President of the Senate

Article I, Section 3, Clause 4:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

During the Constitutional Convention, the Framers initially contemplated that the Senate would choose its president; however, after the Framers decided to have a Vice President, they decided by a vote of eight to two that the Vice President would be President of the Senate.1 In his Commentaries on the Constitution of the United States, Justice Joseph Story notes that the Framers may have made this decision to give the Vice President a role in the government. Justice Story stated:

It has also been coldly remarked by a learned commentator, that “the necessity of providing for the case of a vacancy in the office of president doubtless gave rise to the creation of that officer; and for want of something else for him to do, whilst there is a president in office, he seems to have been placed, with no very great propriety, in the chair of the senate.” 2

Justice Story further reasoned, however, that by making the Vice President, President of the Senate, the Framers saved the Senate from the difficulties of selecting a President of the Senate from among themselves, which would have given the state from which the president was selected either more or less influence than the other states. If the President of the Senate retained his right to vote as a Senator, the state he represented would have three votes in the event a vote was tied. If the President of the Senate was only allowed to cast a vote when there was a tie, then his state would have one less vote than other states absent a tie.3 Justice Story, moreover, notes that the states would likely have a high regard for the Vice President of the United States as they would have selected him for the office of Vice President.4

In addition to casting the tie-breaking vote when the Senate is divided equally, the President of the Senate also, among other things, conducts the electoral count5 and attests that an enrolled bill has been passed by the Senate.6 By affixing his or her signatures to an enrolled bill the President of the Senate along with the Speaker of the House indicates that the bill has passed Congress and is ready for presentment to the President. Describing this process in Marshall Field & Co. v. Clark, Justice John Marshall Harlan stated:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the Legislative Branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.7

The signing by the President of the Senate and Speaker of the House of an enrolled bill is not mandated by the Constitution, but instead is a legislative practice.8 The Court in Marshall Field, however, found that a bill with the official attestations of the President of the Senate, Speaker of the House, and President was “sufficient evidence of itself . . . that it passed Congress.” 9 More important, even if a discrepancy arose between an officially attested bill and House or Senate journals of proceedings mandated by Article I, Section 5,10 the Court could not resolve such a dispute as “[j]udicial action, based upon such a suggestion [that “the presiding officers, committees on enrolled bills, and the clerks of the two houses” conspired to thwart a law intended by Congress], is forbidden by the respect due to a co-ordinate branch of the government.” 11

1: Joseph Story, Commentaries on the Constitution of the United States § 732 (1833). During the Constitutional Convention, several delegates expressed concern that having the Vice President serve as President of the Senate would excessively involve the Executive Branch in the Legislative Branch’s activities. See also 2 Records of the Federal Convention of 1787 536 (Max Farrand ed., 1911) (Elbridge Gerry of Massachusetts commenting that “We might as well put the President himself at the head of the Legislature. The close intimacy that must subsist between the President & vice-president makes it absolute improper;” George Mason of Virginia described as thinking that “the office of vice-President an encroachment on the rights of the Senate; and that it mixed too much the Legislative & Executive, which as well as the Judiciary departments, ought to be kept as separate as possible.” ).
2: Joseph Story, Commentaries on the Constitution of the United States § 733 (1833).
3: Id. at § 736.
4: Id. at § 735 ( “A citizen who was deemed worthy of being one of the competitors for the presidency, could scarcely fail of being distinguished by private virtues, by comprehensive acquirements, and by eminent services. In all questions before the senate he might safely be appealed to, as a fit arbiter upon an equal division, in which case alone he is entrusted with a vote.” ).
5: U.S. Const. amend. XII ( “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President . . . .” ).
6: See, e.g., Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). In the event the Vice President is unable to fulfill his duties as President of the Senate, Article I, Section 3, Clause 5, provides for the Senate to choose a “President pro tempore, in the Absence of the Vice President or when he shall exercise the Office of the President of the United States.” U.S. Const. art. I, § 3, cl.4.
7: Id. at 672. The Court continued: “As the president has no authority to approve a bill not passed by congress, an enrolled act in the custody of the secretary of state, and having the official attestations of the speaker of the house of representatives, of the president of the senate, and of the president of the United States, carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by congress.” Id.
The Court noted, however, that “[t]here is no authority in the presiding officers of the house of representatives and the senate to attest by their signatures, not in the president to approve, nor in the secretary of state to receive and cause to be published, as a legislative act, any bill not passed by Congress.” Id. See also Harwood v. Wentworth, 162 U.S. 547 (1896).
8: Marshall Field & Co., 143 U.S. at 671.
9: Id. at 672.
10: U.S. Const. art. I, § 5, cl. 3 ( “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment requie Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” ).
11: Id. at 673. See also Baker v. Carr, 369 U.S. 186 (1962) ( “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” ).