More on the Vice Presidency and the Executive Branch:
Recent revelations that the Office of the Vice President is not in the Executive Branch brought me to read the government's brief filed in Cheney v. United States District Court, the 2004 Supreme Court case on whether a civil suit could force disclosure of meetings held by the Vice-President to advise the President on energy policy.
The brief, filed on behalf of the Vice President, argued:
The brief, filed on behalf of the Vice President, argued:
Any attempt by Congress to regulate the President's ability to obtain advice from officials in the Executive Branch would unconstitutionally interfere with powers expressly reserved to the President by the Constitution. See, e.g., U.S. Const. Art. II, § 2, Cl. 1 ("The President *** may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.) . . .Seems like a strange point to make if the OVP isn't in the Executive branch.
During the Constitutional Convention of 1787, the Framers considered several times whether to provide the President with some form of advisory council that included representatives of the Legislature or Judiciary. See James Madison, Notes of Debates in the Federal Convention of 1787, at 487-488, 509-510, 569, 598-602 (W.W. Norton & Co. 1966) (debates of Aug. 20, 22, and 31 and Sept. 7, 1787). Each such proposal was rejected. The Framers chose instead to enshrine in Article II the President's power to seek advice from those under his direct control. As Alexander Hamilton subsequently explained, the unity of the Executive would be destroyed if the President were "subject[ed] in whole or in part to the controul and co-operation of others, in the capacity of counsellors to him.” The Federalist, No. 70, at 472-473 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961). The Opinion Clause thus explicitly confirms the President's authority to gather information and opinions from his subordinates. The history of that provision, the structure of Article II, and the obvious constraints of the separation of powers make it clear that the President's authority to receive opinions from Executive officers is not subject to interference from or control by the other Branches.
"The United States District Court for the District of Columbia entered discovery orders directing the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President." 542 US at 372, emphasis added.
Odd thing to say if he's not. Odd, too, for the government to allow the opinion to stand uncorrected.
Silly partisans.
Tell that to the authors of The Oxford Guide to the United States Government.
It makes me glad that they didn't have blogs back when Clinton was president. If I had had to read some law professor commenting 6 or 8 times a day on the claim that the President is immune from suit because he is an active duty service member (remember that inanity?), I probably would have become a lifelong Democrat.
The modern Vice Presidency, for most purposes, dates back barely 30 years, to Jimmy Carter and his willingness to include Walter Mondale as a Senior Advisor--something foreign to Vice Presidents Rockefeller, Ford, Agnew, etc. going all the way back to Adams.
Historically, the one possible exception was Vice President Martin van Buren, who was a trusted political crony of Andrew Jackson's before becoming Vice President.
In the Constitution, the Vice President is expressly mentioned in Article 1, Section 3, which clearly makes the Vice President an officer of the Senate; Article 2, Sections 1, which involves electing the President and Vice President as well as Presidential succession, and Section 4, which involves impeachment.
The 12th Amendment yoked the election of the President and Vice President (interestingly, the language of the Amendment called for separate ballots for the offices of "President" and "Vice President" but then instructed the "President of the Senate" to conduct the Electoral College canvass).
The 25th Amendment allows the President to name a new Vice President (a la Ford and Rockefeller) and allows the Vice President to serve as Acting President under limited circumstances (the circumstances depending on whether it is with or without the consent of the President).
The bottom line, IMHO, is that when the Vice President is acting as a Senior Advisor to the President, then the Vice President is acting as an Executive Officer. On the other hand, when the Vice President is performing his duties as President of the Senate, then he is acting as an officer of the Legislative Branch.
That's fine except for a few difficulties. First, the plain language of the EO applies to Cheney. The President's subjective intention isn't going to impress a textualist much. If they really want to make that point, they ought to modify the EO. Second, Cheney didn't make that point when first confronted with the issue. Third, the point ignores Cheney's attempts to have his cake and eat it too, conveniently describing himself as immune from Executive Branch rules because he's a "legislator" and yet immune from Congress because he fulfills Executive roles.
But the argument from presidential intent is *terrible*. Presidential intent as a source of legal meaning has all the problems that legislative intent does, *plus* all the problems of secrecy and lack of a public record (whereas legislative intent at least has to build on information that's publicly available.) The sudden revelation of heretofore-unknown Presidential intent that just happens to serve to exempt the Presidency from a rule is the equivalent of a "ha-ha, I had my fingers crossed and you didn't see!" The other party has no way of knowing whether the fingers were really crossed, and no reason to think that the rule is affectd by it one way or the other.
No it doesn't. The President is one person.
Sorry, you're right. It has more problems.
Heck, why not just let the president sign blank pieces of paper into law, then have him write whatever he wants on them? Seems like that's what we're headed for.
"...(whereas legislative intent at least has to build on information that's publicly available.)" ????
As in the 1000 page immigration bill that was to have been voted absent any public hearings or any floor amendments?? A bill crafted by a dozen or so senators (excluding the Pres of the Senate, by the way) behind closed doors, with only input from selected interest groups and the President. OR
As in the Democrats' plan for earmarks to have a total amount voted, without any objects identified, and by which the Majority Leader would have selected earmarked objects at his discretion without explanation to the public, after the vote, just before the conference.
Mr. Kerr:
I cannot find in the portion of the brief that you cite a claim that the Vice President (as a Constitutional officer) is in the executive branch or that the Vice President acting as Vice President is or is not subject to interference by other branches in giving opinions to the President.
Is there more in the brief that addresses this specific question? Or, is this not the question you raise?
In recognizing the absolute immunity of the President, the Supreme Court in Fitzgerald v. Nixon, 457 U.S. 731, 749 (1982), quoted Justice Story:
The Supreme Court has also narrowly constured the legislative immunity conferred by the Speech and Debate Clause. Again quoting Justice Story, the Court opined in Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979), that:
Does this mean that, if he were sued for damages by, say, a victim of waterboarding, that our audacious Vice President would be in the posture that he, with such notable civility, famously told Senator Leahy to do to himself?
Please consider the following passage (which is in the brief, although not in the portion cited above):
Whoever wrote this seems to be taking for granted that "the Vice President (as a Constitutional officer) is in the executive branch"
It's interesting to note that Bush personally said the same thing:
Emphasis added.
To me, this all turns on what Cheney was doing, who controlled his activity, and to whom he was responsible on the items in question. His title, or what the constitution says about that positiion, really doesn't seem very relevant.
Your post speaks to practicality and flexibility in thinking (which the Constitution, as a concise blueprint for a new government) demonstrates in spades. However, you fail to appreciate that every question must be assigned to a doctrinal box in the world of law professors, so your question amounts to heresy here.
You both made the point I tried to make earlier in this thread, though your posts have the added advantage of succinctness.
This entire discussion about Vice President Cheney and the branches of government made me think about the Warren Commission--and which branch of government it operated under.
The Warren Commission was created by Executive Order issued by Lyndon Johnson, chaired by the Chief Justice of the United States, and had four members of Congress (including Gerald Ford) among its members.
So the question in context of these threads is this. When sitting as members of the Warren Commission, were the Chief Justice and the Congressional members sitting as executive officers of the government, as members of the Judicial and Legislative Branches, respectively, or something else?
I think the Vice President is an exception. Note how he appears in both Article 1 and Article 2. And note how the 12th Amendment actually lists the Vice President in two separate ways--as "Vice President" and "President of the Senate" (although obviously someone else could and would be the President of the Senate if the office of Vice President was vacant for whatever reason).
That's a logical way to look at it (although not necessarily the only logical way), but when you look at it that way, Cheney still loses.
Here's "what Cheney was doing:" handling classified information. There are essentially two possibilities: the classified information came into his hands in connection with his legislative functions, or the classified information came into his hands in connection with his executive functions. There is ample reason to assume that what's true is the latter. That is, it's very likely that most (if not all) of the classified information that Cheney handles is executive in nature, rather than legislative. Therefore, it makes no sense whatsoever for Cheney to claim what he has claimed: that he is not part of the executive branch, and is therefore exempt from rules which govern the way any "entity" in the executive branch handles classified information.
If Cheney wants to claim that he never handles executive-branch classified information, and only ever handles legislative-branch classified information, that would be a very different story. But he is not making that claim, and I imagine that everyone would be laughing even harder (if that's possible) if he were to attempt such a claim.
boxing: "every question must be assigned to a doctrinal box"
That's very unfair. No one's trying to trap Cheney in "a doctrinal box." The problem is that he's plainly attempting to be sometimes fish, sometimes fowl, sometimes both, and sometimes neither, and that he's making these choices in a manner not driven by logic or law, but rather by his own whim, whatever serves his interests in the moment, and whatever he can manage to get away with. When the legislative branch tries to exercise legitimate oversight, he thwarts them by claiming executive privilege. Likewise, when the executive branch tries to exercise legitimate oversight, he thwarts them by claiming legislative privilege. This is called having your cake and eating it too. It also goes by another name: swindle.
dave: "I think the Vice President is an exception. Note how he appears in both Article 1 and Article 2."
The Chief Justice is mentioned in Article 1. Does that mean he's part of the legislative branch?
Silly partisans.
There. Fixed it for you.
The three relevent paragraphs of Article 1, Section 3 read:
Notice that the second paragraph says the Senate shall choose "their other officers." Other than whom? The answer is clear since the preceding paragraph names the presiding officer: the Vice President.
As to your question about the Chief Justice, I would note that he only presides in a very limited circumstance--during the impeachment trial of the President--and I would suggest that an impeachment trial is not legislative in the sense that the Vice President has the legislative role of breaking ties, being the President of the Senate, and generally presiding.
Thus, while both the Vice President and the Chief Justice are mentioned in Article 1, the context is key.
This is rather interesting. We've been a country for over two centuries now and only just now are we all asking what the Office of the Vice President is? And where it belongs?
I wonder if Cheney doesn't pull this nonsense to yank everybody's chain.
As I noted in an earlier thread, the Vice Presidency has evolved--and while Presidents prior to Carter used their Vice Presidents for various tasks, it was only with Vice President Mondale that the Vice President became a senior advisor to the President and gained regular, private access to the President.
Additionally, it was not until the 20th Century that the Vice President had much of an executive function--other than taking over as President if the President died in office.
In the past, we have had Presidential-Vice Presidential combinations where the two have actually loathed each other (Jefferson and Adams first and foremost--though they were elected separately).
Personally, I hold the view that the Vice President is a legislative officer when acting as President of the Senate and an executive officer the rest of the time.
Initially, under the U.S. Constitution, both the President and Vice-President are elected by electors. (For practical purposes, the electors were going to be drawn from the States' upper or "patrician" class.) Only the President is designated as the Commander-in-Chief while only the Vice-President is designated as the President, or head, of the Senate. (For practical purposes, Senators were expected to be drawn from the upper or "patrician" class of the several States.) The VP was not provided with a veto over the President(s) acts although the President could veto legislation in which the VP cast a tie-breaking vote in the Senate.
Since the individuals making this argument are presumably intelligent, such an argument cannot be made with the expectation that it may carry the day. The argument is more credible if it's real purpose is to delay resolution and confuse the issue as much as possible.
Or am I missing something?
Careful there. If you go introducing that messy historical gobbledygook, providing context and provoking thought, you might confuse a stunted, linear-thinking lawyer. He might blow a gasket, and you know what comes next in that happenstance.
Based on the text of the U.S. Constitution, the VP is a hybrid between the Executive and Legislative branches of the federal government. In the alternative, the VP is not a part of either the Executive or Legislative branches of the federal government. I am inclined to consider the VP a hybrid in great part because the VP can cast a legislative vote under limited circumstances.
My primary concern is that for the last several Presidential elections, a party's nominee for President unilaterally nominates a candidate for VP who then practically rides the victor's coattails into the Office of VP. Erego, the VP is generally beholden to the President in great part because they are drawn from the same party (or faction, as Madison and Hamilton would have described today's Republicans or Democrats).
However, I am not so sure that the Founding Fathers intended a VP to be beholden to a President for partisan reasons. Remember, parties as we know them today did not even exist at the time of ratification of the U.S. Constitution. Therefore, I submit that if given the foresight to anticipate the existence of today's two-party system, the Founding Father's would not have minded seeing a President elected from one party while the VP is elected from another party because the foregoing outcome would have furthered the primary goal of precluding the concentration of power in any one particular faction.
There is support for your view in that the third Presidential election resulted in the election of John Adams as President and Thomas Jefferson as Vice President--two politicians who, at that time, loathed each other.
However, the 12th Amendment followed after that--making the possibility of a President and Vice President from different "factions" to be a near imossibility.
I already know that VP is "the presiding officer" of the senate, and I said nothing to indicate otherwise, so I don't know why you're restating the obvious.
"he [CJ] only presides in a very limited circumstance"
True. However, breaking ties is also a relatively "limited circumstance." My point is that various inter-branch duties (here's another one: POTUS exercising a veto is a legislative function) are not a basis to claim that someone is in multiple branches, or in no branch (which is what Cheney has variously claimed).
"the Vice President is a legislative officer when acting as President of the Senate and an executive officer the rest of the time"
I think that's a sensible view. Trouble is, it's not what Cheney has claimed.
That is one reason to "assume that the VP is a subordinate to the President in the Executive Branch," but it's definitely not the only reason (various other reasons have been cited around these parts). I don't know why you're implying that it is.
"Based on the text of the U.S. Constitution, the VP is a hybrid between the Executive and Legislative branches of the federal government."
Trouble is, that's not what Cheney claimed. He claimed he was part of neither.
That's a very interesting reading of Clinton's filing. I went ahead and refreshed my memory (I hadn't read it in years), and it doesn't say at all what you say it does. The effective argument is markedly different -- Clinton's lawyers argued that the Courts have, in the past, carved out certain exemptions for government employees on the grounds that such suits would hinder their ability to do their jobs. Active service members were one example of such.
I'm afraid the "Clinton claimed he was a soldier" thing is just a bit of tripe, and like many such, repeated until it because "factesque". I've long since learned not to believe any 'facts' about Clinton until I can verify them from original sources. Too many lies floating around.
Constitutionally, the office of the Vice President has no executive powers whatsoever. All executive power is vested in the President of the United States. There accordingly seems to be no executive character to the powers of the office of Vice President. On the other hand, the Constitution explicitly grants the Vice President the presidency of the Senate and a casting vote in case of equal division. These are both detailed in Article I and are legislative in character.
The Vice President can exercise the power of the office of President, but only when the President is unable to discharge his duties; and members of the legislative branch, if they are in the line of succession established by law and the succession reaches them, may also exercise such powers. This does not prejudice any claim that the Vice President is not an executive officer, but a legislative one.
The office is mentioned in the section on electing the President, but we see from the original text that it was originally merely that the second-place finisher for the office of President became Vice President. It would have been painfully unwieldy to place the procedure for selecting the relatively unimportant VP elsewhere while leaving the procedure for selecting the President in Article II, so the placement cannot itself be considered evidence as to the character of the office.
The placement of the Vice President in Article II section 4 may serve as evidence that he is an executive officer, but it's thin; the same section covers the removal of judicial officers. It is perfectly possible that the vice-president is similarly a sort of legislative officer removable only by impeachment.
Interestingly, we note that Congress cannot change the compensation of either the sole official invested with the executive power or that of any official invested with judicial power during their term of office. The Federalist Papers indicate this was explicitly to guarantee the executive and judiciary independence from the legislature. The compensation of the Vice President, like that of members of Congress (until passage of the 27th Amendment), was not so insulated. This suggests that it was not considered necessary to make the office independent of the legislature, which would suggest the Vice Presidency is neither executive nor judicial in nature, but legislative.
Then there's the historical. Vice President Adams was an active presence in the Senate (casting 29 votes), but attended only a single Cabinet meeting; no other Vice President attended a Cabinet meeting again until 1918, when the President was in Europe and with the Vice President acting in his stead at the meetings. Coolidge attended Harding's Cabinet meetings, but the practice then lapsed until revived by FDR. The Vice Presidential role on the National Security Council was invented in 1949, and no Vice President received a West Wing office until 1977. So it seems an Executive Branch role for the Vice President is thus a fairly modern development.
The evidence, then, to me suggests that the office of Vice President is both Constitutionally and historically a legislative office, not an executive one. The pseudo-executive role of the Vice President is a modern, constitution-ignoring aberration.
Accordingly, the delegation of executive authority to the office is a violation of the separation of powers, and the claim of executive privileges by members of the office untenable. The Vice President is an officer of the Senate, a member of the legislative branch, and nothing more.
I think you make a strong case, but I have a couple of quibbles/comments.
"All executive power is vested in the President of the United States. There accordingly seems to be no executive character to the powers of the office of Vice President."
But VP gets his "executive character" the same way as everyone else in the executive branch (aside from POTUS); it's delegated to him by POTUS.
Executive power, virtually by definition, means power that is delegated. If we wanted to take the strict position you imply, that would mean the executive branch has only one member. Because no one other than POTUS has an office with "executive character." But that's an absurd proposition, right?
Yes, Article 2 gives POTUS "the executive power" (not "all" executive power, although I'm not sure there's any difference). But I think we take for granted that what happens next is that POTUS delegates portions of that power to others. It seems logical that those 'others' would include someone who the Constitution gave the title of "Vice President." That title, by definition, essentially means 'next in rank' to POTUS. I think the title is an odd choice if the intention was to generally deprive this person of executive functions.
Yes, this immediately sets up a separation-of-powers problem, because VP has a legislative function. But the Constitution pointedly says nothing with regard to constraining POTUS from delegating executive functions to VP.
And with regard to VP's legislative function, it's arguably quite minor. It's arguably more minor than POTUS's own legislative function: exercising veto power. The Framers obviously didn't see that as a separation-of-powers problem. In fact, they seemed happy to intentionally create certain special inter-branch functions like this, as a way to create a check on power.
Here's something else. Obviously a major function of VP is to wait for POTUS to die (arguably this is his most important function, by far). But for this to work well, VP should always be well-informed about executive business. Thus it makes sense for VP to be involved in executive business. (I realize this raises a question about extending this argument to the Speaker. But the odds of the Speaker needing to become POTUS are much smaller than the odds of the VP needing to become POTUS.)
Just some issues which seem to be unaccounted-for in your analysis, which I think is otherwise astute.
It's funny you mention that, since this exact issue (phony claims and quotes regarding Clinton) just came up nearby. See here.
Other than that narrow exception, I think Vice President Cheney's views on this are absurd.
The existence of executive officers and departments is covered in Article II Section 2, which explicitly gives the President powers over them; and the legal tradition is that they serve at the pleasure of the President, making them fully dependent on him. The Vice President is neither named as an executive officer nor is subjected to either Presidential orders or removal by either the Constitution or legal tradition, which would make him quite anomalous as an executive officer. (Admittedly, this is not definitive.)
It is true that there's nothing in the Constitution barring the President from delegating power to a Vice President, but the same extends to members of Congress or the Judiciary. So the lack of prohibition doesn't say much in itself. The best I can say here is that separation of powers doctrine may be extra-constitutional; the President may have the authority to grant executive power to anyone.
The title of the office is suggestive, yes. On the other hand, the fact that the office at the time of naming was to be the second-place finisher in the election alternatively suggests that he was expected to be a rival of the President, not a direct subordinate. (Yes, that's the best I can do.)
The need for the VP to be informed of executive business in order to take over the role is persuasive in modern times, which explains things like the placement of the VP on the National Security Council in 1949, after Truman was caught short. It was less necessary at the time of the framing, given communications times; the Vice President could much more easily be briefed by executive officers upon taking the duties of the office, rather than needing to be fully informed ahead of time.
On the matter of the veto, the Federalist suggests its primary purpose was to give the Executive a means by with it could protect itself from Congressional encroachments on its power, and secondarily as a general hoop to prevent bad laws (Hamilton, IIRC, saying that prevention of the enactment of good laws is a lesser evil than allowing frequent, questionable changes to the laws). The casting vote of the Vice President instead can be used to affirmatively enact laws as well as defeat them, and being the presiding officer of a body does allow extensive influence over the work of the body. Admittedly, actual practice (the expansion of the Senate which makes equal division less likely; the empowerment of the Majority Leader in the Senate to control business) has made the Vice President's legislative role increasingly irrelevant as time has passed. (Though Adams himself commented that the office was insignificant to begin with.)
So, if you ask me, should the Vice President be an Executive office, I'd probably say, yes, in the modern era, especially with the adjustments made in the 12th and 25th Amendments, it should. And that is certainly, I would say, what it now is de facto. But I think John Adams, back in 1790, held a legislative office.
So then, of course, we reach a question — do we treat the office as it was designed by the Framers, or with the office as it has evolved in practice? Which speaks, then, to one's personal views on originalism vs. the evolving Constitution.