The Volokh Conspiracy
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The Anti-Textualist Decision Finding VP Covered by Speech or Debate Clause
"The Court declines to be the first in generations to force a literal reading of the Clause's text."
In February, there was a flurry of debate about whether the Vice President is covered by the Speech or Debate Clause. Recall that the text expressly applies to "Senators and Representatives." As a textualist matter, the Vice President is not a "Senator" or "Representative." Thus, he would not be covered. Alas, many of the precedents interpreting this provision were set in an era where textualism was subordinate to flexible, purposivist analyses. For example, Gravel v. United States (1972), per Justice White, includes this line:
It is true that the Clause itself mentions only 'Senators and Representatives,' but prior cases have plainly not taken a literalistic approach in applying the privilege.
In February,"I would hope[d] that the Scaliafied judiciary takes a literal approach to the Constitution." Judge Boasberg of the District Court for the District of Columbia declined, and found that Vice President Pence received some protections under the Speech or Debate Clause for his role on January 6.
Zoe Tillman obtained a redacted version Judge Boasberg's opinion. The court followed what it calls a "functionalist" analysis that focuses on the specific roles the Vice President plays during the vote-counting process. And, the court found, that these roles falls "beneath the legislative umbrella."
But what about the text of the Constitution--you know, the actual Supreme Law of the Land? It's often said that the text of the Constitution resolves few actual questions. I disagree with that shibboleth, but the textual argument here is really simple. The Vice President, whatever his "hybrid" status, is not a Senator or Representative. Yet, Towards the end of the analysis, Judge Boasberg dispatches the textualist argument in a few sentences:
The Government also contends that, textually, the Vice President is not a "Senator or Representative" within the meaning of the Clause. It concedes that Gravel has extended the Clause beyond its text to reach Members' staff because such staff act as the "agent or assistant of a sitting Senator," but it argues that because the Vice President is not such an agent, the Clause does not cover him. Gravel was not so limited. The Clause has subsequently been read to cover all manner of legislative actors, including those who work for committees or for the chamber as a whole. See, e.g., Eastland, 421 U.S. at 507. The Court declines to be the first in generations to force a literal reading of the Clause's text.
I appreciate Judge Boasberg's candor. He declines to follow the text of the Constitution, but instead follows Supreme Court precedent that disregards that text. Or, to be more precise, he extends Supreme Court precedent that disregards the text of the Constitution.
There was another way. I have written how lower-court judges can be originalist. In a case of first impression, lower court judges should decline to extend non-originalist precedents to new contexts. Here, there was no decision of the Supreme Court squarely holding that the Vice President is covered by the Speech or Debate Clause. And precedents following a "functionalist" approach to the Speech or Debate Clause are flatly inconsistent with constitutional text. Therefore, a judge, faithful to his constitutional oath, could decline to extend those precedents to the case of first impression.
Alas, Judge Boasberg did not take this path. And this decision was not appealed, so I do not think there will be a chance for appellate review. As a practical matter, this precedent will likely be followed by future Vice Presidents, who seek Speech-or-Debate protection in other contexts. Thus, courts will continue extending precedents that cannot possibly be squared with text. The perpetuation of anti-textualist decisions will proliferate.
