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My understanding is the Vice President is constitutionally the president of the Senate, although they now usually only preside when a tie-breaker is likely to be needed or when required (e.g. counting Electoral College results).

Typically, the VP turns over their duties to the president pro tempore, who again typically turns over the day-to-day duties of actually presiding to junior senators of their party so they can learn parliamentary procedure.

This is governed by Rule I of the Standing Rules of the Senate:

In the absence of the Vice President, the Senate shall choose a President pro tempore, who shall hold the office and execute the duties thereof during the pleasure of the Senate and until another is elected or his term of office as a Senator expires.

For example, when Obama appointed Merrick Garland to the Supreme Court, Mitch McConnell refused to do anything. Now, as far as I can tell, a Judiciary Committee recommendation isn't required for a vote of the full Senate, and obviously, if they didn't have the votes, it would have been an embarrassing failure, but would Biden have technically been within his rights to force a vote on Garland's confirmation before the whole Senate?

  • Comments are not for extended discussion; this conversation has been moved to chat. – yannis Jan 11 at 15:18
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US Constitution Article 1 Section 5 Clause 2: Rules

Each House may determine the Rules of its Proceedings,...

This includes how discussions are held and how votes are brought to the floor.

President of the Senate

Unlike in the House of Representatives, where the Speaker is both the presiding officer and the leader of the majority party, the presiding officer in the Senate (whether the Vice President of the US, the President Pro Tempore or a junior senator who is just filling in) has little political power according to Senate rules. The main powers are to cast tie-breaking votes and to make judgments about parliamentary rules (which can be appealed to the whole chamber - incidentally, this is how the "nuclear option" was invoked). Otherwise, the majority leader, committee chairs and even individual senators share the power, and the presiding officer must mostly act as they wish. If that means the majority leader (backed by the majority party) do not want to hold a vote, then the presiding officer must respect that under the rules.

Even if the presiding officer was particularly brazen and did not respect the rules, the senators in the majority could begin a quick rebellion using tactics like e.g. fleeing to eliminate a quorum (see below). At some point, the executive branch needs the Senate to accomplish its goals (e.g. passing appropriations), and so fomenting a rebellion among senators would be counterproductive.

Senate Rules

Why can't the rules change? The Senate is a permanent body since only 1/3 of senators' terms expire at the end of a given Congress, unlike the House of Representatives, where all members' terms expire at the end of every Congress. Since the Senate is permanent, its rules live on between Congresses. Rule changes require either a supermajority or the politically-fraught "nuclear option."

Rule VII(3)

The Presiding Officer may at any time lay, and it shall be in order at any time for a Senator to move to lay, before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action allowed under the rules and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate.

This rule allows the presiding officer to supersede pending business with two major constraints: the superseding matter must be from either the President or the House or Representatives and whatever action must be an "appropriate action allowed under the rules." This rule is used for things like announcing that the president has made a nomination, that the president has vetoed a Senate bill or that the House has passed a bill, all three of which require action by the Senate. Other rules (both precedents and explicit rules in the Standing Rules) govern what the appropriate actions are (in general, a first reading and then referral to committee).

Quorums

The Constitution requires that each house can only conduct business when a quorum is present, and defines as quorum as a majority of members of each respective house. This means that if a minority party (or a presiding officer aligned with them) attempted to take command, the majority party could simply flee en masse, leaving only one member to raise points of order about the absence of a quorum and so on. The Senate rules allow a minority of the Senate to empower the Sergeant-at-Arms to arrest vacant members and bring them back to the Senate, but it would still be very hard to do this on a mass scale. (Something similar happened several years ago in Wisconsin, where a slim Republican majority in the state legislature were trying to pass legislation that would weaken unions, and Democrats in the state senate fled Wisconsin. Wisconsin requires a quorum of 60% of members, so in that case the minority party had an effective veto.)

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    Hooray for the egalitarian Senate! – elliot svensson Jan 10 at 17:32
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    The House actually has an office called "majority leader" that is distinct from that of the speaker. – phoog Jan 10 at 17:39
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    Similarly to the Wisconsin case, a bunch of Texas Democrats fled that state in 2003 to avoid allowing a quorum on a redistricting measure. – Michael Seifert Jan 10 at 21:03
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    Excellent answer. I was starting to outline an answer in my head only to look down and see that you'd already written it. – ohwilleke Jan 11 at 18:14
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    "Each House may determine the Rules of its Proceedings,... This includes how discussions are held and how votes are brought to the floor." but that isn't really a counterargument to the assertion that the Senate has a duty to consider a nomination. If the Senate could shirk its constitutional duties by making rules, those duties would be meaningless. For example, if the Senate made a rule that it would assemble every 24 months, that would clearly be unconstitutional in the face of Article I, section 4. – phoog Jan 11 at 18:50
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Not really.

The Vice President, while technically a member of the Senate, is not really a Senator and their vote only comes into play for ties. In order to do that, the floor would have to let him do so (emphasis mine)

Other than to succeed to the presidency upon the death or resignation of a president, a vice president's only constitutional duty is to preside over the Senate. Vice presidents cannot vote in the Senate, except to break a tie, nor may they formally address the Senate, except with the senators' permission.

So, in this case, Biden would have needed the permission of the majority of Senators to do this. Since they were opposed, he would not have been given permission.

  • Is "formally addressing" the same thing as "bringing a motion to the floor as presiding officer"? – Azor Ahai Jan 10 at 17:29
  • @AzorAhai I don't see how you can bring something to the floor without formally addressing Senators – Machavity Jan 10 at 17:30
  • "Formally address" sounds like delivering a speech. I take it that's a "yes" to my question, then? – Azor Ahai Jan 10 at 17:36
  • How is the vice president "technically a member of the Senate"? There is no formal definition of the term "member of the Senate," and the Senate rules frequently use the term in a way that obviously excludes the Vice President. But the question is not asking about whether the VP can vote in the Senate or even address the Senate, but whether as president of that house he can force them to consider a certain matter. – phoog Jan 10 at 17:37
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    This answer does not take into account Rule VII(3): "The Presiding Officer may at any time lay...before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action." – phoog Jan 10 at 18:26

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