Tuesday, October 20

Can the Vice President Break a Tie on Appointments?

by Michael D. Ramsey

In the Boston Globe, Laurence Tribe (Harvard) makes an originalist case that the Vice President cannot break ties on appointments votes.  It’s an interesting issue but I am not persuaded. He begins:

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” …

Well, I don’t always take Alexander Hamilton’s word for things either, although Hamilton is persuasive evidence of original meaning when he gives a persuasive account.  Federalist 69, however, doesn’t contain any supporting reasoning on this point, so it’s unclear why Hamilton thought this was so.  Federalist 69 isn’t a description of the Vice President’s powers.  It’s a wide ranging description of the President’s powers, touching on appointments only briefly, and not mentioning the Vice President.  It seems as likely that Hamilton (“writ[ing] like he was running out of time”) simply forgot about the Vice President’s role. I would count this as some evidence, but not at all conclusive.

Professor Tribe next says:

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

Actually I don’t think the facts stated here matter much at all to originalists.  That no Vice President has ever done it proves little; we need to know whether any Vice President ever had the opportunity to do so and declined on constitutional grounds.  (I assume not, or else Professor Tribe would mention it.)  Also, if a Vice President had done so, it would matter a lot to originalists whether it happened early on, or in more recent years.  Originalists don’t generically “emphasize the importance of history when interpreting our Constitution”; they emphasize the importance of immediate post-ratification events as a way of understanding original meaning.

Skipping a bit of modern history clearly not relevant to originalists, we come to:

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

True enough, I suppose, but this isn’t an originalist argument — just an argument that there might be some policy reasons to prefer a different design.  That I don’t doubt: the whole Vice-President-as-President-of-the-Senate seems like a dumb idea to me, but there it is.  Propose an amendment if you don’t like it.

(And incidentally, under the original meaning, giving the Vice President a tiebreaking vote wasn’t akin to giving the President a tiebreaking vote, since it wasn’t assumed that the President and Vice President would be allies (as likely, they would be rivals, as with Adams and Jefferson).  This was of course changed by the 12th Amendment, but that change didn’t change the original meaning of the Vice President’s tiebreaking power.)

Then there is this central structural point:

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

I like this argument because it works closely with the text.  But I think it ends up being inconclusive.  Maybe the framers thought about the design this way.  Maybe that’s why Hamilton said in Federalist 69 that a divided Senate would produce no appointment.  But I can’t see it as more than speculation.  It’s a lot of weight to put on a very subtle point about the text’s structure. We can speculate that the founding generation attached this significance to the placement of the tiebreaking power in Article I, but there’s not much evidence that they did.

And it’s not obvious that they would have drafted the Vice President’s power differently if they wanted to state the tiebreaking vote on appointments expressly: maybe they would have put it in Article II as well, but as likely they would have thought the power in Article I carried over to the next article.  Nothing in Article I says its powers and procedures don’t carry over to later articles, and often they do.  For example, when Congress exercises powers that are not granted in Article I (for example, creating lower federal courts [Article III, Sec. 1] or passing regulations for the territories [Article IV]), it follows the same procedures outlined in Article 1, Section 7; and the President has the same veto power in these non-Article I situations as is granted in Article I, Section 7.

Finally, as to drafting history:

[T]he Framers first considered a provision that “Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutionallaw — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

I think the change in language matters for a different reason.  Under the original formulation, if the Senate fails to act, the appointment happens.  Under the revised language, if the Senate fails to act, the appointment fails.  That’s a big difference unrelated to ties.  Relatedly, the original draft formulation has the problem of leaving unclear how long the Senate can delay in registering its disagreement before the appointment takes effect; the revision gets rid of this problem by substituting the simple rule of no-action-no-appointment.  So there are multiple reasons to change the language that have nothing to do with a tie.

In sum, it’s an interesting and worthwhile argument, but I think it fails to overcome the simple text.  Article I, Section 3 says that the Vice President, as President of the Senate, “shall have no Vote, unless they [the Senators] be equally divided.”  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates — not just as to powers in Article I, but generally.  Professor Tribe’s contrary arguments aren’t nothing (from an originalist perspective), but they aren’t enough.

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Posted with permission from the Tenth Amendment Center.

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