Binary Executive—Take II

Slate's blog on legal issues.
March 20 2008 9:43 AM

Binary Executive—Take II

[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 nonvoting 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.  


Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

Republicans Like Scott Walker Are Building Campaigns Around Problems That Don’t Exist

Why Greenland’s “Dark Snow” Should Worry You

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

The Best Way to Organize Your Fridge

The World

Iran and the U.S. Are Allies

They just aren’t ready to admit it yet.

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

Chief Justice John Roberts Says $1,000 Can’t Buy Influence in Congress. Looks Like He’s Wrong.

How Steven Moffat Made the Best Doctor Who Episode in Years

  News & Politics
The World
Sept. 16 2014 11:56 AM Iran and the U.S. Are Allies Against ISIS but Aren’t Ready to Admit It Yet
Business Insider
Sept. 16 2014 1:23 PM Germany Has Asked Google to Reveal Its Search Algorithm, but That's Not Going to Happen
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
Brow Beat
Sept. 16 2014 1:27 PM The Veronica Mars Spinoff Is Just Amusing Enough to Keep Me Watching
Future Tense
Sept. 16 2014 1:41 PM You Can Play the Original Doom on a Hacked Canon Printer
  Health & Science
Sept. 16 2014 1:39 PM The Case of the Missing Cerebellum How did a Chinese woman live 24 years missing part of her brain?
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.