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June 23, 2007

DICK CHENEY AS A LEGISLATIVE OFFICIAL: Ed Morrissey is not impressed with this gem of a legal argument. He's right not to be, and he's right that this is a political and legal embarrassment for the Administration, but it's not because of the constitutional language he quotes.

The argument that the Vice President is a legislative official isn't inherently absurd. The Constitution gives the Vice President no executive powers: The VP's only duties are to preside over the Senate, and to become President if the serving President dies or leaves office. The Vice President really isn't an Executive official, and isn't part of the President's administration the way that other officials are -- for one thing, the VP can't be fired by the President: As an independently elected officeholder, he can be removed only by Congress, via impeachment. (In various separation of powers cases, the Supreme Court has placed a lot of weight on this who-can-fire-you test).

And traditionally VP's haven't done much. That changed when Jimmy Carter gave Fritz Mondale an unusual amount of responsibility by historical standards, and has continued with subsequent Administrations, particularly under Clinton/Gore and Bush/Cheney.

But here's the thing: Whatever executive power a VP exercises is exercised because it's delegated by the President, not because the VP has it already. So to the extent the President delegates actual power (as opposed to just taking recommendations for action) the VP is exercising executive authority delegated by the President, but unlike everyone else who does so he/she isn't subject to removal from office by the President (though the President could always withdraw the delegation, of course). However -- and here's where the claim that Cheney is really a legislative official creates problems for the White House -- it seems pretty clear that the President isn't allowed to delegate executive power to a legislative official, as that would be a separation of powers violation. So to the extent that this is what's going on, the "Cheney is a legislative official" argument is one that opens a big can of worms.

None of this is to say that the President can't, in his own capacity, decide to apply different rules to the VP (who, after all, is an elected official, unlike cabinet secretaries, NSC staffers, and the like) if he chooses. But that's a different issue entirely from the "legislative official" angle. Like a lot of the Bush Administration's arguments, this is one that would make an interesting law school paper topic, or law review article, but that is politically idiotic and legally self-defeating. It's reminiscent, as one of Capt. Ed's commenters notes, of the Clinton Administration's effort to stall Paula Jones' lawsuit by claiming that as Commander-in-Chief the President is a serving member of the military. Clever, in a way. But definitely not smart.

UPDATE: Mike Rapaport says that I'm wrong. Sort of. "Glenn's argument is more far reaching than one might at first think. If he is right, then Presidents cannot delegate power to VPs, but they appear to have done this regularly in the last generation. It would make this modern practice unconstitutional. Of course, this is not an argument against Glenn's reading -- lots of modern practices are unconstitutional. But it would be significant."

Meanwhile, some excellent snark from Orin Kerr: "Today's Washington Post kicks off a series on Senate President Dick Cheney, who apparently has also exercised some influence in recent years within the Executive Branch."

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