Balkinization  

Tuesday, June 26, 2007

Addington Speaks!

Marty Lederman

[UPDATED to address the "substance" of the Addington letter]

More than one year ago, the Director of the Archives Information Security Oversight Office wrote to David Addington asking for an explanation of why the Office of the Vice President was not complying with Executive Order 12958, which requires all executive branch "entities" to issue reports to the ISOO so that the latter can oversee such entities’ handling of classified documents.

No response from Addington.

The ISOO Director wrote to Addington again in August.

Once again, the OVP did not bother to respond.

At which point the ISOO Director wrote to DOJ on January 9th, asking the AG and OLC to resolve the legal question that Addington would not even deem worthy of addressing.

More than half-a-year later, no word from DOJ, nor even a responsive memo from the OVP, even though the legal question is exceedingly simple.

Congressman Waxman wrote to the Vice President last week, seeking an explanation.

The only response was painful obfuscation from the White House Deputy Press Secretary.

Finally, just yesterday, Senator Kerry wrote to Addington, concerned by recent reports that the Vice President refused to comply with the E.O. on the theory that he is both a legislative and an executive officer -- or perhaps that the VP is not quite in either branch!

And whadda ya know?: Within 24 hours, Addington has responded!

In his two-paragraph letter, Addington writes that the E.O. "makes clear" that the Vice President and President are to be treated alike, and "distinguishes the two of them from 'agencies.'" Since only "agencies" (defined broadly to include all "entities" within the executive branch) have a reporting obligation, Addington suggests that the President and the VP -- non-agencies -- do not.

As the Washington Post (which inexplicably does not publish or link to the actual Addington letter -- when are they going to learn?) gingerly puts the point, "Addington did not cite specific language in the executive order supporting this view, and a Cheney spokeswoman could not point to such language last night."

In any event, it does not appear to be an especially strong argument. [If you're more interested in process than in the details of the legal arguments, you can skip the next half-dozen or so paragraphs.] For one thing, although in several specific respects the E.O. does reflect an intent to treat the Vice President and the President alike, neither is mentioned in section 5.2(b)(4), which gives the Director of ISOO the authority to conduct reviews of each agency's program under the Order, and to require reports from such agencies. Nor is either officer singled out for exemption in the ISOO regulation itself that was promulgated to implement the Order.

More to the point, the question at hand is not whether the E.O. imposes obligations on the President and Vice President themsleves, but instead whether it covers the Office of the Vice President, as well as entities within the Executive Office of the President. (The Director's letter to DOJ asks about the coverage of the OVP staff, not about the VP himself.) Because those offices are "entities" within the Executive branch, they are "agencies" covered by the E.O. (see section 6.1(b)) under a plain reading of the E.O.

Perhaps Addington means to suggest that because at least one section of the E.O. (see 1.3(a) and (c)) refers both to the President and the VP and also, separately, to "agency heads," the President and VP must not be "agency heads" (lest the separate references be redundant) -- which must mean that the offices they run are not "agencies," notwithstanding that they are "entities within the Executive branch. (I'm trying here to put the best possible light on the argument.)

I don't think this would be an especially strong argument, had Addington made it, both because the OVP is an entity within the Executive branch and, more importantly, because the E.O. does specifically exempt the President and Vice President, and, separately, their staffs, from one particular (declassification) requirement (section 3.5(b)) -- something that would have been unnecessary had the President intended such staffs not to be covered in the first instance -- and in so doing specifically distinguishes those officers and staffs from "other entities within the Executive Office of the President."

Moreover, such an interpretation would be belied by the fact that until 2003, the OVP did comply with the ISOO directive, and, even more so, by the fact that entities within the Executive Office of the President, such as the National Security Council, are reported to continue to comply to this very day.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.))

Notably, Addington declines to rely on the even more preposterous argument they had previously been floating that OVP is not an executive branch "entity" under the E.O. because the VP has some legislative functions, too. That quite literally did not pass the laugh test. The Post: "That argument has drawn ridicule in recent days from Democrats and on late-night television." Actually, Addington preserves this "alternative reasoning" in the second paragraph of his letter, but contends that no one needs to deal with it just now -- not, anyway, until there is an "unavoidable dispute," by which I suppose he means until he loses on his new, principal argument described above.

[NOTE: Senator Kerry's quick reply letter to Addington is here.]

I'm less interested here in the merits of Addington's arguments, however, than by the odd way in which the arguments were presented. The relevant Executive branch agency tasked -- by the President -- with enforcement writes to the OVP twice, and is unceremoniously ignored. That agency then writes to DOJ to break the logjam, and no one even bothers to acknowledge receipt of the letter, let alone answer the question.

Then David Addington -- without obtaining DOJ's answer to the question -- personally sends a letter to a Senator, within one day, providing a legal response. Was that legal response cleared with DOJ? Does it represent the official views of the Administration? Do Addington's views trump OLC's? Render OLC as irrelevant as the ISOO? Did Addington even bother to go through the appropriate OMB inter-agency process? Or is the Vice President exempt from these ordinary Executive branch procedures, too?

As the Post's Becker/Gellman series continues to describe tomorrow with respect to Cheney's dominance of even environmental policymaking, for all practical purposes the OVP is the Bush Administration, and its views become the official views of the Administration, no matter what others in the Administration think. Call it the Unitary Shadow-Executive.

A couple of days ago, I asked the befuddling question left unanswered by Gellman and Becker: Why? After all, there are extremists and hard-liners in every Administration, and they are often at the table, and even influential. But the internal Executive branch process is designed to ensure that multiple perspectives are considered, and therefore the most extreme and most uncompromising positions rarely prevail. In this Administration, the OVP almost invariably wins. Indeed, the VP wins after cutting everyone else out of the loop altogether. And everyone else is incredulous at this radical departure from the ordinary modes of decision making. (I know from experience that this was so at OLC early in the Administration, and not only among us Clinton holdovers -- and we know from Becker/Gellman and others that it was also true at DoD, State, CIA, NSC, etc.) And yet the pattern continues apace, even to this very day, with David Addington apparently feeling free to simply ignore the ordinary methods by which an Administration typically arives at a legal interpretation.

Part of the explanation is, of course, that Addington and Cheney win because they are unrelenting. Everyone else in D.C., i.e., the other players in the Executive branch, have gotten to where they are today by learning to compromise and negotiate, to play the give and take of institutional decision making. These guys, however, don't give an inch, while everyone else is still in the reality-based community that they know and love. In most institutions, such stubborness and unwillingness to compromise would lead to marginalization. But in this one, the Vice President and Addington simply wear people out -- no one relishes the fight, and so they simply give up. Victory by attrition and intimidation. (It also helps, of course, that Rumsfeld, Cambone, Gonzales, Flannigan and Miers were complicit . . . .)

But a larger part of the explanation is simply that Cheney always wins because, for some reason, the President has decided that that is how it should be. Which only clarifies that the real question is why the President allows this to happen.

In a great series of posts, all linked here, Hilzoy concludes that the Becker/Gellman story can only be explained by a bunch of cabinet officials who are dysfunctional, allowing an "insane" process to continue unabated. She focuses on the astonishing fact that Colin Powell and Condi Rice only found out about the August 2002 Torture memo from newspaper accounts two years after the fact:
Stop and think about that for a moment. A memo making an absolutely radical, 180 degree change in US detention and interrogation policy in ways that will predictably have an enormous impact on our standing in the world is signed, and neither the Secretary of State nor the National Security Advisor finds out about it until two years later? From a newspaper article?
Similarly, Powell and Rice did not find out about the President's military commission order until after it was issued . . . as to which Hilzoy writes:
Again, a major policy decision is made, one that will have huge effects on our relations with other countries, and Powell and Rice find out about it after the fact, from CNN.

This is insane.

***

Here's a reflection that is not exactly rocket science: it's much, much better to find out what's wrong with an idea before you adopt it, not afterwards. The way you try to maximize the chance of finding out what's wrong with your ideas before you adopt them is to make sure that your policy proposals are vigorously debated beforehand. Sometimes you can do a long policy vetting process involving zillions of people and inter-agency confabs and all that; sometimes you only have time for a vigorous brainstorming session among principals; but you should never, never make decisions without serious debate if you can possibly avoid it.

* * * *

There is simply no way in which Dick Cheney could have operated as he did in an organization that was not utterly dysfunctional. None. And at least part of that dysfunction has to be put down to the astonishing passivity of his co-workers. . . .

[Rice and Powell] are the National Security Advisor and the Secretary of State. . . . [T]hey should have gone to the President the first time something like this happened and said: we refuse to work in an environment in which we have to find out about things like this from the newspapers. Trust us or we're out of here.

* * * *

These articles should be assigned to management classes as studies in what not to do. They describe the exact sort of decision-making process that reliably leads to disaster, and the kinds of personal dynamics that enable it. It's a model of complete organizational breakdown, and it should be studied for generations to come, so that it is never repeated
I agree with much of this. But as today's Post story explains, resignation doesn't ususally have much of an effect, other than to strengthen the VP's hand, and his portfolio. Christine Todd Whitman did resign, because she was unable to convince the President to reject Cheney's extreme views on environmental issues. That was the right thing to do -- but notice that it barely caused a blip in the Imperial Vice Presidency.

Hilzoy's co-blogger Publius offers an even more comprehensive indictment -- of all of us: "The reason Cheney’s Office got to dominate the executive branch is because we -- America -- elected a neophyte who lacked the experience, knowledge, and judgment to be president. . . . Our nation’s political machinery elevated a grossly inexperienced and ignorant man to the Oval Office. The entirely predictable result is that he would be forced to rely on someone else to make the decisions he wasn’t able or willing to make."

I'm not sure about this. Even if Bush didn't have the chops to make decisions himself -- and in that respect, he wouldn't be alone among Presidents -- what explains his constant deference to Cheney, and his refusal to listen to any of his other trusted advisers? Publius surmises that Bush was simply rolled by Cheney and Rumsfeld, because they were more savvy than their competitors for the President's approval. I don't know, but it's a point worth considering:
It’s pretty simple. When you elect someone who doesn’t know what he’s doing, you’re essentially electing someone else to be president. Kerry and Gore had their flaws, but they would have been the Deciders. They certainly would not have tolerated a lawless, out-of-control operation such as Cheney’s Office. At the very least, they would have, you know, been aware of the debates and had some pre-existing knowledge to inform their judgment. Bush, by contrast, was simply no match for Cheney and Rumsfeld’s decades of experience. Thus, the failure that is Cheney is not merely an individual failure on the part of Bush. Cheney is an institutional failure -- a failure of our political system. That’s the key to understand. The rise of Cheney is itself an indictment of our political institutions and culture.

Comments:

here is Addington's letter:

http://kerry.senate.gov/newsroom/pdf/Addington_Letter.pdf
 

Call it the Unitary Shadow-Executive.

Heh heh.

Marty, I have a dumb question. Clinton's original executive order seems to have been a response to the Counterintelligence and Security Enhancements Act of 1994,
which "directs the President to establish procedures governing access to [classified] information which shall be binding on all executive departments, agencies, and offices." Is that true?
 

So, Marty, now it's a problem when someone responds TOO quickly?! I still have yet to see you, or any other law professor, point out a single executive Power VESTED BY THE CONSTITUION in the Office of Vice President.
 

Ummm...

Why is this still a "story?"

The WH has already stated that the OVP is not covered under this executive order. To the extent that the EO ever applied to the OVP, it has now been orally amended by the President to remove the OVP.
 

I agree with Hilzoy et al. that WAPO's expose of the Cheney Administration ought to shake the foundations of our political system. There is a new cancer on the presidency--this time it's the office of the vice president. I'm no scholar, but as I recall the VP is essentially undefined, and therefore unconstrained, by the Constitution. Cheney, per Bush, has turned it into an Orwellian monster within the executive branch.
Back to politics, it is important that Bush get hammered mercilessly for being a puppet president. His image as a strong, willful leader ought to be shattered into a 1,000 pieces, though many in the liberal blogosphere (e.g. Tristero) seem to be more worried about sustaining their conception of Bush as the ultimate evildoer. I think it hurts him much more to be revealed as a tool, front man, stuffed shirt, etc. The truth about the Bush presidency is largely out, but Democrats and liberals don't seem to appreciate the significance of it. I think it has the potential to shrink Bush's approval rating to sub-Nixon levels.
 

Indeed, the VP wins after cutting everyone else out of the loop altogether. And everyone else is incredulous at this radical departure from the ordinary modes of decision making.

When exactly did the VP cut the heads of the various other agencies and departments "out of the loop altogether?" The WP series on Cheney details a series of internal debates with full participation by the various departments who actually had a dog in the fight. Justice and State were upset when they were not included in the CIA and military decision making process concerning POWs, but then again they had no part in the detention of POWs. That was a military matter.

I would suggest that Cheney is a forward strategic thinker who was forming his policy and legal arguments long before the bureaucracy even contemplated the issues. The Confederate cavalry general Nathaniel Bedford Forest is said to have observed that the side which gets to the battlefield "fustest with the mostest" will win. Cheney was submitting detailed legal memorandum to the President long before the slow moving bureaucracy even started thinking about the issues.

Part of the explanation is, of course, that Addington and Cheney win because they are unrelenting. Everyone else in D.C., i.e., the other players in the Executive branch, have gotten to where they are today by learning to compromise and negotiate, to play the give and take of institutional decision making. These guys, however, don't give an inch, while everyone else is still in the reality-based community that they know and love.

Cheney is the one who appears to have a real world outlook on how to win the war on the battlefield and in the political trenches of the Congress and the executive bureaucracy. Being relentless is a common trait among leaders who actually prevail over the bureaucracy.

In a great series of posts, all linked here, Hilzoy concludes that the Becker/Gellman story can only be explained by a bunch of cabinet officials who are dysfunctional, allowing an "insane" process to continue unabated.

This is more of the same "misunderestimation" of one's opponents which cause bureaucrats like Powell to lose consistently to Cheney. There is nothing "insane" about the side which out thinks and out prepares its opposition prevailing on a routine basis. Cheney won and continues to win because he earns the victories.

These articles should be assigned to management classes as studies in what not to do. They describe the exact sort of decision-making process that reliably leads to disaster, and the kinds of personal dynamics that enable it. It's a model of complete organizational breakdown, and it should be studied for generations to come, so that it is never repeated.

I would suggest that Mr. Cheney's tenure as VP will be studied for years by Presidents and Vice Presidents who are struggling to find ways to accomplish goals in face of an intransigent bureaucracy and Congress. Cheney has succeeded where many many others have failed and given up.

Hilzoy's co-blogger Publius offers an even more comprehensive indictment -- of all of us: "The reason Cheney’s Office got to dominate the executive branch is because we -- America -- elected a neophyte who lacked the experience, knowledge, and judgment to be president. . . . Our nation’s political machinery elevated a grossly inexperienced and ignorant man to the Oval Office. The entirely predictable result is that he would be forced to rely on someone else to make the decisions he wasn’t able or willing to make."

Mr. Cheney suggested courses of action. Mr. Bush made the decisions. Mr. Cheney implemented those decisions. Mr. Cheney has turned the OVP into a White House Chief of Staff enforcement office. Mr. Cheney is thus arguably one of the most successful chiefs of staff in history.
 

This Cheney mess is an excellent example of the kinds of problems our governmental system leads to. I agree that this is a problem of our system, not an issue of individuals in the system. As bad as Cheney might be, he would not be in the position he is in if the system were more effective in putting the right people where they should be. I have argued elsewhere that one solution would be to have the Congress, specifically the House of Representqtives, assume its authority to hire and fire the heads of the president's cabinet. This would have revolutionary effects, and it would not be easy to implement, but perhaps we need a revolution.
 

Marty, you are such a pinko.

Codification and memorialization are but archaic holdovers to the era of the Pre-Unitary Executive (and era I prefer to call "PrUnE"). During this anachronistic and backwards era, we relied on the President to write executive orders and sign laws for them to become binding upon the Nation. In this new, and englightened era of the Unitary Executive (also known as "UnE"), archaic technologies and practices (i.e., pen, paper, Lexus-Nexus) have been rejected for the efficient and effective method of "Oral Amendment".

Why go through the tedious and time-consuming process of writing, editing and publishing law? Everyone knows that by merely opening his mouth, the President can actually breath law into existence, and substance into law. There's no need to write law down; if the President says something is so, it's so! This worked for Louis XIV (notwithstanding the fact that he was a degenerate Frenchman), and it works for President Bush.
 

Now we on the fly "oral amendments" of EOs?

Why doesn't Bush just issue blank pieces of paper as EOs, and save even more time?
 

CONSTITUION (above) should read CONSTITUTION.

P.S. Gary Larsen -- are you suggesting the CONSTITUTION provides the House of Representatives the power to "hire and fire" Cabinet heads? I would be very interested in your argument prior to the next Democratic President.
 

I suspect many here are allowing their opposition to Mr. Cheney's policies to color their views on Mr. Cheney's methods of gaining political victories.

Would you still oppose Mr. Cheney's methodology if he instead fought and won the political battle to force the troops to retreat from Iraq?

Regardless of whether you agree with Mr. Cheney's policies, his political skill ad acumen in achieving his goals is extremely impressive in this era of gridlock.

I suspect that many of you would love to have Mr. Cheney on your side winning battles for your issues rather than the ongoing failures of the singularly inept Ms. Pelosi and Mr. Reid.

One other observation if I may. Mr. Cheney's relentless and successful pursuit of his goals have hardly resulted in political disaster when compared to the consensus building failures of the Dems in Congress. The voters are unhappy with both branches of our government right now.
 

This comment has been removed by the author.
 

Damn, Charles and Bart,

You guys are "apparatchniks." Pure, complete, party loyalists. The world could burn because of this party and you would go down claiming that it is merely a temporary heat wave (but alternatively claiming that it was all caused by Clinton, no doubt).

Executive Orders are amended "orally"? Really? Damn, you really have jumped the shark on that one.

Charles - stop being an idiot. The OVP has been vested duties with respecting to breaking ties in the Senate, but that does not change the character of his office. The Constitution also vests in the Congress the duty to impeach the President/OVP. Are you claiming these prosecutorial powers now transform the Congress into the Executive Branch. Stop being an "ass" and give it up. Even Addington, the inventor of this "theory, retreats from this moronic position. The fact that the Framers gave the OVP this power does not cause a 4th Branch to exist. In any event, Cheney burned that argument in 2001 when he claimed "executive privilege" to keep his meetings with Enron and the other oild folks a secret from us.

Christ, it insults the polity to even discuss this issue.
 

Would you still oppose Mr. Cheney's methodology if he...

I would oppose anyone who thought themselves above the law (or believed themselves to be able to produce it out of whole cloth), regardless of their political inclinations or acts.

I'll agree that it may be an effective way to realize political goals. By opening up categories between the ones that have been regulated over the years, a Soja-esque third space is created whereby the "subaltern" fascist can manipulate a democratic system to his/her own end. Yesterday, it was the alien unlawful enemy combatant that is neither a prisoner of war nor a civilian. And Gitmo's location between states. Today, it's the hybrid Vice-President's office that is an entity for the purposes of appropriations, but isn't one for the purposes of oversight--the VP himself might just exist between the Executive and Legislative branches. Tomorrow, one can only imagine what categorical nightmares will be unleashed in the pursuit of such political goals.
 

Charles

No the Constitution does not give the House of Representatives the power to hire and fire the department heads-but neither does it deny it to it. It gives the President the powr to nominate and appoint the heads of the departments, but it does not say how these individuals are to be chosen to be nominated. The first Congress, by statute, set up the executive departments, and therein specified that the heads of the departments were to be chosen by the president. Insofar as these are statutes, subsequent to the Constitution, they can be changed by the legislature without any necessity for Constitutional amendment. They could be changed to say that the department heads are to be chosen and are subject to the authority of the House, not the president.

GYL
 

Jack:

If you'd prefer not to discuss this issue, that's fine by me.

Gary:

I wasn't suggesting an Amendment to the Constitution was necessary -- good luck getting enough votes to override a Presidential veto though -- I think your proposal would make the concept of "nomination" irrelevant. Thanks for discussing the issue.
 

If the VP is president of the senate, and Cheney was impeached, wouldn't he preside over his own impeachment?
 

Jack said...

Executive Orders are amended "orally"? Really? Damn, you really have jumped the shark on that one.

My friend, we are talking about executive orders, not statutes. They can come in any form and they can be changed at the whim of the President because they are his orders.
 

bitswapper:

In case you are asking me that question, I think Cheney could indeed preside over his own impeachment trail (unless he was also "Acting President" under the 25th Amendment, for instance). I think I've now answered every question you've every asked of me. I anxiously await your returned courtesy on the other threads.
 

As an aside, the Senate has decided to exceed its constitutional authority again by issuing subpoenas for internal deliberations of the Executive over the Terrorist Surveillance Program. They lost this battle before when they subpoenaed the internal documents of Cheney's energy task force.

Perhaps, Mr. Cheney might suggest to the President that he have the AG issue subpoenas to the Dem Caucus in the House and Senate for all their internal documents concerning their plans to force the retreat of US forces from Iraq. After all, the same nonsense which is fair for the goose is fair for the gander.

And Congress wonders why their polls hover at the same level as Richard Nixon just before his resignation...
 

Better yet, let's get Cheney to start actually presiding in the Senate full time, and then he can really muck things up.
 

Oral amendments to Executive Orders!!!

A great way to run a government. Bush ordered Guantonomo inmates "mortar boarded" but Cheney heard "water boarded" and here we are.

How stupid is this? Unless Bush is going to personally tell everyone in the Executive Branch, (plus Cheney), his "oral" amendment is going to be memorialized in writing at which point it's no longer oral, but just another EO.

Does the white House even have its story straight on these little mechanics?
 

I suspect many here are allowing their opposition to Mr. Cheney's policies to color their views on Mr. Cheney's methods of gaining political victories.

Yes, you are right, what I oppose is not Cheney's influence per se, but his position that the President does not have to obey the law and the Vice President does not have to obey either the law or the President. His continual bypass of normal channels is just a symptom of that position.
 

Charles,

Fine, if it makes you happy, I will concede your point. The Constitution does not vest any executive powers in the Vice President. I do not see how it logically follows that the Vice President may therefore exercise executive powers without restraint or oversight.
 

Enlightened Layperson:

Thank you. I will similarly concede that the Vice President is subject to the same exact restraint / oversight in exercising executive Power as the President is. Of course, the President can resign his Office (Nixon) -- so can the Vice President (Agnew) -- what the President cannot do is force the Vice President to resign his Office.
 

Ultimately, they can both be impeached. What I don't think Congress can do is subpoena either the President and Vice President, forcing them to testify before Congress.
 

The Constitution does not vest any executive powers in the Vice President. I do not see how it logically follows that the Vice President may therefore exercise executive powers without restraint or oversight.

In fact, not only does the Constitution NOT vest powers in the VP, it specifically vests all executive power elsewhere (in the President). Thus, the VP can NEVER exercise executive power; all he can do is carry out the directions of the President. Or those of Congress (Art. I, Sec. 8, cl. 18).
 

Regarding impeachment trials, you all seem so knowledgeable but don't know that the Chief Justice of the United States and not the Vice President, preside over Senate impeachment trials.

Is 1998 that long ago that you forget it was Chief Justice Rehnquist and not Vice President Gore who presided over Clinton's impeachment trial?
 

Mark:

What stops the President from delegating vested powers to the Vice President?

Marc:

Please re-read the Constitution, Art. I, Sec. 3: "When the President of the United States is tried the Chief Justice shall preside" -- as President of the Senate, Cheney could indeed preside over his own inpeachment trial.
 

No particular comment, other than to say that you have done a fine job on this and a number of other issues. So thanks.
 

You're welcome.
 

My friend, we are talking about executive orders, not statutes. They can come in any form and they can be changed at the whim of the President because they are his orders.

No, they can neither come in "any form", nor can they be changed "at whim." Executive orders are generally developed first through executive branch agencies, following the standard form detailed in 1 CFR 19.1, sent to the AG for review of both form and legality, sent to the Federal Register for final proofreading, then sent to the President to be signed. After that, the order is entered into the Federal Register.

When the President makes an amendment, that requires a new executive order, just as the executive order we're discussing is an amendment of a previous EO made by Clinton.

Likewise, while the President can delegate any of his functions to someone who has undergone Senate review, he's still required to announce that delegation through publication (3 USC 301).
 

PMS_Chicago said...

BD: My friend, we are talking about executive orders, not statutes. They can come in any form and they can be changed at the whim of the President because they are his orders.

No, they can neither come in "any form", nor can they be changed "at whim." Executive orders are generally developed first through executive branch agencies, following the standard form detailed in 1 CFR 19.1, sent to the AG for review of both form and legality, sent to the Federal Register for final proofreading, then sent to the President to be signed. After that, the order is entered into the Federal Register.

When the President makes an amendment, that requires a new executive order, just as the executive order we're discussing is an amendment of a previous EO made by Clinton.

Likewise, while the President can delegate any of his functions to someone who has undergone Senate review, he's still required to announce that delegation through publication (3 USC 301).


Please.

None of these formalities are required under the Constitution. These formalities are used to advise the President and to inform the bureaucracy of the order.

The President can damn well decide whether to give an order orally or in writing.

The President need not consult with anyone before he gives an order because he is the sole executive under Article II. The AG works for the President and has no independent constitutional power to change or deny an executive order. The review process is simply to provide advice to the President.
 

The President is not free from all legal encumbrances other than your de novo reading of the Constitution, Bart.
 

Setting....the Oval Office...

Bush (yelling down the hall): Mr. Vice President!

Cheney: Ya, George?

Bush: Mr. Vice President, you remember that Executive Order I made? Just so were clear, the bad parts of that didn't apply to you.

Cheney: Thanks George. Run along now.

And....scene!

By the way Bart, I didn't see in the Constitution where the President was permitted to make executive orders in the first place...
 

What stops the President from delegating vested powers to the Vice President?

The definition of the word "vested". Where in the Constitution does it say the President can give some of his (I-thought-it-was-unitary) Executive power to anyone else?

Is 1998 that long ago that you forget it was Chief Justice Rehnquist and not Vice President Gore who presided over Clinton's impeachment trial?

Charles is correct that the Constitution does not say who presides over the impeachment of the VP. The Senate rules (and common sense) provide that the CJ will do the honors.
 

Even if Bush didn't have the chops to make decisions himself -- and in that respect, he wouldn't be alone among Presidents -- what explains his constant deference to Cheney, and his refusal to listen to any of his other trusted advisers?

Um… you’re assuming that there are “other trusted advisers”. I don’t think that there are.

Just who is it that Bush does trust, really?

One of the themes that evolved from the recent DOJ thrash was the existence of a “core political family” of sorts surrounding Bush. Its members are all all-too-familiar names--Rove, Meiers, Gonzales, etc.--and, of course, Cheney. At this point, it seems clear that if you’re in this group, you’re golden, you’re special, you’ve got the boss’s ear, and the President’s hypertrophied sense of loyalty will protect you to the extent that almost no amount of bad behavior will hurt you (I say “almost” here because I sense that Rumsfeld was part of this group, but... well, sacrifices sometimes have to be made, sigh).

I would suggest that these are the people whom the President trusts, period, end of story. Because he trusts them, he’s perfectly willing to delegate to them, to listen to them, to accept their advice, rely upon them, and so on. I suspect that there’s something pathological here in that this group also represents the sum total of everyone that Bush is capable of trusting... and consequently, all of the people you’d normally expect to be “trusted advisers” are pretty much there pro forma.

A corollary, of course, is that if you’re not part of the inner circle, your opinions are valued only to the extent that they coincide and support those of the inner circle. Pressing a conflicting opinion might get you fired or reassigned to the Bermuda Triangle; but most likely, it’ll simply cause you to be marginalized, sidelined, out of the loop... and worst of all, ignored. Bummer...
 

This comment has been removed by the author.
 

Charles

I agree that, working within the present structure, it would be practically impossible to change the structure. There is a tremendous investment in the status quo among all parties, no matter how bad that structure is. That is why I have said we need a revolution. My proposal at this point is only an argument of possibility.

GYL
 

Mark Field:

Sorry, but PMS_Chicago already posted the statute (3 USC 301) that deals with the President delegating his "vested" powers. Better luck next time.

Gary Larsen:

Thanks for agreeing, but I hope you'll understand that I cannot join in your call for a revolution (18 USC 2385).
 

If the President issues an "Oral Amendment" and no one is there to hear it, it is still binding law. That no one may have heard the original "Oral Amendment" is immaterial shall be no defense in cases in which the "Oral Amendment" is violated.

Likewise, when an "Oral Amendment" remains unspoken, it may be called a "Mental Amendment". These, too, are binding law. Citizens who wish to avoid crossing the President and violating the law best come to understand this.
 

Mark Field:

Sorry, but PMS_Chicago already posted the statute (3 USC 301) that deals with the President delegating his "vested" powers. Better luck next time.


Congratulations. It's not often you can make two errors which undercut your whole argument in one sentence.

First, this argument gets you in real trouble. By relying on it, you acknowledge that Congress has power to control the actions of the Executive Branch. That makes Cheney subject to Congressional rules. Including, specifically, the rule set forth in the EO which was promulgated pursuant to this code section.

Second, you're simply wrong about what the statute does. Just so we're clear, here's the statute:

"The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part."

It does NOT permit the President to delegate his power. In fact, it specifically holds him responsible for any acts performed by others. What it does do is allow him to designate others to perform his functions. "Functions /= "powers". That's why the President continues to be responsible even though the action was performed by one of his minions.

As a bonus point, note that the statute specifically precludes any "I changed it orally" defense.
 

One of the themes that evolved from the recent DOJ thrash was the existence of a “core political family” of sorts surrounding Bush. Its members are all all-too-familiar names--Rove, Meiers, Gonzales, etc.--and, of course, Cheney. . . A corollary, of course, is that if you’re not part of the inner circle, your opinions are valued only to the extent that they coincide and support those of the inner circle.

An interesting insight, and one worth further consideration. Note the important difference here. Figures like Powell, Gates and (like it or not) Ashcroft are people of considerable ability who made it to prominence on their own without any help from Bush. Whereas figures like Gonzales, Miers or Rove are hacks who owe their entirely careers to W's patronage. That makes them more "reliable."

That could explain Rumsefeld who is, so far as I know, a man of considerable abilility, though not the abilities we needed in Iraq, and whose overall career was independent of Bush. Maybe he was not part of the inner circle, just someone who told the inner circle what they wanted to hear.

But, I confess, this explanation does not account for Cheney, whose abilities are considerable, and who distinguished himself apart from George W.
 

EL,

Whatever it is that Cheney has, it has been operative since he chose himself as Bush's running mate, so we have to hunt at least that far back for reasons.
 

Mark Field:

I never said the President is magically not responsible for any acts performed by others. What is YOUR definition of "empower"?
 

Charles,

Can you respond to the substance of Mark's post; you know, the part that takes apart your argument? If you can't, and if you cannot accept that you were mistaken, please at least apologize for your attempt to misdirect the response.
 

Which part would that be, Fraud Guy? I have no problem with the part of Mark's post that states the obvious -- of course Congress has the power to control the actions of the Executive Branch -- the powers of the purse and impeachment being the most evident. However, even those are not unlimited, to the extent Congress un-Constitutionally infringes on executive Power, for instance. Ergo, my disagreement and question -- I thought that was obvious in asking what the definition of "EMPOWER" is -- stems from Mark's unsustantiated claim that Congress has somehow forbid the President from delegating any executive Power. But, don't worry, I'm sure that Mark can defend himself just fine without your valient assistance.

When he does, perhaps he can address the following as well:

Message of the President

To the Congress of the United States:

I herewith transmit my plan for the Reorganization of the Executive Office of the President (EOP), Reorganization Plan No. 1 of 1977 . . . The operations of the Office of the Vice President reflect the combination of constitutional, statutory, and Presidentially assigned duties that make it unique among EOP units. Because his interests and assignments cover the same range as the President’s, the Vice President requires a staff with expertise in diverse areas. Its basic functions should not be changed. However, I propose that certain support functions—involving accounting, personnel services, and supply—be transferred to a centralized EOP Administrative Unit . . .

Jimmy Carter

The White House, July 15, 1977.


This is becoming like a broken record: if it was O.K. for every President in the past to do something, why is it now suddenly morally wrong and the end of our democratic republic as we know it?
 

valient = valiant
 

Bart DePalma said...

As an aside, I observed yesterday that the Senate exceeded its constitutional authority again by issuing subpoenas for internal deliberations of the Executive over the Terrorist Surveillance Program. They lost this battle before when they subpoenaed the internal documents of Cheney's energy task force.

The Executive just told the Senate to take a hike concerning June subpoenas directed at Rove and Miers. I expect the same response concerning the TSP given that the Intelligence Committees have all been briefed.
 

Charles - I concede your point. It is interesting that the Constitution expressly states who presides over the President's impeachment but not on anyone elses. Since I don't believe in an expansive/living interpretation of the Constitution, then Cheney would indeed preside over his own impeachment.

I wonder what would have happened in 1973 had Spiro Agnew not resigned?

Finally, I am puzzled why anyone here or in Congress believes that somehow the Justice Department or any other executive branch agency cannot be directed or overruled by the President on anything. The Constitution is explicit that the executive branch is invested in one person, the elected president.

When I see reporters scowl with disapproval that the "White House" may have tried to influence a cabinet agency I begin to wonder if they ever took a U.S. civics class.
 

Charles,

The power of the Congress to control the actions of the Executive is most evident in the passage of laws. If the Congress passes a law, it is the requirement of the Executive to execute them. If the President decides that a bill sent to him is or has unconstitutional, he can veto it, outlining his objections, and the Congress can either modify its legislation according to his objections, or attempt to override the veto. In either case, if they then repass the legislation, it becomes law.

Now you are technically correct that the coercive measure Congress has to force compliance with this is impeachment, but a President who felt that they were complying with the Constitution would follow it, and the laws that Congress passed, and not ignore or attempt to do an unconsititutional line item veto with a signing statement.

You relish the lawlessness of this administration, and feel they should only respond to force majeure. When did you stop believing that the Constitution is the law of the land? When did you start your revolutionary attempts to overthrow the laws of the US?
 

The Bush family personally benefitted to the tune of approximately $1 billion in the buyout of Dresser Industries by Halliburton orchestrated by Dick Cheney at just about the same time Cheney "nominated" himself as Bush's running mate. As described in Kevin Phillip's book. They got the added benefit of having a huge potential asbestos litigation liability transferred from a business in which the Bush family had a large stake, to Halliburton. Halliburton took the heat of a shareholder lawsuit over the issue. And of course, tort reform was high on the list of administration priorities pre-9/11. Nobody seems to want to write about this.

Follow the money. Cheney got his power from W. the old-fashioned way: he bought it.
 

This is becoming like a broken record: if it was O.K. for every President in the past to do something, why is it now suddenly morally wrong and the end of our democratic republic as we know it?

What in the Carter EO you posted above are we supposed to assume is the same as the current situation?

If the OVP is a "unit" of the EOP, as you've pointed out for us, then guess what? That's right, it's an entity in the executive branch!

If it's an entity in the executive branch, then its handling of classified materials is clearly subject to the rules of executive order 13292, regardless of any hemming and hawing about actual intent.
 

This comment has been removed by the author.
 

Charles wrote:
In case you are asking me that question, I think Cheney could indeed preside over his own impeachment trail (unless he was also "Acting President" under the 25th Amendment, for instance). I think I've now answered every question you've every asked of me. I anxiously await your returned courtesy on the other threads.


I was only fielding a general question relevant to the thread/posting - don't take it personally. I'm sure everyone appreciates staying relevant to the thread.
 

bitswapper:

I won't take it personally if you refuse to answer my questions, even though I answered all of your questions.
 

PMS_Chicago:

I was referring specifically to "[t]he operations of the Office of the Vice President reflect the combination of constitutional, statutory, and Presidentially assigned duties that make it unique" to the point that the Vice President himself is not exclusively within the Executive or Legislative branch. Once we decide whether it is an "entity" then we will hopefully be able to answer if it is a "unit".

FraudGuy:

I never stopped believing that the Constitution is the law of the land, and I dispute the conclusion that disagreeing about this separation of powers issue means I started any revolutionary attempt to overthrow (legitimate) laws of the U.S.

That being said, I think if Congress passes a clearly un-Constitutional law over the President's veto, the President does NOT have to enforce that law. In fact, the Constitution never empowers the President to enforce un-Constitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. The President's duty to preserve, protect, and defend the Constitution requires the President to therefore disregard un-Constitutional statutes. Although I don't agree with everything in this OLC memo, it's a good starting point if you want to discuss further:

http://www.usdoj.gov/olc/nonexcut.htm
 

Have you ever heard of the PRESIDENT's "Power of the Purse"?
 

CHarles wrote:
bitswapper:

I won't take it personally if you refuse to answer my questions, even though I answered all of your questions.


Which questions in this thread did you address to me did I not respond to? If there were any, is it really worth taking it personally?
 

I just said I wouldn't take it personally. What part of that don't you understand?
 

Charles:

In fact, the Constitution never empowers the President to enforce un-Constitutional statutes.

Please cite this from the Constitution. The President's opportunity to object to what he perceives to be an unconstitutional bill is the veto. If Congress overrides that veto, he is required to faithfully execute the laws. Under current construction, if he further wishes to object to the constitutionality of a law, he can take it through the courts.

You are continuing your assault on the Constitution by not only avoiding the plain language, but also by adding your own amendments. Please cite where in the Constitution or any amendments where it plainly states that the President can ignore, as opposed to execute, the laws.

My relevant cites:

he shall take Care that the Laws be faithfully executed

What is a Law?

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Are you propsing a new amendment? The line-item veto you are suggesting was already struck down. Again, I ask, how long has it been since you began your attempts to undermine the Constitution? (At least two months at this site that I can tell.) Now, if another witness will come forward....
 

Right before the part about "faithfully executing the laws" there's this little part about preserve, protect, and DEFEND the Constitution, the SUPREME law of the land. I already gave you the OLC memo on the subject drafted during the CLINTON Administration (in case you really think Bush is the first President to think of this).
 

Charles,

0 for 2.

#1. I never brought up Clinton, you did. You seem to have this unnatural fascination with putting Clinton and Bush together.

#2. The method provided for in the Constitution for the President (i.e., to do what your summed cite states) to prevent un-Constitutional laws is the veto (or, as current construction allows, he can challenge them through the courts to the Supreme Court). Is there some super secret amendment that states he can also ignore the Laws, instead of "faithfully executing" them? You still have not cited it.

When did you stop supporting constitutional Presidential actions? Why do you support faithfulness in marriage but not in the President? (Ah, this is where your ambivalent support for Clinton comes from).
 

CHarles:

I won't take it personally if you refuse to answer my questions, even though I answered all of your questions.


Bitswapper:
Which questions in this thread did you address to me did I not respond to? If there were any, is it really worth taking it personally?

Charles
I just said I wouldn't take it personally. What part of that don't you understand?

The part where you claim your disatisfaction in other threads as a basis for 'taking it personally' from your earlier posting in this thread.
 

I never claimed to take it personally.
 

Charles wrote:I never claimed to take it personally.

Then it should no problem to explain which questions you posed to me in this thread that I didn't address.
 

It's no problem -- I didn't ask you any questions on this thread -- I answered all of your questions though. I made it clear at 2:36 PM that my questions you've declined to answer were on other threads.
 

Charles wrote:

It's no problem -- I didn't ask you any questions on this thread -- I answered all of your questions though. I made it clear at 2:36 PM that my questions you've declined to answer were on other threads.


So you didn't get the responses you wanted in some particular discussion, and that's your basis for taking it personally and stalking me from thread to thread on some kind of campaign of personal slander.
 

For the last time, I'm not taking it personally -- neither am I "stalking" you -- feel free to have the last word on this issue.
 

Charles wrote:
For the last time, I'm not taking it personally -- neither am I "stalking" you


Then why bring up what you see as unaddressed issues from different discussions into this thread or any other?
 

Kuv yuav tsis coj nws tus kheej yog hais tias koj tsis kam teb kuv cov lus nug, txawm yog kuv teb tag nrho koj cov lus nug.

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