Re: Is There An Eighth Grader In The House?

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Are they saying that the VP is part of the legislative branch because he's president of the senate?


Posted by: Rhiannon | Link to this comment | 06-22-07 12:26 PM
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one has to wonder if the attorneys for these clowns spend their days poring over the law books, trying to find new loopholes and gray areas for their masters to slither into.

actually, one doesn't have to wonder; that's probably exactly what their lawyers are doing.


Posted by: cleek | Link to this comment | 06-22-07 12:27 PM
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1 - Yep.


Posted by: Becks | Link to this comment | 06-22-07 12:31 PM
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That Globe article is just dripping with contempt. I mean, I more or less agree entirely with the tone, and even I'm wondering if they oughtn't tone it down a bit for a news article.


Posted by: Brock Landers | Link to this comment | 06-22-07 12:31 PM
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Also, you have to wonder how far ahead they're thinking, considering that there's constitutional debate over whether Senators are impeachable.


Posted by: Becks | Link to this comment | 06-22-07 12:33 PM
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1: Yeah, that's it. It's a little more sophisticated than that, if I understand the claim correctly (and I'm making guesses about exactly what claim is being made). If I'm right, the claim is that OVP straddles the Executive and Legislative branches, and so can't be regarded as 'within' the Executive branch as the executive order in question says, so OVP isn't covered by that order.

It's crap, but sophisticated crap.


Posted by: LizardBreath | Link to this comment | 06-22-07 12:33 PM
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The OVP is in the executive branch to the extent that being in the executive branch increases Cheney's power to do whatever the hell he wants. (For example, he can claim "executive privilege" & classify and declassify information when he wants to). To the extent that being in the executive branch would constrain his power, and would require him to give information to the national archives, executive branch directories, or anyone else, he's not in the executive branch.

They can throw in a lot of legalistic mumbo jumbo to make it sound sophisticated, but the underlying theory is "I get to do whatever the hell I want."


Posted by: Katherine | Link to this comment | 06-22-07 12:39 PM
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In a way, the sheer audacity of this claim is quite impressive.


Posted by: My Alter Ego | Link to this comment | 06-22-07 12:41 PM
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Well, when this administration has run its course we will certainly have defined or redefined some Constitutional powers. Makes me feel like we're living in the early 19th century. Hooray Marbury v. Madison.


Posted by: Tassled Loafered Leech | Link to this comment | 06-22-07 12:42 PM
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Dan Quayle set this all in motion with his greedy power grabs.


Posted by: will | Link to this comment | 06-22-07 12:43 PM
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Dan Quayle set this all in motion with his greedy power grabs.


It is all Murphy Brown's fault.


Posted by: Tassled Loafered Leech | Link to this comment | 06-22-07 12:44 PM
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Right, too clever by half- if he's not in the executive branch, there's no executive privilege, let's see all those documents. Surely the legislative branch can order itself to give itself documents.
Or maybe Cheney is claiming that the OVP is a quantum superposition of executive and legislative branch offices whose state is only fixed upon observation. If you observe with a subpoena, it becomes an executive office and has executive privilege. If you observe with an executive order concerning recordkeeping, it becomes a part of the legislative branch.


Posted by: SP | Link to this comment | 06-22-07 12:45 PM
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"Well, when this administration has run its course we will certainly have defined or redefined some Constitutional powers. Makes me feel like we're living in the early 19th century. Hooray Marbury v. Madison."

The absolute way to address this issue is to immediately announce that the Democrats want Hilary or Al Franken as the Vice President. For some reason, I'm thinking that people's perspectives on the lack of transparency will change.


Posted by: will | Link to this comment | 06-22-07 12:45 PM
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Perhaps if responsibility for certain functions were formally delegated by the president, then that would to that extent make the VP part of the executive branch, despite the constitutionally anomalous position. It's possible that much of the authority he exersizes has never been formalized, in fact I would expect that. People—Energy Executives for instance—are happy to go along with this, and meet privately with him, etc. I'd be interested in knowing whether this protection from rules and disclosure has been something they've made explicit to others, such as the Energy Execs, for a while already, really from the gitgo, or if they only recently came up with this line of reasoning.

We're a long way from "bucket of warm spit"


Posted by: I don't pay | Link to this comment | 06-22-07 12:49 PM
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6: I think the fuller claim (not expressed in the current exchange, but floating around the last couple years) is that, in addition to his role in the Legislative branch, the VP is not, constitutionally, subordinate to the President (can't be fired by him, or appointed by him except in unusual circumstances, etc.) and thus shouldn't be considered part of the branch headed by the Pres., etc.

Which I suppose has a veneer formal sophistication, but seriously.


Posted by: suds | Link to this comment | 06-22-07 12:51 PM
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Again, if I understand the claim correctly, it's not really a constitutional claim -- not that the executive order compelling disclosure constitutionally couldn't have compelled disclosure of OVP records if it had been worded properly, but that the executive order didn't successfully name the OVP as within its purview because 'within the executive branch' doesn't correctly describe the constitutional placement of the OVP.


Posted by: LizardBreath | Link to this comment | 06-22-07 12:52 PM
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12 is great. The quantum Vice Presidency.


Posted by: apostropher | Link to this comment | 06-22-07 12:52 PM
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Wouldn't it be fun if we got an Ammendment out of this? Much like Edith Wilson's "duties" leading to the 25th Ammendment.


Posted by: Tassled Loafered Leech | Link to this comment | 06-22-07 12:55 PM
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Or maybe Cheney is claiming that the OVP is a quantum superposition of executive and legislative branch offices whose state is only fixed upon observation. If you observe with a subpoena, it becomes an executive office and has executive privilege. If you observe with an executive order concerning recordkeeping, it becomes a part of the legislative branch.

Brilliant. We need to get the word out on the whole Quantum VP. People already assume the physics is nonsense, so they'll be pre-biased.


Posted by: SEK | Link to this comment | 06-22-07 1:03 PM
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"Makes me feel like we're living in the early 19th century. Hooray Marbury v. Madison."

both very funny and depressing.


Posted by: text | Link to this comment | 06-22-07 1:05 PM
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SP, awesome.


Posted by: mrh | Link to this comment | 06-22-07 1:26 PM
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I read somewhere in an earlier iteration of this story that the vast majority of the OVP is funded by the federal budget, with only a few legislative aides. If that's not executive, what is? But I suppose that's not a very constitutionally-based argument.

What it really seems like, imho, is that he wants to define himself outside of all sections of government and work in an unregulated, Constitutional black hole. It reminds me of how the German Presidency was left vacant from 1934 to 1945.

At least all his power is informal nevertheless.


Posted by: Minivet | Link to this comment | 06-22-07 1:26 PM
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19: Maybe that's why he's so damn secretive. Afraid if anyone observes him, it'll collapse the wave function.


Posted by: soubzriquet | Link to this comment | 06-22-07 1:28 PM
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Maybe Congress should rename the office from "Vice President" to "Prime Minister" to indicate the apparent state of affairs. "President" can stay as "President".


Posted by: Cryptic Ned | Link to this comment | 06-22-07 1:31 PM
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4: Brock. Your knee-jerk "let's be reasonable here"-ism is beginning to take over your brain. Cheney deserves whithering contempt.

This morning, discussing the news w/ my college buddies, we agreed that the "we won the midterms, we can do whatever we want" thing pretty much summed Cheney up in a nutshell. "I'm in power, fuck you."


Posted by: bitchphd | Link to this comment | 06-22-07 1:33 PM
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B -- whither your contempt?


Posted by: Clownaesthesiologist | Link to this comment | 06-22-07 1:39 PM
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B, Of course Cheney deserves "whithering" contempt. On the editorial page.


Posted by: Brock Landers | Link to this comment | 06-22-07 1:46 PM
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Article II, section 4: "The President, Vice President and all civil officers of the United States, shall be . . ."

Noscitur a sociis.

Also, sic semper tyrannis.


Posted by: rapoli | Link to this comment | 06-22-07 1:49 PM
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Being able to passively aggressively get your point across in neutral language is one of the joys of news reporting (& this article is quite mild--only the lede, really, comes close). If you're not even allowed to report facts in a way that strongly implies one side is full of it--are you supposed to actively go out of your way NOT to provide your readers with the relevant context?


Posted by: Katherine | Link to this comment | 06-22-07 2:00 PM
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I'm just asking for fairness and balance. I don't think Fox would have framed the story the same way.

(Okay, on re-reading it doesn't seem as aggressive to me as it first did. Were I editing I'd have cooled it off a bit further--the facts really do speak for themselves here, not need to use weighted language--but it's not all that bad, really.)


Posted by: Brock Landers | Link to this comment | 06-22-07 2:07 PM
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Here's how Fox News reports the story.


Posted by: Brock Landers | Link to this comment | 06-22-07 2:11 PM
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The Fox reoprting is just AP, though. But still, it strikes me as more fair.


Posted by: Brock Landers | Link to this comment | 06-22-07 2:12 PM
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Or maybe Cheney is claiming that the OVP is a quantum superposition of executive and legislative branch offices whose state is only fixed upon observation.

We could probably sort all this out by locking Cheney in a lead box with a lump of uranium and a phial of cyanide. (Cat optional.)


Posted by: Ubu Imperator | Link to this comment | 06-22-07 2:13 PM
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Of course, the "Schrödinger's VP" experiment then brings up another constitutional issue: since he is both alive and dead on a quantum level, does a new VP have to be appointed, or can Pelosi just slide on in?


Posted by: Ubu Imperator | Link to this comment | 06-22-07 2:15 PM
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32: No, it isn't. What made the Globe article look overheated is that straight reporting of the facts (which is pretty close to what the Globe article is) looks outrageous, because the facts are outrageous. The Fox article tones it down by opening not with the outrageous facts, but with the Democrat Congress's criticism of the VP -- misleadingly making the OVP's genuinely bizarre legal claim look secondary to just another political squabble.

Fox (or the AP, whichever) buried the lede to tone down the VP's conduct.


Posted by: LizardBreath | Link to this comment | 06-22-07 2:20 PM
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35: Hmm... I don't read it the same way, I guess. The AP text still comes across as pretty critical. (Or rather, doesn't shy away from reporting the facts, which are themselves fairly damning. I guess my point is that the text itself doesn't additionally come across as critical, on top of that. Which strikes me as the right approach.)


Posted by: Brock Landers | Link to this comment | 06-22-07 2:26 PM
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Orin Kerr at Volokh has it right.


Posted by: DonBoy | Link to this comment | 06-22-07 2:26 PM
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Minor griping: So I've got a junior associate doing some work for me. And I'm not expecting formal memos -- a stack of cases with tape flags would have been fine. But if you're going to write up your results, I'd like to see sentences starting with capital letters, and only one font used throughout.

Kids these days.


Posted by: LizardBreath | Link to this comment | 06-22-07 2:29 PM
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lol :)


Posted by: Matt F | Link to this comment | 06-22-07 2:30 PM
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Capitalist.


Posted by: Clownaesthesiologist | Link to this comment | 06-22-07 2:32 PM
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A junior associate, LB, or a summer associate? If the former that really seems not okay. If the latter, she was probably just still drunk from lunch when she wrote it, and that's perfectly fine.


Posted by: Brock Landers | Link to this comment | 06-22-07 2:35 PM
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Dude's a second year; I don't expect work product from summers.

Now, the screwy fonts are explained by cutting and pasting out of Westlaw, but man, fix that shit. It looks lame.


Posted by: LizardBreath | Link to this comment | 06-22-07 2:36 PM
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A second year?? Oh. Can you at least fire him?


Posted by: Brock Landers | Link to this comment | 06-22-07 2:38 PM
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Hey, I spend an insane amount of time fooling around on the Internet all day. Do you think I want to suggest to anyone that firing is a reasonable response to poor work performance? And he seems like a perfectly pleasant person; I'm just not going to ask him to proof anything unless I have enough time to ask him to do it three times.


Posted by: LizardBreath | Link to this comment | 06-22-07 2:42 PM
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Fooling around? I thought this got recorded as 'brainstorming'. That's a very important part of the process, you know.


Posted by: Brock Landers | Link to this comment | 06-22-07 2:46 PM
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Is that billable?


Posted by: SP | Link to this comment | 06-22-07 2:48 PM
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I'll wither you, boys.

31: "House Democrats Denounce Cheney's National Security Exemption" strikes you as more fair?? So the *real* story here is that Dems are griping about some kind of "national security exemption" that's attributed to Cheney as a matter of fact?

Look, when the VP declares himself *not part of the executive branch*, that is a contemptuous lie. Pretending otherwise isn't "objective" or "fair." It's propaganda.


Posted by: bitchphd | Link to this comment | 06-22-07 2:59 PM
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Not directly on topic, which is Cheney-bashing, but I have like the idea of the losing Presidential Candidate becoming the Vice-President and President of the Senate, e.g., Edwards would have that job now. Of course, I think the Electors could do that now.

The President of the Senate has only the official power to break ties, but the Senate does make its own internal rules, so theoretically the position could be more powerful, committee assignments and what comes to the floor. I would codify such power in a new Amendment.

I am not sure what the Founders had in mind (the original system lasted what, 3 elections?), but that a near-equal opposition political power was elected simultaneously with a President seems like a better idea than a Parliamentary system. VP Edwards could have stopped the Patriot Act and MCA, VP Gore stopped the Iraq authorization.

In that system the OVP would be more a part of the Legislative than Executive, and the Senate could be more fully briefed on Executive actions.


Posted by: bob mcmanus | Link to this comment | 06-22-07 3:15 PM
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31:okay, dammit, I have to go check the Constitution. I would guess that Adams, and Burr or Hamilton did feel themselves part of the Legislative rather than Executive. I am just not sure that wasn't amended away.


Posted by: bob mcmanus | Link to this comment | 06-22-07 3:19 PM
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Twelfth Amendment

Not really amended away, just a technical change to make the opposing party thing less likely. Not impossible, electors are not tightly bound. My gut feeling is the the VP is more in the Legislative, where he has a specified duty, than the Executive.

Fuck the Imperial Presidency, and both the Parties that love a King.


Posted by: bob mcmanus | Link to this comment | 06-22-07 3:28 PM
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14: "A pitcher of warm piss," actually, is what Garner said. The tender media sensibilities of the day altered it for family use.

(Readin' the new bio of FDR, & he has a footnote on that.)


Posted by: Anderson | Link to this comment | 06-22-07 3:30 PM
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Last one:Even the 12th Amendment separate & distinct ballots for Pres and VP, which strongly implies that the VP is not the Pres's buttboy. I am certain the Founders did have a purpose of counter-vailing power for the Office of VP, and the argument that the VP has to be a flunky, so the King can have a sympathetic successor and a Representative in the Senate is not merely wrong, but offensive.


Posted by: bob mcmanus | Link to this comment | 06-22-07 3:35 PM
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"Separate and distinct ballots"

Having thought it over while cooking dinner, I have decided that Cheney is absolutely and completely correct. The OVP is both in the Legislative and Executive, yet in neither; not subject to Executive Orders nor Legislative Supoenas (Executive Privilege). Yes, a Quantum VP. Show me the clause, Becks, I am stupider than an 8th-grader.

And I am ok with that. The problem is not with that interpretation, but the prevailing wisdom and Cheney as VP has actually done stuff. Whatever Cheney has done, he has done as agent of the President with Congressional funding. He has only such unofficial power as the other branches allow.

And that is the key. Since the Vice-President has only one minimal power, I do not see why he requires accountability or oversight, anymore than I do.

The country for seven fucking years has misplaced responsibility onto a bucket of warm spit. It's Bush, you idiots, Cheney is nothing.


Posted by: bob mcmanus | Link to this comment | 06-22-07 4:33 PM
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Dick Cheney

"Why isn't Bart correct when he says that the VP is under no duty to take orders from the President. It would, to be sure, be a major political crisis if the VP declared his/her independence--after all, wasn't that the case with John C. Calhoun and Andres Jackson--but was it a "constitutioal crisis." And so long as Congress appropriates funds to something called the Office of the VP, then I'm not sure why (s)he can't convene meetings on any topic at all.

So doesn't this further illustrate the dysfunctionaity of having a separate VP serving a fixed term who in no plausible sense is elected by the people to pursue his/her own policy goals, etc.?

The only real solution to the Cheney problem (projecting into the future)is to eliminate the office, which more and more is revealed to serve no truly useful purpose." ...Sandy Levinsonin comments at Balkinization, another one stupider than an 8th grader.

Although I don't get the "in no plausible sense elected". Seems to me there were electors etc.


Posted by: bob mcmanus | Link to this comment | 06-22-07 5:03 PM
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Bob is right. If Cheney wasn't the Vice President but merely the director of the Cheney Group, a secretive lobbying shop, he might have exactly the power he does now. Bush gave him whatever power he has.


Posted by: Cryptic Ned | Link to this comment | 06-22-07 5:07 PM
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Well, you don't really get to split the ticket. Yeah, yeah, write-in, whatever, but the reality is that the system is designed to facilitate a defacto-unelected VP.

Imagine someone running for VP without a P. Just, "I'm Bob, and you should vote for me for Veep. You can vote for either of those other two fellas for Pres, but I'm your man for Veep."

Theater of the Absurd is not, actually, the basis of our government. A description, yes, but not the premise.


Posted by: JRoth | Link to this comment | 06-22-07 5:11 PM
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56: That happens in a lot of states for Governor and Lieutenant Governor. In Texas they have a point, because those jobs have very different responsibilities, but here in PA the Lieutenant Governor does nothing at all except annoy people at funerals unless she has to become the governor. It seems like if the LtGov is a purely ceremonial office, and yet it's a separately elected office (she was Rendell's choice, but had to run individually), we should get more interesting choices (Harry Kalas, Jim Furyk, Matthew Lesko, Carlton Haselrig), instead of nepotistic nonentities.


Posted by: Cryptic Ned | Link to this comment | 06-22-07 5:30 PM
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mcmanus and Dick Cheney agree? Holy shit. I'd better head to Mass tonight.


Posted by: Brock Landers | Link to this comment | 06-22-07 5:50 PM
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56:You do not vote for President or Vice-President. You vote for Electors. I don't quite remember if the ballot shows different electors, or if a citizen does vote for each office separately, but the electors are required to have two separate votes. A elector is a unbound representative.

56:I think it is more complicated than that. If Bush were to ask me to go negotiate a ME settlement, I think at that point I become a representative of the President, subject to congressional oversight, paid or unpaid.

But Cheney can set up an office in the Pentagon. He doesn't need the President's permission, altho Rumsfeld would have to okay it. Congress would have to pay salaries somehow. If you ask Cheney if he set up the Office at the President's request, he can say "None of your business" or "No, I did it on my own, with Rumsfeld's permission" He has whatever power he can grab, which isn't real power, a General or the CIA can just tell him to fuck off.

But they didn't, because of the presumption that Cheney is part of the Executive Branch and acting on behest of the President.

Ya know, when Bush ran the Rangers here in Texas, everything good was to his credit, and everything bad was Tom Grieve's fault. Bush, being a Bush, knows deniabilty, cut-outs, and fall-guys like I know my left nipple. I have been really fucking pissed that people like Steve Clemons & hilzoy think Rumsfeld and Cheney were independent agents, rogue actors in a vacumn of leadership. That is not what is going on. Bush is fucking brilliant, and as evil as Tiberius sending Sejanus off to slaughter while playing fishy with the little kids in Capri.


Posted by: bob mcmanus | Link to this comment | 06-22-07 6:24 PM
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Better watch out, Bob. There was a writer in England once who was accused of treason for nothing more than comparing one of the king's men to Sejanus. (Because, by implication, that equated the king with Tiberius.)


Posted by: y | Link to this comment | 06-22-07 6:32 PM
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Geez. Cheney's lie isn't hard to unravel. He is an executive officer who serves a specific legislative function in addition to his executive duties. Military attaches don't become civilians when assigned to civilian offices, the Chief Justice doesn't become an executive officer when swearing in the new president, and Cheney doesn't get out of the executive because of his one legislative duty. The officiator at a wedding doesn't displace either the bride or groom, either.


Posted by: Bruce Baugh | Link to this comment | 06-23-07 1:28 AM
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Edwards would have that job now

I think Kerry would.


Posted by: Clownaesthesiologist | Link to this comment | 06-23-07 4:34 AM
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62:My mistake

61:I do not have my brief written at this time. However, movieguy has done a decent job over in comments over at AngryBear:Executive Branch

Everyone keeps asking if the VP is part of the executive branch. Yes, the VP is a co-equal independent officer of the Executive Branch. He has his own Executive privilege, not as an extension of the President's.

Movieguy also notes, among many other things, that the VP should preside over the Senate. As I said above, if actually exercised, under Robert's Rules this could give the VP quite a bit of power.

Movieguy also notes that an unsplit vote for President and VP is probably unconstitutional. They are utterly separate offices.

It is the Imperial Presidency, starting with George Washington, that has buried the true role of the VP.


Posted by: bob mcmanus | Link to this comment | 06-23-07 8:02 AM
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Umm, somewhat funny, someone at Angry Bear noted that the 22nd Amendment does not designate term limits for Vice-President.


Posted by: bob mcmanus | Link to this comment | 06-23-07 8:09 AM
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Oh, and I forgot, Movieguy provides links, including a history of the vice-presidency.

Sometimes I am, ahem, astonished by the lawyers and scholars I meet on the nets.


Posted by: bob mcmanus | Link to this comment | 06-23-07 8:11 AM
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I've always assumed that Cheney will be the running mate for whoever gets the Republican nomination in 08.


Posted by: Adam Kotsko | Link to this comment | 06-23-07 9:10 AM
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> Maybe Congress should rename the office from "Vice President" to "Prime Minister"

Considering the actions of the current occupant of the Naval Observatory (and the Sekrit Bunker beneath it), I think that a more appropos title might be "Darth".


Posted by: joel hanes | Link to this comment | 06-23-07 9:18 AM
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12, my copyright lawyer will be in touch.


Posted by: Alex | Link to this comment | 06-24-07 5:25 AM
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