Monday, June 25, 2007

Dick Cheney claims Vice Presidency isn't part of the executive branch

What can you say to Cheney's recent assertion that he is not part of the executive branch?

Dick Cheney, who has wielded extraordinary executive power as he transformed the image of the vice presidency, is asserting that his office is not actually part of the executive branch.

In a simmering dispute with the National Archives that heated up yesterday, Cheney has long maintained that he does not have to comply with an executive order on safeguarding classified information because his office is part of the Legislature.

You can be shocked like Digby:
I had always known that Cheney was running the show, but I assumed he did it purely by using the power of the executive branch and manipulation of the presdient. I had no idea that he might have secretly carved out a previously unenumerated institution that derives its power from both the legislative and executive branches. What in the hell has really been going on in this administration?
You can attempt to rationalize it, like Glenn Reynolds:
The argument that the Vice President is a legislative official isn't inherently absurd. The Constitution gives the Vice President no executive powers: The VP's only duties are to preside over the Senate, and to become President if the serving President dies or leaves office. The Vice President really isn't an Executive official, and isn't part of the President's administration the way that other officials are -- for one thing, the VP can't be fired by the President: As an independently elected officeholder, he can be removed only by Congress, via impeachment. (In various separation of powers cases, the Supreme Court has placed a lot of weight on this who-can-fire-you test).
(Although even he is forced to admit that this is a bad argument.)
But here's the thing: Whatever executive power a VP exercises is exercised because it's delegated by the President, not because the VP has it already. So to the extent the President delegates actual power (as opposed to just taking recommendations for action) the VP is exercising executive authority delegated by the President, but unlike everyone else who does so he/she isn't subject to removal from office by the President (though the President could always withdraw the delegation, of course). However -- and here's where the claim that Cheney is really a legislative official creates problems for the White House -- 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. So to the extent that this is what's going on, the "Cheney is a legislative official" argument is one that opens a big can of worms.
Or you can look at the Constitution (Article II, to be exact) which seems to make it pretty clear which branch of government the VP is a part of:
Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected...

UPDATE: The Daily Show treats Cheney's claim with all the respect it deserves:

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