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02/28/2022

More from Vasan Kesavan on the Vice President's Tie-Breaking Power
Michael Ramsey

Responding to this post on the Vice President's tie-breaking power, Vasan Kesavan comments: 

I do think the VP has the casting vote on appointments under the Appointments Clause - no question.  Footnote 246 of my Electoral Count Act article wasn't complete and I think I straddled the VP-casting-vote-in-appointments question without embracing an answer -- I should have taken it further.  It's an easy, straightforward case as a matter of text.  It's only when one looks to The Federalist that there is confusion. Professor Tribe's op-ed and my footnote illustrate the dangers of quotation from The Federalist - the relevant sentence seems absolute. But, in the context of the whole paragraph it becomes clear that Publius (Hamilton) isn't talking about the Vice President at all.  Hamilton is comparing the power of the President with that of the governor of New York (the "power of the chief magistrate of this State").
 
It's worth remembering that Publius made some mistakes too, elsewhere - a topic for another day.  The VP's casting vote in appointments isn't one of them though.  There are good explanations for why it's still possible that no appointment could be made in the case of a tie - if the VP doesn't vote to support the President's nomination (as you point out, there was no "perhaps" about it - the VP was the President's rival or "chief opponent" as I do note in the footnote) or if the VP is absent.
 
Finally, looking back on n. 246, I'm not sure why I wasn't firmer about the VP having no casting vote in the contingency election for VP in the Senate under the Twelfth Amendment. It's clear that the VP does not have a casting vote in this circumstance.
 
I agree on all counts.  I feel better about this because, as my initial post indicated, I was concerned that he and I were reading the text differently -- but happily we aren't.  Professor Tribe is just wrong on this point.  (I don't worry about disagreeing with Professor Tribe, who's not really an originalist though sometimes makes excellent originalist arguments, but I do worry about disagreeing with serious originalists like Vasan Kesavan).