I thought I might run a spot-check as to whether or not Dick Cheney's claim to be immune to legislative oversight on the grounds that his office isn't really part of the executive branch was genuinely as crazy as it appeared to be. Surfed over to the old Volokh Conspiracy and the answer is . . . yes! Orin Kerr agrees that this is absurd.
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And The Winner Is
24 Jun 2007 12:27 pm
Comments (12)
If one were a strict constructionist, one might say that the Vice President is a member of the Legislative Branch, One would note that the first mention of the Vice President in Art. I §3 identifies him as President of the Senate with a vote to decide ties, which makes him a member of the Senate. §6 then says that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."
The plain meaning of this--because §6 does not say "Senator or Representive" but "Member"--is that the President cannot delegate any Executive Branch powers to the Vice President at all, for to do so is to grant him an Office, and that if the Vice President does accept any such powers, he has thereby resigned his Vice Presidency.
At least, that's what a strict constructionist would say, if he were strictly construing the Constitution.
Brad DeLong
William Rehnquist: "a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs."
And one who favours the War Party.
on the grounds that his office isn't really part of the executive branch
Well, the good news is that we should finally be getting the records from Cheney's energy task force that he argued should be kept secret on executive privilege grounds, right?
Michael Rapoport at the Right Coast has what seems like a defense of the Administration's position. Recorded mostly as an example of how wingnutty the Right Coast is.
"At least, that's what a strict constructionist would say, if he were strictly construing the Constitution."
Brad your attempt to look in to the minds and methods of strict construction or textualism isn't very good.
"One would note that the first mention of the Vice President in Art. I §3 identifies him as President of the Senate with a vote to decide ties, which makes him a member of the Senate." Where the Vice President is mentioned first is not relevant, the office of vice-president is defined elsewhere in the same document. And I wouldn't at all be certain that he is a 'member of the Senate' as you attempt to use the phrase. If one is using that kind of indirect look, you could just as easily argue that he was a member of the Executive Branch since his election is dealt with in the article on the Presidency, and "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors, which suggests he is a civil officer at least as much as your formulation suggests "member of the Senate".
I might as well say that a "living Constitutionalist" could argue that the Vice-President has duties beyond the text because the practice since Carter has been to allow it and so the Constitution has grown to accept that. And besides we can't really tell what the words mean anyway, and if we could we aren't bound by them because it is just a bunch of old dead white men.
Not a fair analysis of non-textual Constitutionalism, but just about as good as fair to the theory as you are to textual analysis.
If you have time to kill, skim the comments on Orin Kerr's post. Truly unbelievable. "You are positioning yourself for a job in the Democratic administration..."
I'd just like Harry Reid to propose a vote on changing Senate Rule I so that the Veep can't delegate his ex officio power to preside over the chamber without unanimous consent. I want to see that old bastard stuck in a chair on C-SPAN2 during quorum calls.
Ah. But, Sebastian, it says "president, vice president, and all civil officers." The vice president is thus clearly not a civil officer. And executive powers are wielded by (a) the president, and (b) the civil officers to whom he delegates his executive powers...
:-)
Sebastian, I'm not sure why you're kicking at Brad's analysis; it's basically the same as the fourth paragraph of the Glenn Reynolds post you linked.
"Ah. But, Sebastian, it says "president, vice president, and all civil officers." The vice president is thus clearly not a civil officer."
This is why it helps to have read lots of 18th and 19th century literature when analyzing an 18th century texts. "X,Y and set Z" does not imply that 'X' and 'Y' are not in 'set Z'. In fact the formulation most common was that X and Y would be examples of set Z. "Thieves, murderers and all sorts of scoundrels were found in the pub," should not be interpreted as defining thieves and murderers as "non-scoundrels".
"it's basically the same as the fourth paragraph of the Glenn Reynolds post you linked."
It isn't. Glenn says that any VP power is executive branch and delegated from the President. Brad argues such an arrangement is unconstitutional.
Comments closed July 08, 2007.
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Heads in the Sand
Glenn Reynolds, aka Instapundit, thinks it is absurd too. And in a post that amounts to much more than, 'heh'.
here
Posted by Sebastian Holsclaw | June 24, 2007 12:33 PM