Cheney is Not a JAG

Slate's blog on legal issues.
March 21 2008 2:20 AM

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.


Frame Game

Hard Knocks

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

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

After This Merger, One Company Could Control One-Third of the Planet's Beer Sales

Hidden Messages in Corporate Logos

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

Sports Nut

Giving Up on Goodell

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

How Can We Investigate Potential Dangers of Fracking Without Being Alarmist?

My Year as an Abortion Doula       

  News & Politics
Sept. 16 2014 9:22 AM The Most Populist Campaign of 2014
Business Insider
Sept. 16 2014 10:17 AM How Jack Ma Founded Alibaba
Atlas Obscura
Sept. 16 2014 8:00 AM The Wall Street Bombing: Low-Tech Terrorism in Prohibition-era New York
  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 9:13 AM Clive James, Terminally Ill, Has Written an Exquisitely Resigned Farewell Poem
Future Tense
Sept. 16 2014 7:36 AM The Inspiration Drought Why our science fiction needs new dreams.
  Health & Science
Bad Astronomy
Sept. 16 2014 7:30 AM A Galaxy of Tatooines
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.