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.
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