That Constitutional Flub

As I said elsewhere, I think Palin did a great job on the debate overall, and Biden did good as well, and made no major gaffes, except possibly one. I say possibly, not because it wasn't a gaffe (It was), but because it's debatable how big of a deal it is.

There was a question asked about the Vice Presidency and Cheney, and Biden answered thusly (via Ace of Spades):

"Vice President Cheney has probably been the most dangerous Vice President we've had in American history. He has the idea...he doesn't realize that Article I of the Constitution defines the role of the Vice President of the United States. That's the executive. He works in the executive branch. He should understand that. Everyone should understand that.

And the primary role of the Vice President of the United States of America is to support the President of the United States of America. Give that President his or her best judgment when sought and as the Vice President to preside over the senate only in a time when in fact there is a tie vote. The constitution is explicit, the only authority the Vice President has from a legislative standpoint is to vote only when there is a tie vote. He has no authority relative to the Congress. The idea that he's a part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of the unitary executive..and look where it's gotten us.

Now most of that statement was fine in my book, but Biden got it wrong when he referenced Article I as defining the executive role of the Vice President. Article II deals with the Executive branch. Article I, Section 3, Clause 4 gives the VP titular headship of the Senate, and the deciding vote in the case of a tie. Article I grants the VP legislative powers, not Executive powers, and as Ace points out:

Article II does not extend to the VP any executive powers. Sections 2 and 3 specifically grant duties and powers to the President; the VP goes unmentioned. In fact, Article II provides for compensation for the President, but doesn't direct the VP to receive anything!

So Joe Biden is talking out his ass when he says "Article I of the Constitution defines the role of the Vice President of the United States. That's the executive. He works in the executive branch." Article I doesn't define the VP's executive roles. In fact, neither does Article II, because the VP has no role to play within the executive branch except to take over in case of death or incapacitation of the President.

Now to be fair to Biden, I suspect what he meant to say was that Cheney has no real legislative power, and is bound to the Executive branch. Cheney asserted that he wasn't a part of the Executive, and Palin agreed. The thing is though, according to Glenn Reynolds, that argument may not be as absurd as it first seemed.

Now, I'm no constitutional scholar, so I'm hoping the SF legal crew can help me out here, but I think the issue was that Cheney was claiming the right not be bound by Executive in order to avoid subpoenas. Let me say that I don't think this argument justifies Cheney's imperious power grabs, and even Reynolds argues that Cheney's argument poses real problems for the modern activist VP. Frankly, I'm getting kind of confused even writng this, so this is a bit different than a gaffe. I think what some took issue with was Biden claiming to be a constitutional expert, which he clearly ain't, at least not on this. Not to mention that his saying the Article I dealt with the Executive.

Another related issue was Palin's assertion that the constitution gives leeway as far as his powers are concerned. I'm still not quite sure what she meant, but to be fair to her, perhaps she was simply arguing that the President can decide how much Executive power to delegate to the VP, in a sort of roundabout way?

This isn't really my area of expertise, so any help on the particulars is appreciated.

ADDED: Biden may have made a gaffe on the Constitution, but according to Michael Totten, it wasn't his only one. Looking back, I noticed that something was off with his Lebanon analysis as well, and reading the full quote, I stand amazed that he said what he said. That was a major gaffe, for a professed foreign policy expert. (HT: Instapundit)