At Volokh Conspiracy, Eugene Volokh: If VP Becomes Acting President When President Is Temporarily Disabled, What Happens to VP's Tiebreaker Vote? From the introduction:
The Vice President can break a tie in the Senate, which is especially important when the Senate is split 50-50, as it is now. Say a President gets ill enough that he recognizes that he's becoming temporarily incapacitated (or the Vice-President and the majority of the Cabinet so recognizes, for instance if the incapacitation comes on suddenly). The VP would become Acting President; but would she still be able to cast the tie-breaking vote in the Senate?
Professor Volokh says no, mostly based on the text, which says (Art. I, Sec. 3):
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
Thus (it seems) the VP ceases to be President of the Senate (and presumably loses the tiebreaking vote associated with that office) when the VP assumes the office of President of the United States.
Does the 25th Amendment (which provides for the VP temporarily taking over the President's duties) change the assessment? One might argue that it does. The Amendment says that in case of disability, the "powers and duties [of the President] shall be discharged by the Vice President as Acting President." Perhaps, then, the VP is not in this situation "exercis[ing] the Office of President of the United States" (as the VP would do if the President died and the VP succeeded to the office of President) but rather is simply exercising the President's "powers and duties" while retaining the office of Vice President (and thus also remaining President of the Senate).
Professor Volokh rejects this reading mostly on the basis of the legislative history, which contains this exchange:
Mr. SALTONSTALL… Under the Constitution, the Vice President is President of the Senate, but if he became Acting President under this amendment, he would no longer be President of the Senate, but the President pro tempore would become the President of the Senate. Is that correct?
Mr. BAYH [a principal author of the amendment]. That is correct.
Mr. SALTONSTALL. The Vice President would become Acting President and thereby lose his title as President of the Senate. Is that correct?
Mr. BAYH. That is correct.
Is that enough? Not if the language were clear the other way, I'd say, but here it's not clear the other way. Would Justice Scalia's legendary aversion to legislative history in statutory interpretation carry over to constitutional interpretation in this setting? It seems like it would. But not all originalists would agree. The exchange seems somewhat persuasive to me, especially if there isn't any legislative history or other discussion pointing the other way. Not because we ultimately care about the intent of Bayh and Saltonstall, but because the way they read the language is (somewhat) indicative of its ordinary meaning.
Still, I don't think it's as clear a case as Professor Volokh does.
Posted at 6:24 AM