Dozens of Constitutional Law professors’ heads just exploded. (Hat tip: Andrew Sullivan.)
UPDATE: Here’s the exact quote: “The [House] Oversight Committee has learned that over the objections of the National Archives, you exempted the Office of the Vice President from the presidential executive order that establishes a uniform, government-wide system for safeguarding classified national security information. … The National Archives has informed the Committee that your office intervened to block the inspection. According to a letter that the National Archives sent to your staff in June 2006, you asserted that the Office of the Vice President is not an ‘entity within the executive branch’ and hence is not subject to presidential executive orders.”
(Hat tip: Think Progress, via Ana Marie Cox’s Swampland, via Technorati.)
UPDATE 2: Here’s the letter from the National Archives to Cheney’s office, which the Oversight Committee (specifically, chairman Henry Waxman) is quoting from. Assuming the director of the National Archives, J. William Leonard, is accurately characterizing the position of Cheney and his aides, it appears their theory is based on the fact that the Office of the Vice President “has both legislative and executive functions.” That’s true, in that the VP is also the President of the Senate, but I think it’s fairly obvious that he’s an executive-branch official with certain legislative functions, not the other way around (which would be unconstitutional anyway), and certainly not neither; he can’t be neither. He’s not his own branch of government, for heaven’s sake.
UPDATE 3: The Democrats respond.
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Categories: Elections & Politics (U.S.)
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June 21st, 2007 at 10:17:48 pm
Raise your hand if your surprised Cheney thinks he’s above the law….nothing, no one? Yeah thats what I thought.
June 21st, 2007 at 10:53:13 pm
What is going on here? I’m no law expert, but come one. He can’t legislate laws (unless there is a tie in the Senate), so he obviously isn’t there. He has never been confirmed as a judge (legally anyway). And now he isn’t part of the Executive Branch?
Maybe he isn’t actually part of the government, but stayed at a Holiday Inn Express last night.
June 21st, 2007 at 11:14:47 pm
I’m surprised at you guys.
We’ve all known since 9-11-2001, that the Vice -Presidents office is in a secret, undisclosed location …in another dimension.
June 22nd, 2007 at 12:34:40 am
All fun aside, before everyone completely melts down, I would be interested in seeing how the Vice-President plans to support this argument.
June 22nd, 2007 at 1:46:09 am
All fun aside, before everyone completely melts down, I would be interested in seeing how the Vice-President plans to support this argument.
Something involving defending freedom, with us or against us, he’s protecting us from bin Ladin, USA USA USA, etc etc.
June 22nd, 2007 at 1:47:41 am
But seriously, whats it gonna take for the GOPers to get that this guy thinks he is above the law? I mean does he have to go and shoot someone and get away with it before they’ll ….oh….wait…
June 22nd, 2007 at 1:50:30 am
As Orin Kerr observes, this story almost could have come from The Onion.
I’ll be watching The Volokh Conspiracy on this one. If there’s an honest defense to be made, they’ll make it. (As opposed to dishonest defenses, which I’m sure will be made elsewhere.)
June 22nd, 2007 at 2:19:51 am
This will go down in history as a “read my lips”-”I did not have sexual relations with that woman”-Watergate-ohhhhh crap moment.
June 22nd, 2007 at 7:01:27 am
Agreed re: Volokh, Aaron.
June 22nd, 2007 at 8:50:03 am
All these little precedents that the Republicans — especially those in the executive branch (and despite the current issue, I count Cheney here) — are really going to come back and bite them in the ass someday. Shit like this just invites retaliation — which is unfortunate, but it’s definitely true.
June 22nd, 2007 at 9:11:28 am
The problem with shirking oversight is not just that it paves the way for immoral and illegal acts. It’s that it paves the way for failed policy decisions, since the way to get things right in a democracy is to have your own policy scrutinized, and without scrutiny you end up with failed policy.
I don’t really expect Cheney to care about the illegality aspect anymore, but it’s about damn time that he starts caring about the failed policy aspect. Otherwise, God help us all.
June 22nd, 2007 at 9:14:10 am
New government org chart
June 22nd, 2007 at 9:42:21 am
If this were true, doesn’t that mean Cheney had no right to out Valerie Plame or order the shoot-down of planes on 9/11?
June 22nd, 2007 at 10:59:07 am
Wait, huh?
How does this make any sense? Making the Veep the magic untoucable man of our government was probably not the intent of our founders.
Can we impeach him? Seriously . . . if some nut assainates the President, Cheney starts running the show, and I really don’t want that to happen. If he can make the argument that he isn’t part of the executive branch with a straight face, I don’t want to see what happens when he runs the place.
June 22nd, 2007 at 11:29:45 am
The VP can be impeached. You just have to find “high crimes and misdemeanors” that will stick.
June 22nd, 2007 at 11:31:14 am
As I said before, Cheney says he isn’t subject to presidential executive orders, yet Cheney has claimed a presidential executive order gave him the clearance to de-classify Valerie Plame. By his own admission, he has committed a crime.
June 22nd, 2007 at 2:48:31 pm
Guys - either the VP is part of the Legislative Branch - with his Senate duties - or he is not …
If he is part of the Executive Branch before he becomes President (if he does), what are his Executive Branch duties ?
We *know* about his Legislative Branch duties - I, for one, freely admit that I don’t know *what* the VP does that is actually Executive Branch until he becomes President (if he does) …
If he is part of the Legislative Branch, then how does one separate the known Legislative aspects from the as-yet-undefined Executive aspects ?
I was discussing this with a friend yesterday, and I suggested that all that is needed is for the folk issuing the subpoena to rule that they can subpoena anything they want from anyone in the Legislative Branch, and then they have the VP covered …
Now, before the D-list goes ballistic, notice that none of the above is a defence of anyone - it is a question about the reality of the VP …
June 22nd, 2007 at 3:27:01 pm
Wow. I can’t believe this story has gotten so much play over a misattributed quote.
Based on all the reading I have just done, including all the letters linked in this post and in the posts to which Brendan links, the Vice President has NOT — repeat, he has NOT — claimed that his office is not an entity within the executive branch.
Rather, it appears that he is claiming that his office is an entity within BOTH the executive AND the legislative branches, and THEREFORE falls outside the definition of “agency” to which the Executive Order applies.
The quote that Brendan has put in bold does NOT come from any letter written by Cheney or his office. It’s from the Executive Order itself, and moreover, was quoted by Leonard in his initial letter to the OVP. IN that letter, Leonard referred to a quote in a news article from an OVP spokesperson who claimed that the exec order does not apply to the OVP because the OVP has both legislative and executive functions. Leonard says he took that quote to mean that the OVP was claiming not to be “an entity within the executive branch” — and that comes direct from the Exec Order, specifically Sec. 1.1(i) (see http://nsi.org/Library/Govt/ExecOrder12958.html ).
Here is the section from the Exec Order, in full — a definition section:
“(i) “Agency” means any “Executive agency,” as defined in 5 U.S.C. 105, and any other entity within the executive branch that comes into the possession of classified information. ”
Now, presumably, OVP is not listed in 5 USC 105, which is why the focus is on the other phrase. In any event, it seems clear to me that the quote from the news article last summer is attempting to suggest that because OVP has both legislative and executive functions, it is not an entity within the executive branch — it also exists without, i.e. outside the executive branch, as well.
This does not mean OVP is not part of the executive. It means that OVP is both.
Now, whether that is enough to remove OVP from this definition clause is an entirely separate question, and it depends on what the meaning of “within” is.
But it’s not creating a fourth branch of government named Dick Cheney, and all this breathless “reporting” to the contrary simply further reveals the significance of the detachment from reality from which such administration critics suffer.
Unrelatedly:
“I think it’s fairly obvious that he’s an executive-branch official with certain legislative functions, not the other way around (which would be unconstitutional anyway)”
Why do you think a “legislative-branch official with certain executive functions” would be unconsitutional, while an “executive-branch official with certain legislative functions” would be a-ok? Granted, I’ve not gone back to look at my Admin Law notes or outline, and I’m getting some vague Mistretta/Bowsher flashbacks right now, but at the very least, it strikes me as odd that you find Proposition A/B as hunky dory but the equivalent Proposition B/A as obviously wrong. Seems to me that if we’re going to take separation of powers seriously, both A/B and B/A violate it. Of course, when we’re talking about the VP, the Constitution itself places him in both branches, so that’s an exception to prove the rule . . . which in turn suggests that this “controversy” is not so outrageous after all. The office is in a rather unique position (admittedly probably because, as somebody somewhere noted, the framers just didn’t think about it all that much).
June 22nd, 2007 at 3:40:08 pm
You could argue that President Bush is a member of the executive-branch (I hope) but also has legislative duties, given all of the executive orders, invasions, etc. that are basically Congressional bypasses (not that other presidents haven’t done similar actions, but no one puts Bush in a category other than executive). Also, Cheney may have a role in the Senate, but he succeeds the President. Sure, you could sit there and argue that he’s both, but to do so would be a suspiciously sneaky way of avoiding some pretty standard “safeguarding” of “security information.”
Seriously, why not comply if there’s nothing to hide? That’s the reason for the airtime. It’s suspicious, especially given the problems with Libby and everything else this administration or quasi-legislature has mucked up.
June 22nd, 2007 at 6:17:17 pm
Brian’s post is a little huffy, but he points out something important — Cheney’s office isn’t claiming it’s not part of the executive branch, but rather that it’s not an executive agency (or, really, part of the “fourth branch” — the administrative branch). I don’t know that the balance of executive and legislative functions in the office of the vice president bears much relevance to administrative law per se (though those of us who studied admin law with The Famous Bill Kelley know that admin law has lots to do with the seperation of powers in general) but the fact remains that an executive agency by defintion is created by an organic act passed by Congress. The Office of the Vice President did not originate with an organic act and so it ain’t an executive agency.
I don’t think it can credibly be argued that the OVP exists outside the executive branch, however. It’s quite clearly an executive office — akin in relationship to the Office of Management and Budget or the Office of Personnel Management (but obviously with a radically different function).
The problem, as it so often is with executive agencies, is that they’re using the wrong damn law to try to get what they need. Oops.
June 22nd, 2007 at 6:33:50 pm
OK Alasdair, if thats true and he isn’t held to this law, then his previous defences of being protected by executive orders no longer holds and he broke those laws instead. He doesn’t get to be a member of the executive branch when its convenient and not a member when its not convenient. See some of us still believe in the rule of law and that our leaders aren’t supposed to be above it.
June 22nd, 2007 at 7:02:08 pm
Gentlefolk - for the benefit of us poor beknighted Brits, can someone explain in what specifics the VP has Executive Branch functions ?
What does the VP, any VP, do while VP that is Executive Branch ?
June 22nd, 2007 at 7:05:16 pm
Alasdair, the VP has very few constitutionally or statutorily designated official duties other than being President of the Senate and sitting around waiting for the President to die. :) However, recent presidents have increasingly given their VPs a good deal of power by making them trusted advisers, putting them in charge of various areas of policy, etc. As recently as JFK/LBJ, if not later, the vice presidency was regarded as a pretty crappy job. But veeps have become quite important recently. My impression is that Dick Cheney and Al Gore are the two most powerful vice presidents in this history of the country.
June 22nd, 2007 at 7:21:27 pm
The role of Vice President has certainly grown over the years. I would actually argue that George H.W. Bush was probably the most powerful VP in history. I’m not one of those liberals who thinks Reagan was functionally illiterate or whatever, but I think he was mostly the face of an enormous amount of below-the-surface work being done by his VP. Certainly Clinton and Bush (Clinton in particular) have greatly expanded the public role of the VP.
It seems to me that the ill-defined nature of the vice president’s office could be a ticking time bomb — imagine what could be directed out of that office and never come to light.
June 22nd, 2007 at 7:25:09 pm
Good point. I think I read an analysis somewhere arguing that Cheney and Gore were the top two, but Bush was certainly a biggie too. Perhaps Cheney would have surpassed him if not for the recent scandals and the unpopularity of the Iraq War, which seem to have diminished his influence significantly in the second term.
June 22nd, 2007 at 7:59:30 pm
I thought Cheney was a part of the Fourth Reich, not the Fourth Branch.
June 22nd, 2007 at 8:03:15 pm
He’s in both. Or whichever one shields him from whatever would be inconvenient at the moment.
June 23rd, 2007 at 12:29:13 am
I thought Cheney was a part of the Fourth Reich, not the Fourth Branch
And therein lies the evidence why one cannot debate with a D-Lister. Their argument invariable leads to someone being affiliated with the Nazis. It’s too bad really.
June 23rd, 2007 at 1:27:27 am
Yes, Anonymooose, we all hate jokes. Especially when it comes to something as sacred as politics.
June 23rd, 2007 at 2:39:23 am
And therein lies the evidence why one cannot debate with a D-Lister. Their argument invariable leads to someone being affiliated with the Nazis. It’s too bad really.
The fact that you’d rather focus on a joke than the Vice President claiming to be above the law (when convenient) shows why one cannot debate a Bush loyalist like yourself.
June 23rd, 2007 at 3:13:47 am
I didn’t know there was a debate going on, or else I wouldn’t have made that joke. What’s the topic? Whether or not the Vice President is part of the Executive branch or not? 10th grade was a long time ago for me, but I do remember learning that it’s part of the executive.
Now back to a debate that isn’t quite so simple: Santa Claus– Man or Myth?!?!?
June 23rd, 2007 at 3:52:02 am
Now back to a debate that isn’t quite so simple: Santa Claus– Man or Myth?!?!?
Math
June 25th, 2007 at 12:04:35 pm
So apparantly, Cheney would preside over his own impeachment trial, since all impeachment trials other than the President’s are judged by the Veep, according to the Constitution.
Interesting and weird. That’ll need to be changed.
June 25th, 2007 at 6:06:27 pm
Sandy Underpants
I still have yet to have *anyone* able to answer that one simple question …
What does the VP, any VP, do while VP that is Executive Branch ?
It shouldn’t be so hard to get an answer … I haven’t been able to find anything, in my own researches … and I *have* found that, generally, the more BDS the person, the more absolutely convinced that person tends to be that the VP is ONLY Executive Branch - some of ‘em don’t believe that the VP even *can* preside in the Senate …
June 25th, 2007 at 6:42:38 pm
Lets see. Reading my handy pocket copy of the constitution [yes yes, be quiet] The office of the VP is created in Article II as an officer of the executive branch. However, his only Constitutional executive power is that he can be removed from office by impeachment (Article two, section four). The only other power of the VP is that of President of the Senate which is Article one–which would appear, at least on the surface, to be a largely ceremonial role (i.e. executive as the concept of the President was, generally, mostly ceremonial and he was not intended to be where the action was, in terms of policy creation so to is dithering about the Senate–mostly just a way to give the dude something to do.) So as a Constitutional matter, the VP functionally has no power at all full stop except as a tie break in the Senate full stop. Anything else is a delegated power. Those powers are delegated by the executive branch not the legislative and any agency the VP has, beyond tie breaking in the Senate, is strictly through the executive branch and at the pleasure of the President. In other words, I would say that the VP is exercising executive power unless he is voting in the Senate. But that voting in the Senate in the case of a tie is his only duty under the Constitution. Put another way though, I don’t think anyone would argue that the Chief Justice of the United States is not an officer of the judicial branch even though he has the duty of being presiding officer of the Senate in case of impeachment–arguably a legislative duty.