somewhat amorphous.”); Glenn Harlan Reynolds, Is Dick Cheney Unconstitutional?, 102 Nw. U. L. Rev. 1539, 1540 (2008) (“Despite the unfriendly political response, the argument that the Vice President is a legislative official is not inherently absurd.”). Furthermore, though Cheney’s argument may have been inconsistent with his assertions on other occasions of executive privilege for the office of vice president, it may have been the latter that should have given way. Reynolds, 102 Nw. U. L. Rev. at 1540 (“[T]he positioning of the vice presidency within the legislative branch—or, at any rate, outside the executive—may be appropriate. Such a reading, however, would render Cheney’s role within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.”).

A few years ago Roy Brownell, a lawyer in Washington, D.C., wrote an article arguing (persuasively imho) that while the vice president is popularly considered a subordinate of the president, and often (though not always) acts as such, “as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.” Roy E. Brownell II, The Independence of the Vice Presidency, 17 Leg. & Pub. Pol’y 297, 300-01 (2014). The vice president’s independence is founded, first and foremost, on the fact that she cannot be removed by the president. Id. at 303. Moreover, contrary to Biden’s suggestion, the Opinion Clause, which authorizes the president to require the opinion in writing of the principal officer in each of the executive departments, does not apply to the vice president. Id. at 314-16. Thus, while the president can ask the vice president for her advice or opinion, he has no constitutional authority to require her to provide it.

In addition, the Twenty-Fifth Amendment, while it to some degree reflects modern assumptions about the vice president’s role in the executive branch, further cements the vice president’s autonomy from the president. Indeed, by giving the vice president the primary responsibility to determine when the president is unable to discharge the powers and duties of his office, even contrary to the president’s wishes, section four of that amendment “underscores the Vice President’s independence” and the fact that the president has no power to remove her from office. Id. at 308-10.

Finally, and most relevantly to the issue at hand, the vice president serves as the president of the Senate, where she has a number of functions, including recognizing senators on the floor, making rulings from the chair, and breaking tie votes. Id. at 316-17. Other functions including presiding at impeachment trials and, of course, presiding over the counting and certification of electoral votes. All of these functions are legislative in nature and are exercised by the vice president independently of the president. Id. at 316-17 & nn. 93 & 97. As Brownell observes presciently: “To permit the President, as a constitutional matter, to order the Vice President to preside a certain way or to vote a certain way would undercut the freedom of the Senate to carry out its own constitutional functions.” Id. at 317.

 None of this proves that the vice president is necessarily covered by the Speech or Debate Clause, much less that the specific questions that the grand jury wishes to ask of the former vice president would violate that clause. It does, however, suggest that Pence’s legal argument is not implausible on its face. See Myers, 50 Boston College L. Rev. at 936-37 & n. 307 (suggesting the possibility of limited legislative immunity for the vice president). Furthermore, Pence’s decision to invoke legislative privilege, rather than executive privilege, is interesting in its own right. It underscores that on the matters at issue Pence was fulfilling his own independent constitutional duties, not exercising executive branch functions delegated to him by the president. As a politically loyal vice president, Pence listened to what former President Trump and his minions had to say, but as a constitutionally independent officeholder, he made his own decisions based on the Constitution and the oath he took to defend it. This framing of the matter may have both political and legal ramifications in the months to come.