Binary Executive -- Answering David's Questions

Slate's blog on legal issues.
March 20 2008 10:48 PM

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. 


Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Students Aren’t Going to College Football Games as Much Anymore

And schools are getting worried.

Two Damn Good, Very Different Movies About Soldiers Returning From War

The XX Factor

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.


Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

Why a Sketch of Chelsea Manning Is Stirring Up Controversy

How Worried Should Poland, the Baltic States, and Georgia Be About a Russian Invasion?

Trending News Channel
Sept. 19 2014 1:11 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
Sept. 20 2014 11:13 AM -30-
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 20 2014 3:21 PM “The More You Know (About Black People)” Uses Very Funny PSAs to Condemn Black Stereotypes
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.
Medical Examiner
Sept. 19 2014 12:13 PMThe Most Terrifying Thing About Ebola The disease threatens humanity by preying on humanity.
Sept. 19 2014 6:22 PMBlacks Don’t Have a Corporal Punishment ProblemAmericans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 
Inside Higher Ed
Sept. 19 2014 1:34 PMEmpty Seats, Fewer Donors?College football isn’t attracting the audience it used to.