What’s a Vice President To Do?

As the first female and first Asian American and first Black person to become Vice President in the United States, Kamala Harris inspired considerable excitement when she was inaugurated on January 20, 2021. Introducing her, Senator Amy Klobuchar said, “little girls and boys across the world will know that anything and everything is possible.”

While Klobuchar’s statement might well be true, there are questions about what is possible for Vice President Harris to do. After all, the Constitution provides only two jobs for the veep. One is to wait for the president either to die or to be removed from office, in which the case the next-in-line becomes president. John Adams, who basically twiddled his thumbs for eight years as George Washington’s vice president, said that the position is “the most insignificant office that ever the invention of man contrived.”

Adams might well have been wrong, however, because of the other duty the Constitution assigns to this role—to preside over the Senate and cast a vote in case of a tie. With the Senate currently divided fifty-fifty between Republicans and Democrats, Vice President Harris might be very busy for at least the next two years. (A correction to the previous sentence: Two members of the Senate—Bernie Sanders of Vermont and Angus King of Maine—are both Independents. But they caucus and generally vote with Democrats.) In fact, just two weeks after her inauguration, Harris cast her first tie-breaking vote to support President Joe Biden’s coronavirus relief plan.

Although such vice-presidential votes are rare, they can be historically important. In 1789, Washington wanted to know if he could fire his Cabinet members without getting permission from the Senate, which had the constitutional responsibility of approving them. With the Senate split, Adams cast the vote that determined that he could. (As a result, former President Donald J. Trump fired a record number of Cabinet members and appointees with no input from the Senate.)

In both of these situations, the vice president, not surprisingly, voted with the president. In a bizarre episode during George W. Bush’s presidency, however, his vice president, Dick Cheney, acted against him! In 2007, the Supreme Court was considering a case that raised the following question: to what extent does the Second Amendment allow private citizens to own guns? Paul Clement, the Solicitor General of the United States, who was appointed by Bush, argued that the case should be sent back to a lower court for clarification. Cheney, though, favored gun ownership, and he signed a brief on behalf of many members of Congress urging the Supreme Court to decide that the Constitution allows people to “keep and bear arms.” The following year, the court did so.

Many people were perplexed that the vice president had broken with the executive branch’s position. After all, wasn’t he a member of that branch? Cheney responded that he was a member not only of the executive branch but also of the legislative branch, given that the VP presides over the Senate. Was Cheney right? Can a vice president belong to both branches of government?

The situation is complicated. The Constitution bars members of Congress from accepting appointments in presidential administrations unless they resign their seats. This is the so-called “Incompatibility Clause,” which says that legislative service—that is, making laws—is incompatible with being an executive—and executor of the law—at the same time. But the vice presidency seems to be an exception to the Incompatibility Clause.

Perhaps we should look at this position as equivalent to the Australian duck-billed platypus, a creature that defies categorization. Though usually classified as a mammal, it lays eggs, unlike almost all other mammals. Similarly, the vice president is unlike any other creature in the US government, thanks to the Constitution.

Is this a “fault line” similar to the others in Fault Lines in the Constitution—ones that endanger our system of government? Or, is it simply a curiosity, like the platypus? Your answer might depend on what you think vice presidents should do.

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