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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Was Addington Right about the Vice Presidency?
Saturday, August 16, 2008
Was Addington Right about the Vice Presidency?
You may remember the mildly weird controversy over whether the Vice President is really a member of the legislative branch, not the executive. David Addington defended this view when he appeared before a House subcommittee recently, referring I believe to OLC opinions.
This is a key provision:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
If the V.P. is a "member" (not just a "senator" or "representative," this suggests s/he should not "hold any Office under the U.S." including any number of executive offices. The semicolon suggests that there are two classes of people involved here, not just senators and representatives.
How does this apply to the membership of the NSC? Does the spirit of the clause limit the VP's role in the presidency overall? After Adams, it was over a hundred years before the VP went to regular Cabinet meetings. Thomas Jefferson considered himself a member of the Senate and turned down a role in the Adams Administration.
Cf. The Cheney Energy Task Force Case, where the Supreme Court spoke of the "petition involving the President or the Vice President" and "claims against the Executive Branch" w/o implying that the VP was some sort of barnacle.
The VP seems a special hybrid, its current role perhaps not that "originalist" in character, fwiw. But, it seems off to suggest members (sic) of executive positions and roles (official and unofficial) are not "members" of the executive.
And, let's be honest, de facto "more" a member of the latter.
Well I think the VP is clearly a member of the executive branch.
Presiding in the Senate isn't any different than the President's authority to sign legislation or submit treaties or nominations to the Senate. The two branches function together, but to the extent that the VP acts as an agent of the President, he is in and of the Executive.
The electorate votes for the vice president as a "unitary" part of the party ticket for the executive office. The chair of the senate is ex officio part of duties of office by the vice president. The two political parties have no voice in who chairs the senate. The Senate as a whole has no voice in selecting its chair.
It is helpful to review the Scotus opinion in the Cheney energy task force matter 03-475, 44pp published June 2004; also germane is the winsome 16pp memo entered by Associate Justice Scalia in bound volume 544 pp.913-929 which compares various executive officials' junkets in companionship with Scotus justices present and past, and the urgent need to remain unrecused as the instant matter's majority would shift to favor of complainants if recusal occurs, or some such tautological stance.
While the "The electorate votes for the vice president as a 'unitary' part of the party ticket for the executive office", the electors of the Electoral College are not required to vote for a president and vice-president from the same party.
Article II, Section I of the Constitution should certainly be interpreted by any reasonable person to place the office of the vice-president within the executive branch.
The problem with this improper delegation of powers argument is that the President never truly delegated any of his Article II powers to the Vice President.
Bush essentially made Cheney his first counselor and granted his office a portfolio to develop strategy in a number of areas. Because it was known that Cheney had the ear of the President and through his own extensive array of government contacts, Cheney was able to exercise a great deal of influence within the bureaucracy, but Bush did not delegate to him any of the powers of the President.
Bart, I don't think you are wrong about what actually happened under the Constitution, but the Bush Administration certainly made all sorts of CLAIMS about independent non-delegated executive power of the Vice President (they even won one in the Supreme Cuort).
Basically, the Administration's position is that the VP is in whichever branch provides him with more immunities and less accountability in the particular situation. And that's what we can't have. We need to pick a branch and apply 1 set of rules to the veep. And to conservatives, I would say-- imagine if Clinton had used these arguments to shield everything Gore did from investigation or accountability.
I agree that the President has characterized the office of VP in contradictory ways to gain legal advantage over Congress in their partisan sniping matches.
I simply cannot get all exercised over utterly meaningless inter-branch partisan gotchya contests. Given the basement popularity of the President and the sub basement popularity of the Dem Congress, i doubt I am alone in thinking that these people are neglecting to do their jobs while playing these games.
Thus, the issue of whether the VP is more executive than legislative is purely academic to me.
And to conservatives, I would say-- imagine if Clinton had used these arguments to shield everything Gore did from investigation or accountability.
Conservatives in general ignored (or ridiculed) the things that Gore did do ... you know, like issuing a report that said that aircraft cabin doors should be strengthened to prevent cockpit intrusions....
Outside of competency, though, the main difference between Gore and Cheney is that Gore didn't try to do anything in secret.
I simply cannot get all exercised over utterly meaningless inter-branch partisan gotchya contests.
That you think this is all "utterly meaningless inter-branch partisan gotchya contests" just shows that you have nary a clue. Sniffing Clinton's crotch and Lewinsky's panties was a "gotcha contest". Torturing people, and beating some of them to death in the process is not a "gotcha". That's just plain illegal no matter where you go. Pretending that complaints about such happening is just political gamesmanship shows an amorality that is staggering in its enormity.
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Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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