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November 12, 2007

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JohnF

I think a weakness in Reynolds' argument is found in this passage: "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."

That is probably a true statement if it is interpreted to mean, "isn't allowed to delegate executive power to a person acting in a legislative capacity," but not true if it is interpreted to mean, "isn't allowed to delegate executive authority to a person who, though a legislator, is not acting in his legislative capacity."

In other words, is it not possible for a single human (Cheney) to wear different legal hats when he is doing different things? If I appoint Harry Reid trustee of a trust for my children, is he acting as a legislator? No.

And, to use the first lady analogy from fn. 15, no one would argue that any of Hillary's wifely duties were implicated in her chairing the health care efforts of that administration.

Similarly, if Bush asks Cheney to supervise some executive branch employees, Cheney is not acting in his Chair-of-the-Senate capacity, so there is no violation of any separation of powers doctrine.

People can act in different legal capacities. They only get in trouble when they try to do both at the same time. I don't know that Cheney has.

Smitty

Are there any cases involving the separation of powers between any state lieutenant governor with similar state legislative powers and their executive roles? I'm not a lawyer, but I would imagine almost all states have a constitution that separates legislative and exective powers and many that define the role of lieutenant governor as having legislative duties (and some probably have constitutionally expressed executive duties too). Any legal folks out there know this answer?

John A. Frey

The difficulty with the Constitutional argument (setting aside the political and prudential arguments) is that the Constitution seems to be creating an office which is part of both the legislative and executive branches. I think it can be argued that this was not accidental.

The VP is entitled to vote in the legislature under a specified condition (i.e. to break a tie). That I think is enough to make him a legislative official.

But is he also an executive official?

You suggest that you know of no argument that the vesting clause imbues the VP with executive power--well, here's one: it imbues the VP with the power to assume the presidency when it becomes vacant. The automatic CONSTITUTIONAL power, without action by the legislature, judiciary or electorate.

Additionally, the "who can remove" issue does not necessarily lead to a conclusion that the VP is exclusively a legislative official. The removal of the VP is governed by the same clause as the removal of the Pres and other "civil Officers"--a clause in Article 2, the executive branch article.
This does not make the president and cabinet legislative officials.
It is a legislative check on the executive, and the VP is treated in this clause as any other executive branch official.

Separation of Powers in the Constitution can only be understood when considered in conjunction with the Constitution's checks and balances--indeed the checks and balances are in effect exceptions to the separation of powers--they are areas where the executive and legislative power overlap. The legislature cannot execute the laws, but they can decide who can execute the laws (or more accurately who cannot) through the advise and consent and impeachment powers; the president cannot legislate, but he can kill legislation. So the dual role of the VP is an exception to the separation of powers, not a violation of it.

Steven Lubet

Following his election as vice president in 1796, Thomas Jefferson wrote to James Madison regarding his role in the Adams administration:

"My letters inform me that Mr. Adams speaks of me with great friendship, and with satisfaction in the prospect of administering the government in concurrence with me . . . . If by that he meant [my participating in] the executive cabinet, both duty and inclination will shut that door. . . . The Constitution will know me only as a member of a legislative body."

Jefferson to Madison, January 22, 1797, quoted in Edward J. Larson, "A Magnificent Catastrophe" at 32.

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