Wednesday, May 30, 2012

The Vice President and the Senate

Gerard N. Magliocca

One fascinating tale that comes out of Robert Caro's multi-volume biography of Lyndon Johnson is that LBJ tried to remain the de facto Majority Leader of the Senate after he was elected Vice President. Johnson, of course, was the Senate Majority Leader before the 1960 election, and he tried to merge his position as the Senate's presiding officer (the only constitutional function given to the Vice President) with his parliamentary role as the Democratic boss. The Senate Democratic Caucus was cool to this idea (to say the least), partly out of concern for separation-of-powers and partly because too many senators were tired of being strong-armed by LBJ. 

On the other hand, maybe this arrangement would be a good idea. It would turn the Vice President into a kind of Prime Minister when (and only when) the President's party holds a Senate majority. That prospect might discourage ticket-splitting between the presidential ticket and Senate races and encourage more care in the selection of the VP. Moreover, this structure would give the Vice President something important to do and make him or her accountable to Congress in a way that is not true now. And it would increase the coordination of the executive and the Senate in a way that fans of parliamentary government would like. (If you don't like parliamentary systems, then you'll probably hate this idea.) Finally, this dual role would be perfectly constitutional. (You could, by the way, take this thought a step further and have the Speaker of the House--who need not be a member of the House--named by the President in consultation with the majority party there.)


Interesting idea, and as you point out, it's not particularly unconstitutional. Which is something of an oddity among new innovations in governing...

With regards to the no comment post below, if I were more litigious, I'd join a class action suit for the sprain to my optic nerve from all the eye rolling recent blog posts from the left on the ACA have caused. Man, they're really losing it...

I have no idea how litigious Brett may be, but surely he lacks class for that type of action, as that class would represent the fictive liberty interests of health care free-riders.

Yes, it's understood you think liberty interests are fictitious, and enumerated powers an archaic curiosity with no modern relevance. The point I was addressing was the hysterical nature of a lot of the liberal arguments that the Court can't possibly rule against them on the ACA.

I mean, there's arguments, and then there are maddened outbursts, and it seems that lately the left has lost the capacity to distinguish.

Anyway, concerning Gerald's post, he's right that those who don't like parliamentary systems won't like it. My personal opinion is that a lot of the dysfunction in the legislature, (And it certainly IS dysfunctional!) is due to the rules having so completely transferred the power of individual members to the leadership, that for many purposes it's a body of a half dozen real members, and the rest are just window dressing.

With the leadership coming almost exclusively from "safe" districts where the only real election is the party primary, this has drastically increased partisanship.

BTW, I think the capta images are now reaching the point of diminishing returns. We're driving the evolution of OCR to be better than humans, and that's good, but soon only the bots will be able to post...

Brett may qualify for this:

" ... but soon only the bots will be able to post..."


Not all liberty interests are fictive, but due process protects true liberty interests, as liberty is not absolutist. Indeed, absolutists are hysterical in ignoring due process limitations on the 5th Amendment's " ... life, liberty and property ...."

I don't think this violates the text as such but the spirit seems to be that the VP is a more neutral presiding officer.

Brett again singles out "the left" which in this case is strange to me since Volokh Conspiracy and other non-left blogs have quite a few ACA posts, a lot more then here btw, and some seem a tad "hysterical" (e.g., "the left" apparently is trying to "intimidate" John Roberts).

Likewise, Shag et. al. doesn't agree with his views so is said to not think there are "liberty interests" etc. Fairly typical. On both sides really. So, I won't just say one group is doing it, since that would be slanted.

Finally, curious citation to the leadership. Somewhat more true for Republicans, which is more united, but since even John Boehner has trouble getting his caucus together, curious. If anything, that was more true in the past (when, perhaps, in some hazy time, Brett thinks things went okay), not in the modern era where individual legislators have much more power, in fact can hold things up themselves.

But, I agree with the "please prove you're not a robot" bit. Hard on the eyes. What's wrong with single words in clear type?

Too easy for OCR to handle. It's an arms race, they're making the tests harder as the bots get better at reading.

The problem is that the *people* aren't getting any better at reading. The bots are inevitably going to win this arms race. Flatly put, we need a better way of distinguishing bots from people.

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I take it that this is offered in the spirit of an interesting idea, not a serious proposal. But I am not sure what it means to be the “de facto Majority Leader.” I doubt that it would be possible to give the VP the actual powers of the Majority Leader, such as they are (eg, the right of first recognition). The other source of the Majority Leader’s authority is the simple fact that his colleagues elected him- that can’t be given to the VP either.

So are you just suggesting that it would be a good thing if the Senate Democrats/Republicans agreed to go along with whatever the VP wants (when of the same party)? Assuming that there is some way of making that happen, why would it be the VP, rather than the President, who became the “de facto Majority Leader”? Wouldn’t the VP, under normal circumstances, just be relaying the President’s wishes? The VP doesn’t have any power to do anything for or to the Senators, after all.

As for constitutionality, I would just note that the Senate would likely have serious constitutional concerns, in the broad sense, about any expansion of the VP’s role. Remember how upset people were that Cheney was attending the weekly meetings of the Senate Republicans.

To give another example, I have it on good authority that when Chief Justice Rehnquist wanted to sit down with Senate leaders to talk about the process for Clinton’s impeachment trial, it was politely explained to him that his role in the trial was to sit down and keep his mouth shut until the Senate told him to do otherwise.

mls' comments about the Senate make sense. However, with his expertise on Congress, I wish he had addressed Gerard's comment on Speaker of the House.

mls' "good authority" on CJ Rehnquist regarding the latter's impeachment role is quite interesting. Perhaps the Senate's rejection inspired Rehnquist to add 4 yellow stripes to his robe, although some thought it a tribute to Gilbert & Sullivan: simply impeachy!

Aside to Gerard: Jamal Greene's "Fourteenth Amendment Originalism" may be of interest as it relates to the subject of Gerard's new book John Bingham. The article is available via SSRN:

Greene's thoughts on the so-called Dunning School on the reasons for the failures of Reconstruction are most interesting.

(No sooner did I finish Greene's article when I learned of a more recent article by him: "The Case for Original Intent" available via SSRN (that's my next read):

I read Jamal Greene's more recent article, thinking perhaps that an appropriate subtitle might be:

"Rehabilitating Ed Meese's Original Intent"

but it doesn't quite turn out that way. Greene as usual raises many questions on the wisdom of Originalism of all varieties.

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As for constitutionality, I would just observe that the Chair for economic council would likely have serious constitutional issues, in the wide feeling, about any development of the VP’s part. Keep in mind how irritated individuals were that Cheney was joining the every week events of the Chair for economic council Conservatives.Cheap Windows 7 ultimate Key
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