Bench Memos

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I suppose one should never pick a fight with a man who buys pixels by the barrel.  But blogger extraordinaire, the Instapundit, Glenn Harlan Reynolds, has a short op-ed at the New York Times today that displays one of the signal failings of politico-legal argumentation today: the promiscuous pronouncement that things that bother us are “unconstitutional.”  His argument is that inasmuch as the vice presidency is, under the Constitution, an office with legislative responsibilities only (with executive duties being taken on only if and when the president cannot perform them), therefore “the exercise of executive power by the vice president raises important constitutional questions related to the separation of powers.”  It might raise some constitutional questions, but I would hardly call them important–more like the minutiae that occupy law students in the wee hours when they should be studying for exams but get distracted.  But in a flash, Reynolds moves from “raises . . . constitutional questions” to asserting that much of what recent vice presidents have done in their running mates’ administrations is “unconstitutional.”

On his blog, Reynolds has a link to a longer version of the argument that he published in a law review last year, but his NYT piece’s argument is so poorly made it makes me tired just to think of reading the longer article.  Really, when a fellow starts to go on about political behavior violating the Constitution, he ought to be able to identify an actual principle we can infer from its text, even when he has only 450 words in a newspaper.  The best that Reynolds does here is this: “The Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power.”  That won’t really do.  Every such “occasion” that I can think of concerned “legislative officials” who answer to the Congress because they are its agents and creatures.  Not so the vice president.

Reynolds would like Congress to “pass a law to prohibit the vice president from exercising executive power.”  Is there any real executive power the vice president “exercises” now that is not simply an informal delegation from the president?  Such a law would be a prohibita in search of a mala.  It would be like Elmer Fudd firing his shotgun down all those holes in the ground while Bugs Bunny pulls faces right behind his back.


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