Convictions: Slate's blog on legal issues

Wall Street, meet the unitary executive

On Monday, Treasury Secretary Hank Paulson unveiled the Bush administration's "Blueprint for Stronger Regulatory Structure," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets.  No surprise, the plan calls for some fairly sweeping changes in the way the SEC, Federal Reserve, and other agencies regulate America's financial markets.  According to the Post:

. . . Treasury Secretary Henry M. Paulson Jr. said he also plans to ask Congress this year to set up a new agency to oversee mortgage lending and take action to enhance his department's role as the chief regulator of financial markets.

The Treasury's initiatives seek to sweep away the current patchwork of regulation over the coming decade in favor of three more powerful agencies to oversee banking, market stability, and consumer and investor protection. The plan's authors have argued that such changes are needed because government oversight has not kept up with the pace of financial innovation.

Paulson acknowledged that the recommendations would not prevent future crises but said that they would make government more nimble in addressing them. "We should and can have a structure that is designed for the world we live in," he said in a speech at the Treasury.

Uh huh.  So, let me make sure I have this right.  The administration embraced deregulation and free market theory as if it were handed down from Mt. Sinai.  It then sat idly by while the sub-prime mortgage market imploded, and watched as that market's failure trickled up into other sectors of the economy.  All the while, this admistration spent taxpayer money like a drunken sailor (to use Sen. John McCain's memorable phrase), running up the federal debt and mortgaging our grandchildren's future.  And the administration pursued wars in Iraq and Afghanistan likely to cost the country $3 trillion.  And now, they want the people trust the Bush administraiton by giving it more power over the American economy?

Wall Street, meet the unitary executive.  Another day, another crisis, another power grab.

Constitutional, Yes, but a Really Bad Idea

Two thoughts in response to Marty's provocative questions:

First, I think having a relatively independent DNI probably is manageable constitutionally. We already have, after all, an FBI director who is appointed for a term of years that does not coincide with that of the appointing president. While the DNI is higher up the food chain, I suspect the office could be structured so as to look pretty similar. The more formal one makes the DNI's independence—in other words, the harder his removal is for the president to effectuate—the more difficult the question becomes. But at a minimum, it should be possible to create an office with a term of years and a strong norm against removal for reasons other than misconduct.

All of which seems to me a perfectly dreadful idea, and I'm frankly a little bewildered by its attraction for the people most offended by the intelligence policies of the current administration. After all, having a long-term occupant of that office would ensure continuity across administrations in an area in which there is simply no political consensus as to the proper posture of the executive branch. If you imagine it existing now, it would allow Bush to appoint Obama's DNI. The reason the FBI director's term of years is defensible is that Americans basically agree on the apolitical nature of the investigative function and want to insulate it from the shifting political winds. A similar consensus,  I suppose, exists for much intelligence collection and analysis. But no such consensus exists for a lot of intelligence policy over which the DNI has charge. Would we really want Bush to appoint Obama's point person on warrantless wiretapping, renditions, and interrogation? 

An Obama administration would presumably handle a lot of things within the DNI's purview differently from a Bush administration. And the Republican who runs against Obama four years from now, should Obama win in the fall, would presumably criticize and promise to change Obama's intelligence policies. If we make the DNI's position apolitical, we greatly reduce the capacity for political debate over and change in intelligence policy.

Cheney is Not a JAG

I'm not inclined to defend Cheney's freelancing in Heller, but I do think David's being a little too facile when he says in this post that "the next time a unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember-they're only following Cheney's lead."

The argument for the executive's tolerating a certain measure of independent action from each of the groups David names is different, and in all of these cases, the argument is totally different from the unique case of the office of the Vice President. We expect a measure of independence from the JAGs in order to protect their ability to represent clients in the context of a justice system that exists within an executive department. We expect government scientists to be insulated from politics because scientific truths are not supposed to change with party control over the executive branch. Civil Rights Division lawyers in the Justice Department, by contrast, are not and should not be independent of their agency's positions; as lawyers representing the United States, they are arms of it. Each of these cases represents a different weighing of the relative benefits of unity versus diversity in viewpoint, the executive's ability to formulate and promulgate its policies versus its interest in preserving such goods as the right to trial or free scientific inquiry. In none of these cases is independent action by lower executive officials built into the constitutional design.

The vice president, by contrast, has a measure of independence for a unique reason: Because the Constitution makes him at once president of the Senate and first in line to the presidency-both a creature of the administration and a sometimes-meaningful part of the legislature. In Cheney's case, the vice president is also perhaps the president's closest aide and the strongest voice within his administration for a unitarian conception of the executive. These facts make his involvement in Heller hypocritical, as David suggests, but they do not alter the reality that he-unlike almost all other executive branch officials-legitimately wears more than one hat. His ability to switch hats is a function of the same constitutional design as the unitary executive he belligerently champions.

Binary Executive -- Answering David's Questions

David continued the conversation on the compatibility of Cheney's assertion that the Vice President is not part of the Executive Branch and his support for the theory of the Unitary Executive by posing a couple of questions.  Given that I've done my best to show the theoretical consistency of those positions, I'll take a crack at responding.

David, you first suggest that if the Vice President is part of the legislative branch, then his participation in executive branch affairs would seem to run afoul of the Supreme Court's stance against congressional encroachment on executive power.  I think you overlook a pretty important distinction:

In the Supreme Court's cases (and in the D.C. Circuit decision you mentioned, FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993)), the courts stood athwart congressional attempts to "aggrandize" power not afforded Congress by the Constitution.  In NRA Political Victory Fund, the D.C. Circuit went so far as to state (without offering any on-point citation) that "the mere presence of agents of Congress on an entity with executive powers offends the Constitution."

Even assuming that the D.C. Circuit's statement can be taken as being co-extensive with the Supreme Court's precedents (I think the D.C. Circuit's statement is a bit more aggressive), Vice Presidential participation at the invitation of the President seems to me not to raise the red flags identified in the case law.  A Vice President's ad hoc participation in formulation of Administration policy occurs only where the President allows it.  Thus, the President's invitation to the Vice President to participate in Administration policymaking involves no threat of congressional "encroachment" on the executive -- the executive remains in full control of the arrangement! 

Similarly, where the D.C. Circuit warned (with respect to ex officio congressional members on the FEC) that "their mere presence as agents of Congress conveys a tacit message to the other commissioners," Vice Presidential involvement in Administration policymaking deliberations raise no such concerns.  In such cases, the Vice President isn't acting "as [an] agent[] of Congress" -- he's acting as an agent of the President!

Your second question asked how the Vice President, if a member of the Legislative Branch, could refuse to disclose information to Congress (your case in point: the Cheney Energy Task Force).  My answer here is similar to my answer to your first question: for purposes of Presidential privilege and confidentiality, the important question is not whether the Vice President enjoys the privilege, but whether the President enjoys the privilege, and whether the vice-presidential communications were undertaken for the purpose of collecting and conveying to the President information for the President's decision-making process.  The fact that a member of the legislative branch is a party to confidential policy meetings convened for the purpose of providing advice to the President does not -- so far as I know -- defeat the privilege.  (On that point, though, I'm happy to be corrected.)

Finally, a clarification:  You and I disagree slightly on the Vice President's constitutional pedigree:  You say that his office "is truly a mix of the branches," but my hypothesis has been that his office is just part of the Legislative Branch.  Maybe that's why, contrary to your point, I'm a "Unitarian" who feels comfortable with the Vice President's "complex" nature. 

Yet More on Cheney and Unitary Executive

The Binary Executive, cont'd

[Adam White]

Dawn, you seemed to misunderstand my argument when you ascribed to me the position that "we can have constitutional entities not squarely in one of the three constitutional boxes."  In the first part of my argument, I tried to make clear that I -- along with the quoted members of the Founding generation -- saw the Vice President to be a legislative official rather than an executive official.

I referred to the Vice President as a "sui generis" office not to suggest that his office is not part of one of the three constitutional branches of federal government but, rather, to distinguish my view from Adam's position that the Vice President is the "Head of the Legislative."  I wouldn't say that he's the "Head" of that branch, but I would say that he is "sui generis" among legislative officials:  he is nationally-elected, he votes only in certain circumstances, he is first in the line of succession.

By contrast, the Constitution affords him no specified role in the Executive Branch.  He has no Executive Power (it's committed to the President); he's not the head of a department.  Rather, his only constitutional relationship to the Executive Branch (other than his nominal title) is a prospective one:  In certain circumstances, he succeeds to the presidency.

Thus, I think you're hasty to assert that it is "ludicrous" to suggest that the Vice President is Legislative, not Executive, official.  John Adams and Oliver Ellsworth -- hardly ignorant of the Constitution -- come out much closer to Cheney's position than to yours. 

No doubt, over time the Vice President has come to be known primarily for his role in succession, and for the roles afforded particular Vice Presidents by particular Presidents.  Thus, it should come as no surprise that most people would reflexively assert that the Vice President is just an Executive Branch official.  I'd recommend, however, that Founding-era discussions strongly suggest that today's conventional wisdom is a little more "conventional" than it is "wise."

Re: The Binary Executive?

While I don't have thoughts on the substantive merits of Heller [FN1], David's comment on the Cheney brief's implications for the unitary executive raises an issue that's interested me greatly. Simply put, I don't think that the vice president's support of the theory of the unitary executive is at odds with his filing a separate brief in Heller.

1. Cheney May Well Be Right: The Vice President Isn't Part of the Executive Branch: As a preliminary matter, I must say that I tend to agree with the office of the vice president's position that the vice president isn't part of the executive branch. In fact, I think you would have been greeted with outright laughter from Vice Presidents Jefferson, Burr, or Calhoun if you had suggested anything to the contrary. Elected by the people-not appointed by the president-their office exists separate from the presidency. The vice president is not merely another executive branch officer subject to presidential dismissal.

Article II of the Constitution vests in the president "the executive power." It does not identify, however, the affirmative powers of the vice president-his only specifically identified power, other than his role in succession, is Article I's designation of the vice president as the president of the Senate. True, Article II does mention the possibility of vice presidential impeachment, and that may weigh against my point, but discussion of one branch in "another branch's Article" isn't unprecedented: The Senate's advice-and-consent power is found in Article II.

Looking back at the earliest Senate: If I recall correctly, Sen. Maclay's journal (which, I'll admit, I haven't read since law school) depicted John Adams as primarily a legislative official and only marginally part of the executive branch. In fact, the very opening sequences of Maclay's journal offer us Adams's own interpretation of the nature of his office, as he fretted over his role in the Senate during President Washington's imminent visit:

Gentlemen, I feel great difficulty how to act. I am possessed of two separate powers: one in esse and the other in posse. I am Vice-President. In this I am nothing, but I may be everything. But I am president also of the Senate. When the President comes into the Senate, what shall I be?

Sen. Ellsworth, himself no stranger to the framing of the Constitution, responds:

Mr. President, I have looked over the Constitution (pause), and I find, sir, it is evident and clear, sir, that wherever the Senate are to be, there, sir, you must be at the head of it. But further, sir (here he looked aghast, as if some tremendous gulf had yawned before him), I shall not pretend to say.

In short, from this account Adams, Ellsworth, and the others appear to see the vice president's express duties to be almost wholly legislative, with his relationship to the president much less clearly defined.

Adams' view of the vice president as standing apart from the executive branch is all the more manifest in his correspondence, some of which is quoted on the Senate's Web site:

For his own part, Adams professed a narrow interpretation of the vice president's role in the new government. Shortly after taking office, he wrote to his friend and supporter Benjamin Lincoln, "The Constitution has instituted two great offices ... and the nation at large has created two officers: one who is the first of the two ... is placed at the Head of the Executive, the other at the Head of the Legislative." The following year, he informed another correspondent that the office of vice president "is totally detached from the executive authority and confined to the legislative."

Now, I would hesitate before going so far as to say that the vice president is the "Head of the Legislative" branch. I've not researched this issue in terribly great depth and happily defer to the experts. That said, it seems to me plausible that the office of the vice president, created largely to rectify the problem of strategic voting in the presidential election, is simply sui generis.

 2. Cheney's Solo Brief Doesn't Contradict His Support of the Unitary Executive: Cheney's decision to act independently of the president in Heller only contradicts the theory of the unitary executive if you presume that the vice president is part of the executive branch.

More broadly, I don't see inconsistency in Cheney's support of the unitary executive while he is not, himself, part of the executive branch. While a member of the legislative branch (as the congressman from Wyoming), Cheney advocated the president's inherent power on the question of foreign affairs (as demonstrated in the Iran-Contra report's "minority views"). Arguing the executive branch's authority at the expense of his own branch's authority made clear enough his commitment to presidential authority. Indeed, that situation was much more paradoxical than is his support of the unitary executive while serving as a vice president with unparalleled access to the President.

3. So Why Did He Sign His Brief "President of the Senate"? If Cheney agreed with all of the above discussion, then he'd have felt comfortable submitting his own amicus brief under his proper title, "The Vice President." Why, then, did he sign it not with that title but, rather, with the title of "President of the Senate"? There, he loses me. Perhaps he did it merely for rhetorical emphasis. It seems to me, however, that he should have just signed it "Vice President."

Again, John Adams considered this issue. Maclay's journal discusses the debate surrounding the way in which Adams was to sign a bill for transmittal to the president. After initially agreeing to sign it as "President of the Senate," he changed his mind:

"I have, since the other day, when the matter of my signing was talked of in the Senate, examined the Constitution. I am placed here by the people. To part with the style given me is a dereliction of my right. It is being false to my trust. Vice-President is my title, and it is a point I will insist upon." He then addressed the Senate again, and with great positiveness told them that he would sign it as Vice President of the United States and President of the Senate.

Adams' approach strikes me as the right one: His office was that of the vice presidency; thus, his title was, at all times, vice president. True, he served as president of the Senate, but those constitute two "offices" no more than the president separately and simultaneously serves as both "president" and "commander in chief."

Cheney should have done likewise: He should have signed his brief as "vice president" or, at the very least, "vice president of the United States and President of the Senate." To do so is not at all inconsistent with the theory of the unitary executive; rather, it reflects the nature of the vice presidency as not being subsumed within the executive branch. 

[FN1] Comment on Heller would be particularly inappropriate in light of the fact that one of my bosses authored a brief in that case. On that point, now's as good a time as any to stress that nothing I have said or will say on this blog represents the views of my employer or my employer's clients. Indeed, only an utter moron would think that my firm would send a midlevel associate to be its spokesman on a blog. My thoughts are mine alone, for better or for worse.

Mukasey's Comments

Regarding Dahlia's post, Mukasey's comments were unwise but not hard to understand. Death is the supreme punishment for an ordinary criminal, but it is also the supreme test for people who seek to live up to their ideals.  We would not remember Nathan Hale today if he had received a prison term ("I regret that I have but 30 years to give to my country"). The confusion here is that Americans see the 9/11 plotters as ordinary criminals, while the plotters see themselves as making a sacrifice for the sake of a higher ideallike soldiers who undertake a suicide mission. The death penalty (for those not opposed to it) vindicates our beliefs and theirs. Life imprisonment would diminish both. No punishment would allow us both to vindicate our ideals and to prevent them from vindicating theirs, possibly enhancing their stature among like-minded believers. No such conflict exists for ordinary crimes. Hence Mukasey's puzzlement.

And speaking of less-than-unitary Executives ...

What do you all make of Attorney General Michael Mukasey’s reported comments in London last week that the 9/11 plotters the Pentagon will be trying at Guantanamo Bay should not be executed even if they’re convicted? These are the same terrorists who’ve been charged with capital crimes. Our friend Doug Berman is not amused. He finds Mukasey’s rhetoric particularly offensive in that the AG compared the terrorists to masochists and the American prosecutors to sadists.

“Because many of them want to be martyrs, and it's kind of like the conversation … between the sadist and the masochist. ...  The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it.”

I am hesitant to read too, too much into Mukasey’s comments as I suspect he was just trying to be clever and perhaps this is what passes for a charm offensive when Bush administration officials visit Europe these days. I know Doug disagrees with me. And it certainly is less than smart for the AG to undermine the capital prosecution at Gitmo in the eyes of the world. Thoughts?

shooting the messengers?

David I had a little fun with the exploding unitary executive last week as did Marty and I’d give a donut to anyone who can offer insight on what end is served by these attacks from within the administration and without. What point in making Solicitor General Paul Clement look like a wild man on the eve of oral argument? Why was Bob Novak at pains to explain that Alan Gura – who represents the gun owners tomorrow – does not have the confidence of gun owners or any experience at the high court? I get that it has something to do with managing expectations. But  this tactic of blaming the lawyers in advance of the argument can’t look good to the justices can it?  

Binary Executive Redux

[David Barron] 

By noting the Vice President's surprising comfort level with his own independence - as I did in an earlier post on the Binary Executive - I did not mean to argue Cheney was acting illegally by striking out on his own.  My point was to highlight the hypocrisy of it all.  If even Mr. Unitary Executive is comfortable with asserting his independent authority as a (sometime) member of the executive branch, then shouldn't we question whether a unitary command structure is as imperative as unitarians often claim?

Obviously, the Veep is a complex office.  It is truly a mix of the branches.  But unitarian doctrine can't handle that kind of complexity. 

Consider the puzzles that it raises:

1.  How can the Veep play a direct role in making executive war policy?  After all, the D.C. Circuit has held that legislative agents can't sit as non-voting ex office members of the Federal Elections Commission.  Even that minimal participation, that court has said in a paradigm of Unitarian reasoning, smacks of inappropriate legislative aggrandizement.  How much worse, then, for the Senate's President to be telling the CIA what to do!?

2.  Why should the Veep get the benefit of the President's constitutional power to make recommendations to Congress, as Cheney argued he should in fine Unitarian fashion in objecting to requests to disclose  information concerning his energy task force.   After all, as a member of Congress, isn't he supposed to receive recommendations rather than make them?

Suffice it to say, then, that, as Adam says, the Veep is a hybrid and a hybrid that the Constitution tolerates.  But isn't that instructive of a more general point about the Constitution?

If our constitutional system can tolerate this kind of complex blending at the very highest levels of the executive branch, then why should we think it seeks to stamp out similar configurations lower down the chain of command. So, the next time a Unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember -- they're only following Cheney's lead.  

The Binary Executive?

We already knew that Vice President Cheney was comfortable arguing that his office was not part of the ... well ... the executive branch. In arguing that an executive order covering the executive branch did not apply to the vice president, he seemed to be making an argument that was of a piece with the current chief executive’s penchant for secrecy. But now the veep is at it again, and this time he’s taking his view of independence a bit further. In an amicus brief to the Supreme Court, Vice President Cheney—as president of the Senate—argues for a position in the D.C. gun control case that is at odds with the position taken by the solicitor general on behalf  of ... well ... the executive branch. (Suffice it to say, the vice president is somewhat less keen on the constitutionality of gun control measures than is the person representing the United States on behalf of the president). How is it that the man who constantly portrays himself as the keeper of the flame for the unitary executive seems so comfortable with there being a binary one?