Article I, Section 3, Clause 4 — President

ArtI.S3.C4.1 President of the Senate

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