Convictions: Slate's blog on legal issues

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.

Re: The Binary Executive?

While I don't have thoughts on the substantive merits of Heller [FN1], David's comment on the Cheney brief's implications for the unitary executive raises an issue that's interested me greatly. Simply put, I don't think that the vice president's support of the theory of the unitary executive is at odds with his filing a separate brief in Heller.

1. Cheney May Well Be Right: The Vice President Isn't Part of the Executive Branch: As a preliminary matter, I must say that I tend to agree with the office of the vice president's position that the vice president isn't part of the executive branch. In fact, I think you would have been greeted with outright laughter from Vice Presidents Jefferson, Burr, or Calhoun if you had suggested anything to the contrary. Elected by the people-not appointed by the president-their office exists separate from the presidency. The vice president is not merely another executive branch officer subject to presidential dismissal.

Article II of the Constitution vests in the president "the executive power." It does not identify, however, the affirmative powers of the vice president-his only specifically identified power, other than his role in succession, is Article I's designation of the vice president as the president of the Senate. True, Article II does mention the possibility of vice presidential impeachment, and that may weigh against my point, but discussion of one branch in "another branch's Article" isn't unprecedented: The Senate's advice-and-consent power is found in Article II.

Looking back at the earliest Senate: If I recall correctly, Sen. Maclay's journal (which, I'll admit, I haven't read since law school) depicted John Adams as primarily a legislative official and only marginally part of the executive branch. In fact, the very opening sequences of Maclay's journal offer us Adams's own interpretation of the nature of his office, as he fretted over his role in the Senate during President Washington's imminent visit:

Gentlemen, I feel great difficulty how to act. I am possessed of two separate powers: one in esse and the other in posse. I am Vice-President. In this I am nothing, but I may be everything. But I am president also of the Senate. When the President comes into the Senate, what shall I be?

Sen. Ellsworth, himself no stranger to the framing of the Constitution, responds:

Mr. President, I have looked over the Constitution (pause), and I find, sir, it is evident and clear, sir, that wherever the Senate are to be, there, sir, you must be at the head of it. But further, sir (here he looked aghast, as if some tremendous gulf had yawned before him), I shall not pretend to say.

In short, from this account Adams, Ellsworth, and the others appear to see the vice president's express duties to be almost wholly legislative, with his relationship to the president much less clearly defined.

Adams' view of the vice president as standing apart from the executive branch is all the more manifest in his correspondence, some of which is quoted on the Senate's Web site:

For his own part, Adams professed a narrow interpretation of the vice president's role in the new government. Shortly after taking office, he wrote to his friend and supporter Benjamin Lincoln, "The Constitution has instituted two great offices ... and the nation at large has created two officers: one who is the first of the two ... is placed at the Head of the Executive, the other at the Head of the Legislative." The following year, he informed another correspondent that the office of vice president "is totally detached from the executive authority and confined to the legislative."

Now, I would hesitate before going so far as to say that the vice president is the "Head of the Legislative" branch. I've not researched this issue in terribly great depth and happily defer to the experts. That said, it seems to me plausible that the office of the vice president, created largely to rectify the problem of strategic voting in the presidential election, is simply sui generis.

 2. Cheney's Solo Brief Doesn't Contradict His Support of the Unitary Executive: Cheney's decision to act independently of the president in Heller only contradicts the theory of the unitary executive if you presume that the vice president is part of the executive branch.

More broadly, I don't see inconsistency in Cheney's support of the unitary executive while he is not, himself, part of the executive branch. While a member of the legislative branch (as the congressman from Wyoming), Cheney advocated the president's inherent power on the question of foreign affairs (as demonstrated in the Iran-Contra report's "minority views"). Arguing the executive branch's authority at the expense of his own branch's authority made clear enough his commitment to presidential authority. Indeed, that situation was much more paradoxical than is his support of the unitary executive while serving as a vice president with unparalleled access to the President.

3. So Why Did He Sign His Brief "President of the Senate"? If Cheney agreed with all of the above discussion, then he'd have felt comfortable submitting his own amicus brief under his proper title, "The Vice President." Why, then, did he sign it not with that title but, rather, with the title of "President of the Senate"? There, he loses me. Perhaps he did it merely for rhetorical emphasis. It seems to me, however, that he should have just signed it "Vice President."

Again, John Adams considered this issue. Maclay's journal discusses the debate surrounding the way in which Adams was to sign a bill for transmittal to the president. After initially agreeing to sign it as "President of the Senate," he changed his mind:

"I have, since the other day, when the matter of my signing was talked of in the Senate, examined the Constitution. I am placed here by the people. To part with the style given me is a dereliction of my right. It is being false to my trust. Vice-President is my title, and it is a point I will insist upon." He then addressed the Senate again, and with great positiveness told them that he would sign it as Vice President of the United States and President of the Senate.

Adams' approach strikes me as the right one: His office was that of the vice presidency; thus, his title was, at all times, vice president. True, he served as president of the Senate, but those constitute two "offices" no more than the president separately and simultaneously serves as both "president" and "commander in chief."

Cheney should have done likewise: He should have signed his brief as "vice president" or, at the very least, "vice president of the United States and President of the Senate." To do so is not at all inconsistent with the theory of the unitary executive; rather, it reflects the nature of the vice presidency as not being subsumed within the executive branch. 

[FN1] Comment on Heller would be particularly inappropriate in light of the fact that one of my bosses authored a brief in that case. On that point, now's as good a time as any to stress that nothing I have said or will say on this blog represents the views of my employer or my employer's clients. Indeed, only an utter moron would think that my firm would send a midlevel associate to be its spokesman on a blog. My thoughts are mine alone, for better or for worse.

Guns and Roberts

Dahlia and Akhil Amar just posted great pieces in Slate about D.C. v. Heller, the guns case to be argued on Tuesday at the Supreme Court. As lots of commentators have already said, this case is irresistible because the court will be writing on a practically blank slate: The relevant precedent is from 1939, and it didn't definitively hold that there's no individual right to bear arms in the Second Amendment, though the court certainly waved in that direction. As Dahlia points out, by staying out of the gun control fray, the court has been practicing a form of judicial restraint for the past 69 years. The big question now is whether it will stick to that path by issuing a decision that recognizes an individual right to bear arms but allows for a lot of gun control regulation, as Solicitor General Paul Clement is urging, or whether it will burn down a whole lot of gun laws in the wake of resurrecting the Second Amendment, as the brief that Vice President Cheney signed, and that David flags for us, would have it. (The court could also cling to the old interpretation of the Second Amendment as speaking only to having a gun for the purpose of serving in a state-run militia, but in light of the recent revisionist scholarship on the subject, I doubt it.) In any case, since this moment is a huge test for judicial restraint and modesty, isn't it also a huge test for Chief Justice John Roberts? Modesty was his mantra during his confirmation hearings. I've argued that he didn't deliver on that promise last term. Is Heller likely to be the big fat data point on this question from 2007-2008? I'm especially intrigued by the question since there's ostensibly a way to duck the looming constitutional question altogether, by treating D.C. as its own oddball scenario since it's not a state. Anyone think that's a likely resolution, or want to weigh in on the Clement v. Cheney face-off?