Bench Memos

NRO’s home for judicial news and analysis.

Where in the World is the Vice President?


Adam J. White, a young D.C. lawyer whose fine commentaries can be seen on occasion at The Weekly Standard’s site, writes to us about the Instapundit’s NYT article on the vice presidency:

After looking at Glenn Reynold’s op-ed on “unconstitutional delegation” of executive authority toe the VP, his longer law review article on the subject, and your astute post, I must confess that Reynolds completely befuddles me.  I don’t understand what “executive power” Reynolds thinks has been “exercised” by Vice Presidents Cheney or Gore. 

His NYT piece offers not a single clue on that point.  In his law review article, he begins by stating that the VP “executes no laws–and is not part of the President’s administration the way that other officials are,” but goes on to raise the specter that a President might improperly “delegate[] actual power and … not simply accept recommendations for action” — yet, again, he never actually spells out what this means. 

The most important problem with Reynolds’s analysis, however, is his misreading of the case law.  In the NYT he writes, “[t]he Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power,” and though he offers no specific example there, in his law review article he focuses on Bowsher v. Synar, a case involving a statute that assigned executive tasks to an agent of the legislative branch–the Comptroller General–who was wholly under Congress’s thumb.  That’s utterly incomparable to cases in which the President uses the Vice President as an advisor and contributor to the Administration process.  In the Bowsher situation, Congress (or a former Congress and President) encroaches upon a President’s power, purportedly under color of law.  In the “advisory” situation by contrast, there the President is voluntarily reaching out to the Vice President, subject to his own future change of mind.  In the latter context, there’s simply no risk of legislative abrogation of Presidential authority. 

Similarly, a President wouldn’t unlawfully delegate authority to the courts by listening to a Supreme Court Justice’s advice (see, e.g., LBJ and Fortas, or Adams and Marshall, or Washington and Jay).  Nor did Reagan “delegate” powers to the legislative branch when he listened to the advice of Sen. Paul “First Friend” Laxalt.  Nor would Congress “delegate” its authority to the courts by inviting the Justices to testify at a committee hearing.

It’s hard to tell whether Reynolds notices how ironic his proposed legislation is:  In order to prevent a legislative official (i.e., the Vice President), from taking on too much Executive power, and in the same vein as Bowsher’s protection against congressional encroachment upon the President, Reynolds would … have Congress tell the President who he can and can’t work with and listen to.  Talk about the cure being worse than the sickness!

Adam has his own article on this subject, much more sensible than Reynolds’, in the Legal Times (subscribers-only link here).


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