Boy, Talk About More Of the SAME!

[Brassmask]

http://thinkprogress.org/2008/09/19/palin-executive-branch/

Palin Refuses To Say Whether She Would Be Part Of Executive Branch

When Sarah Palin was announced as John McCain’s running mate, President Bush said that she “had the executive appearance and that’s what it takes to be a capable person…in the executive branch.” But like Bush’s own vice president, it’s not clear that Palin would consider herself to be part of the executive branch.

The Hill reports that it inquired with both Joseph Biden and Sarah Palin about whether they would consider themselves to be part of the executive branch in the next administration. The Hill’s Kevin Bogardus reports, “Sen. Biden (Del.) believes the office he is seeking is solely in the executive branch, according to his staff. But aides to Alaska Gov. Palin did not answer the question”:

    [A] spokesman for the Republican presidential campaign did not answer the question. Instead, he e-mailed remarks Palin gave at a campaign rally in Golden, Colo., on Monday.

    Palin did not say what branch of government she believes the vice president’s office is part of in those remarks. Instead, Palin said she and Republican presidential nominee John McCain had discussed what responsibilities she would take on as his second-in-command.

Dick Cheney, and his chief aide David Addington, have repeatedly tried to argue that the vice president is not part of the executive branch. Cheney, who has referred to his office as “a unique creature,” has tried to exempt himself from a presidential executive order designed to safeguard classified national security information.

Already, Palin’s handling the “Troopergate” probe has demonstrated a striking resemblance to Cheney’s penchant for secrecy. Palin is thwarting both a state legislature probe and a state Personnel Board investigation into the ethics scandal. Like the Bush White House, she is claiming “executive privilege” on e-mails from personal accounts. And just yesterday, her husband Todd Palin — following in the footsteps of Harriet Miers and Josh Bolten — said thanks but no thanks to a subpoena demanding he appear before the state Senate Judiciary Committee.
When Sarah Palin was announced as John McCain’s running mate, President Bush said that she “had the executive appearance and that’s what it takes to be a capable person…in the executive branch.” But like Bush’s own vice president, it’s not clear that Palin would consider herself to be part of the executive branch.

The Hill reports that it inquired with both Joseph Biden and Sarah Palin about whether they would consider themselves to be part of the executive branch in the next administration. The Hill’s Kevin Bogardus reports, “Sen. Biden (Del.) believes the office he is seeking is solely in the executive branch, according to his staff. But aides to Alaska Gov. Palin did not answer the question”:

    [A] spokesman for the Republican presidential campaign did not answer the question. Instead, he e-mailed remarks Palin gave at a campaign rally in Golden, Colo., on Monday.

    Palin did not say what branch of government she believes the vice president’s office is part of in those remarks. Instead, Palin said she and Republican presidential nominee John McCain had discussed what responsibilities she would take on as his second-in-command.

Dick Cheney, and his chief aide David Addington, have repeatedly tried to argue that the vice president is not part of the executive branch. Cheney, who has referred to his office as “a unique creature,” has tried to exempt himself from a presidential executive order designed to safeguard classified national security information.

Already, Palin’s handling the “Troopergate” probe has demonstrated a striking resemblance to Cheney’s penchant for secrecy. Palin is thwarting both a state legislature probe and a state Personnel Board investigation into the ethics scandal. Like the Bush White House, she is claiming “executive privilege” on e-mails from personal accounts. And just yesterday, her husband Todd Palin — following in the footsteps of Harriet Miers and Josh Bolten — said thanks but no thanks to a subpoena demanding he appear before the state Senate Judiciary Committee.

[BT]

Time for a constitutional quiz.

What branch do you think the VP belongs in?

[Plane]

Time for a constitutional quiz.

What branch do you think the VP belongs in?

The only power officially held is a tiebreaking vote in the Senate.

That is a legislative function.

[Brassmask]

Time for a constitutional quiz.

What branch do you think the VP belongs in?

Regardless of what Plane is trying to claim, clearly, the VP is part of the executive branch.  The VP does have the tie-breaking vote but he does so at the behest of the president.

The US Government's own website says so.

http://www.usa.gov/Agencies/Federal/Executive.shtml

Executive Office of the President

    * The President
    * The Vice President
    * The White House Home Page
    * Offices within the Executive Office of the President
    * The President's Cabinet

Stop being dicks.

[BT]

Is the VP a Legislative Official, an Executive Official, or both?
Mike Rappaport

Glenn Reynolds analyzes this issue here.  And quite well, except that I question his last move and his conclusion.

Reynolds argues:

    The argument that the Vice President is a legislative official isn't inherently absurd. [My note: It is actually correct, so obviously not absurd].  The Constitution gives the Vice President no executive powers: The VP's only duties are to preside over the Senate, and to become President if the serving President dies or leaves office. The Vice President really isn't an Executive official, and isn't part of the President's administration the way that other officials are.

    Whatever executive power a VP exercises is exercised because it's delegated by the President, not because the VP has it already. So to the extent the President delegates actual power (as opposed to just taking recommendations for action) the VP is exercising executive authority delegated by the President.  [And Glenn is right about this subtle point.]

    However -- and here's where the claim that Cheney is really a legislative official creates problems for the White House -- it seems pretty clear that the President isn't allowed to delegate executive power to a legislative official, as that would be a separation of powers violation.

Yes, it is the italicized portion that is questionable.  It sounds correct that the President can't delegate executive power to a legislative official.  But why not?  Well, the President can't delegate executive power to a member of Congress.  That is true, but that is probably for two reasons.  First, there is a specific clause which says that a member of Congress cannot also serve at the same time as an officer of the United States (which involves the exercise of either executive or judicial power).  But that prohibition does not apply to the Vice President, only to members of Congress, which the VP is not.  Second, the Constitution vests legislative power in the Congress of the United States, but the VP is not a member of Congress.  It sounds strange that he is the President of the Senate, but not a member of Congress, but the Constitution is pretty clear on this.

So, can the President delegate executive power to the Vice President?  It seems that he can, unless there is some implicit prohibition on delegating executive power to someone who has a legislative office.  And I don't necessarily find such a limit in the Constitution.  It seems clear that the President could delegate executive power to a judge without infringing on a constitutional limitation.  Indeed, judges have performed all kinds of executive functions throughout history, starting with Chief Justice Jay negotiation the Jay Treaty.

In fact, Glenn's argument is more far reaching than one might at first think.  If he is right, then Presidents cannot delegate power to VPs, but they appear to have done this regularly in the last generation.  It would make this modern practice unconstitutional.  Of course, this is not an argument against Glenn's reading -- lots of modern practices are unconstitutional.  But it would be significant.

Of course, Glenn's final point is that it was politically stupid for the Bush Administration to take this position.  Well, that may be, but if it is true, that is because there are a lot of ignorant people out there.

http://rightcoast.typepad.com/rightcoast/2007/06/is-the-vp-a-leg.html