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?

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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.  

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