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Is Dick Cheney Unconstitutional?

Glenn Reynolds examines the question here.

taney71:
No.
11.12.2007 3:30pm
Owen Hutchins (mail):
I always thought the argument was ludicrous anyway. If the VP isn't part of the executive branch, but the legislative, then certainly the legislative branch gets to make the rules governing it.
11.12.2007 3:38pm
Cornellian (mail):
GR seems to be making the point that if Dick Cheney is correct that the Vice-Presidency is really a legislative officer position rather than an executive officer position, then it would be unconstitutional for the President to delegate executive functions to him. Not exactly a shocking argument to make.
11.12.2007 3:38pm
uh clem (mail):
Cheney wants to be part of the Executive branch when it's in his interest to be so, and not part of it when it's not in his interests. Unfortunately, there's nobody with the legal status and the cojones to tell him firmly that he can't have it both ways.
11.12.2007 3:53pm
Ugh (mail):
Wait, Glenn Reynolds is capable of writing in paragraph form? Who knew.
11.12.2007 3:59pm
Hoosier:
Isn't there something that a Thomist could do about this conundrum? Perhaps there is a distinction between "The Executive officer acting in accordance with the dictates of Executive function" AND "The Executive officer acting in accordance with the dictates of Legislative function."

Then a Thomist could come up with six or seven sub-categories of the latter; fit Cheney into one of them; and conclude that he is not behaving against the Dictates of Nature."

That's why I've always admired the Thomists: They take the world as it is, and just try to find categories for it all.
11.12.2007 4:07pm
jim:

Perhaps there is a distinction between "The Executive officer acting in accordance with the dictates of Executive function" AND "The Executive officer acting in accordance with the dictates of Legislative function."



Well, isn't that what started it all. Cheney was clearly acting to fulfill executive functions within the executive branch when handling certain types of data. He was acting as part of the executive, but claimed legislative immunity.

Had he been filling legislative functions with that classified material it might have pissed people off less.
11.12.2007 4:16pm
davod (mail):
This is what happens when you get lawyers involved.
11.12.2007 4:20pm
Robert West (mail) (www):
I'm much more interested in the question of why it was Constitutional for the electors of Texas to vote for both Bush and Cheney, given that both of them resided in Texas.
11.12.2007 4:29pm
Steve:
What is Reynolds alluding to in regards to Harry Truman and the A-bomb?
11.12.2007 4:39pm
David M. Nieporent (www):
I'm much more interested in the question of why it was Constitutional for the electors of Texas to vote for both Bush and Cheney, given that both of them resided in Texas.
Because Cheney didn't? He reestablished his residence in Wyoming.

There was a post about it right here on Volokh.
11.12.2007 4:42pm
Paul Allen:
I think its pretty clear he is a legislative officer. The irony of that is that the traditions of the Senate have minimized his role. But this fact should be clear: he can cast the deciding vote on legislation. That he does so only during 50:50 splits is an issue of decorum; the idea that presiding officer should appear impartial so much as is possible.

That said, I do not believe there is any meaningful constitutional question as regards to his 'executive like behavior'. He may appear to direct executive functions at times (such as during 9/11) but he has no independent (personal) power. Rather, true members of the executive (military officers) may be following his instructions (advice) but do so under their own power &discretion.

e.g., consider if the generals had refused his instructions to shoot down any planes approaching the capitol. Would they be subject to sanction after the fact? No. They cannot be.

This sort of argument can be applied over and over. At each instance there will be an executive officer duly charged who does the actual executing and who is independently responsible for the consequences.
11.12.2007 4:48pm
MDJD2B (mail):
The Constitution, then, makes the Vice-President a chimerical animal with legislative and executive characteristics.

On th eone hand, he presides over the Senate.

On the other hand, he is acting president if the President is incapacitated. He holds the nuclear codes when the president goes under anesthesia for a colonoscopy.

Perhaps the Supreme Court and constitutional scholars, not to mention the Bush administration, have to rethink the separation of powers doctrine, at least as it pertains to this ofice.

My own preference would be for the VEEP to be considered executive. After all, he must be prepared to assume presidential powers at anyu time, which optimally entails he involvement in the administration. His presidency of the Senate is usually pro-forma. Usually a senator presides in fact, with the VEEP coming to the Hill only to break a tie. Thi scould be regard3ed as giving the Executive branch the power to break a deadlock in the Senate by casting tie-breaking votes.

What are your thoughts, Prof. Volokh?
11.12.2007 4:52pm
ChrisIowa (mail):
Dualities

Photon - wave and particle.
Vice President - executive and legislative.

Deal with it.
11.12.2007 5:06pm
Dilan Esper (mail) (www):
What is Reynolds alluding to in regards to Harry Truman and the A-bomb?

FDR kept his veeps so far out of the loop that he never told Truman about the A-bomb even when he knew he was sick. So Truman was forced to make a momentous decision-- one that was very controversial and, even if justified, took thousands of lives-- in a very short timeframe between April and July 1945.

SEPARATELY:

On the merits of the article, I thought Prof. Reynolds did a nice job. Whether or not Cheney is really unconstitutional, Reynolds' policy arguments make a lot of sense.
11.12.2007 5:31pm
Warmongering Lunatic:
If there is a vacancy in the Vice-Presidency, or the Vice President is unable to discharge the duties and powers of the office of President, then in the case of a Presidential inability to exercise the functions of the office (say, going under for a colonoscopy) the Speaker of the House is acting President. Similarly, in case of a triple inability of the President, Vice President, and Speaker of the House, the President Pro Tempore of the Senate is acting President.

So, insofar as the office of Vice President has an executive character because he can temporarily assume Presidential duties or succeed to the Presidency, so too have the offices of Speaker of the House and President Pro Tempore of the Senate. Shall we declare their offices to also have a dual Executive-Legislative character, along with any other legislative official the Congress sees fit to add by law to the line of succession?
11.12.2007 5:44pm
markm (mail):
Shall we declare their offices to also have a dual Executive-Legislative character, along with any other legislative official the Congress sees fit to add by law to the line of succession?

No, because they are not exercising executive power in the course of a normal day, nor simultaneously exercising legislative and executive power. If something disabled both the President and the VP, any temporary replacement is going to be far too busy to handle another job as well.
11.12.2007 6:01pm
Waldensian (mail):

So Truman was forced to make a momentous decision-- one that was very controversial and, even if justified, took thousands of lives-- in a very short timeframe between April and July 1945.

Was it controversial at the time? My grandfather sure didn't think so.

I think I could get comfortable with, say, a momentous new weapon for use in Iraq in 3-4 months.
11.12.2007 6:25pm
David M. Nieporent (www):
So, insofar as the office of Vice President has an executive character because he can temporarily assume Presidential duties or succeed to the Presidency, so too have the offices of Speaker of the House and President Pro Tempore of the Senate.
Putting aside the strong argument that that's unconstitutional, they still can't do what you say. As anybody who watched The West Wing knows, they have to step down from Congress in order to assume the presidency, even temporarily.
11.12.2007 6:29pm
Warmongering Lunatic:
No, because they are not exercising executive power in the course of a normal day,

Neither is a Vice President, unless expressly delegated such power by the President. The question brought up by Mr. Reynolds is whether it is constitutional for the President to make such a delegation in the first place. The claim that the Vice President is de jure member of the Executive and thus can be constitutionally delegated executive power cannot rest on the grounds that he exercises de facto delegated Executive power by the President in possible violation of the Constitution.

Putting aside the strong argument that that's unconstitutional

What strong argument? The President Pro Tempore and the Speaker of the House were placed in the line of succession under the very first Presidential Succession Act (1792). Certainly Madison didn't like it, but as he was a partisan of the Jefferson camp at a time when Jefferson was Secretary of State, his opinion needs to be taken with a grain of salt. Washington, who was just as much at the Convention, clearly did not believe it was unconstitutional.

As anybody who watched The West Wing knows, they have to step down from Congress in order to assume the presidency, even temporarily.

Hmm, a point, though it is only implemented legislatively (in the 1947 act). I can't find the 1792 act to see if it had a similar requirement . . .
11.12.2007 7:23pm
Bored Lawyer:
The analogy to Bowsher v. Synar is a false one. In that case, the President could not fire the Comptroller in any meaningful way -- neither remove him from office nor remove his powers.

In contrast the President can "fire" the Vice-President by revoking any executive powers delegated to him and returning the office of V.P. to its Constitutional minimum (President of the Senate and President-in-waiting). IOW any executive power exercised by the VP is entirely at the whim and pleasure of the President and under his control and direction. Hard to see how that is a Constitutional violation.
11.12.2007 8:03pm
Thoughtful (mail):
Waldenheim: So Truman was forced to make a momentous decision-- one that was very controversial and, even if justified, took thousands of lives-- in a very short timeframe between April and July 1945.

Was it controversial at the time? My grandfather sure didn't think so.
----

Your grandfather may have been out of the loop. The following people (you may have heard of some of them) strongly opposed using the A bomb on Hiroshima and Nagasaki at the time: General Dwight D. Eisenhower, General Douglas MacArthur (the highest-ranking officer in the Pacific Theater), Fleet Admiral William D. Leahy (the Chief of Staff to the President), General Carl Spaatz (commander of the U.S. Strategic Air Forces in the Pacific), Brigadier General Carter Clarke (the military intelligence officer who prepared intercepted Japanese cables for U.S. officials), Admiral Ernest King, U.S. Chief of Naval Operations, Undersecretary of the Navy Ralph A. Bard, and Fleet Admiral Chester W. Nimitz, Commander in Chief of the Pacific Fleet"

"The Japanese had, in fact, already sued for peace. The atomic bomb played no decisive part, from a purely military point of view, in the defeat of Japan."
Fleet Admiral Chester W. Nimitz, Commander in Chief of the U.S. Pacific Fleet.

"[Dropping atomic weapons] at Hiroshima and Nagasaki was of no material assistance in our war against Japan. The Japanese were already defeated and ready to surrender."
Admiral William D. Leahy, Truman's Chief of Staff.

Granted, the killing of over 100,000 Japanese civilians was popular with the American people, who remembered Pearl Harbor (about 3300 killed, virtually all military personnel).
11.12.2007 8:09pm
Eli Rabett (www):
If Cheney is in the legislative branch, that branch can lift any immunity he has as a consequence of office, and his records belong to them.
11.12.2007 9:29pm
Evelyn M. Blaine (mail):
Note that, as Reynolds points out in a footnote, there are two separate problems with the Vice President's exercise of delegated executive power: not only is he not removable by the President, he is also not subject to Senate confirmation, which Art. II, § 2, requires of all (superior) officers.
11.12.2007 10:01pm
David M. Nieporent (www):
What strong argument? The President Pro Tempore and the Speaker of the House were placed in the line of succession under the very first Presidential Succession Act (1792). Certainly Madison didn't like it, but as he was a partisan of the Jefferson camp at a time when Jefferson was Secretary of State, his opinion needs to be taken with a grain of salt. Washington, who was just as much at the Convention, clearly did not believe it was unconstitutional.
Well, Washington wasn't much of a constitutional theorist, was he? That's not to say he was wrong, but normally one wouldn't counterbalance the constitutional views of Madison with Washington.

The strong argument -- put forth most recently by Akhil Amar -- is that the PPT/SotH are not officers of the U.S., and thus cannot be in the succession line, constitutionally.
11.12.2007 11:14pm
johnw:
Thoughtful,

Truman likely had another reasons for A-bombing Japan, deemed very compelling at the time - something for the benefit of the Russians, who had greatly increased their interest in the Paciifc theater.

Whether all those others you list both thought and ventured their opinion to Truman between April and August 1945 is another question. There are many that conveniently develop their opinions in a Monday morning quarterback style, although I can't say for certain who on your list that might apply to. Can you provide a couple references?

By the way, a great book touching on the dynamic between Roosevelt and Truman is "The Conquerors" by Beschloss.
11.12.2007 11:56pm
johnw:
I mean July 1945
11.12.2007 11:57pm
Kazinski:
Declaring a person unconstitutional is tantamount to a bill of attainder, which is unconstitutional.
11.13.2007 2:38am
Floridan:
Reynolds "When Presidents resign or are impeached, it is often over matters of policy."

We've had two Presidents impeached, Andrew Johnson and Bill Clinton, and one resignation,Richard Nixon.

One might argue that Johnson was impeached over a matter of policy (ignoring a law passed by Congress based on the President's assertion that the law was unconsitutional), but policy was not a major factor in the Clinton impeachment.

The most favorable interpretation of Nixon's resignation is that it was all political -- and that's favorable to the point of being fanciful.

One out of three makes for a pretty good batting average, but not for a good argument in this case.
11.13.2007 9:23am
Duffy Pratt (mail):
Remember, as originally conceived, the VP would have been a member of the opposition party to the President. Having him cast the deciding vote would then have meant that the President typically would not get his way in the event of a tie. And since the VP was part of the opposition, my guess is that there was little question of him being inside the loop, much less exercising executive powers. Also, in the case of a President who was impeached and convicted, the VP taking his place would have been part of the opposition. Thus, impeachment had more teeth then than now.

The amendments that changed the selection of the VP, did not put much thought into these aspects of the VP's constitutional role. What we have now is a hodgepodge. Deal with it.
11.13.2007 2:08pm