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Tuesday, July 31, 2007
By Steven L. Taylor

The Vice President was interviewed by CBS News’ Mark Knoller and continues to defend his ill defined theory of the “unique” position of his office in the constitutional order.

Here’s the relevant bit of the transcript from Think Progress (which has the full transcript plus the audio)

Mark Knoller: Are you part of the executive branch, sir?

Vice President Cheney: Well, the job of Vice President is an interesting one, because you have a foot in both the executive and the legislative branch. Obviously, I have an office in the West Wing of the White House, I am an adviser to the president, I sit as a member of the National Security Council. At the same time, under the constitution, I have legislative responsibilities. I’m actually paid by the Senate, not by the executive. […]

KNOLLER: But you are principally a part of the executive branch, are you not?

CHENEY: Well, I suppose you could argue it either way. The fact is I do work in both branches.

Now, at this stage of the game I suppose that Cheney has no choice but to defend this position, still you’d think he’d have a better way to explain it in a way that transcended “I suppose you could argue it either way.”

I will wholly allow that the veep does have legislative responsibilities–that is indisputable. However, most of those responsibilities are ceremonial and aren’t even engaged in on a day-to-day basis. The Vice President is the presiding officer of the Senate under the Constitution, but he only performs those duties on rare occasions (e.g., the start of a new Congress, the swearing in of new Senators, the State of the Union Address, etc.). The only assigned power that is truly legislative is that he can break ties–something that doesn’t happen too often. According to the Senate, there were all of 243 total tie-breaking votes from 1789 to December of 2005 (see here [PDF]). Many veeps never cast a tiebreaker. All of the other duties are wholly administrative/ceremonial.

Quibbling over things like where the check comes from is silly, as ultimately all the money comes from the taxpayers and is allocated via the Congress, even the President’s pay.

I would note that the President also has a power that is legislative in nature: the veto. The veto directly inserts the president into the process of whether a bill passes or not, and is thus like a “super vote” that can nullify the will of numerous members of the legislature. However, no one would argue that the President is part of the legislative branch. Of course, that power is ultimately part of the checks and balances built into the Constitution. One could argue that the VP’s presence in a legislative body is likewise part of that mechanism, but that does not make him part of the legislature. Beyond that, I can see an interesting academic argument over the exact nature of the office.

Regardless of all of that, I could live with Cheney opining on his uniqueness, except that he uses his theory to protect himself from responsibility and oversight. While he claims to be part of the legislative branch, he believes that his work is protected by executive privilege. And when did this whole discussion begin about which branch the VP’s office is in? It emerged when Cheney didn’t want to follow an executive order regarding the handling of classified documents earlier this year (indeed, it would seem that the “unique creature” theory was specifically formulated because of that situation, making it appear to be something other than a principled position on the theoretical nature of the constitutional order).

As such, Cheney wants to have it both ways, being in whatever branch suits him at the moment, answering to whom he wishes whenever he wishes and not doing so if he does not.

It also strikes me that given a) this administration’s (and Cheney’s) clear desire to expand executive power, it is odd to unmoor the VP from the presidency, and especially b) this administration’s view of the “unitary executive”–as Cheney is saying he is the only officer in the White House who is not part of the president’s basic executive power, which is an odd position to take given this administration’s theory that all executive power emanates from the president.

The bottom line is that under the rule of law, and especially in democracies, there has to be clear lines of responsibility and Cheney’s slippery version of the constitutional position of his office makes the issue of to whom he is responsible subject not to the law or clear constitutional definition, but rather leaves them to him to decide given his perception of the situation. That shouldn’t be an acceptable manor of operation for any public servant.

Cheney’s argument would be easier to swallow, by the way, if he thought that his membership in the legislative branch actually meant that he thought he was responsible to the Senate. However, the only way he has used his membership in the legislative branch was to shield himself from an executive order. As such, I have a hard time taking the position as a credible one. While he states you can “argue it either way” and that he “ha[s] a foot in both” branches, the bottom line is that he clearly does not behave as if his job (and loyalties) are split evenly between the two branches.

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8 Responses to “Back to Cheney and his Multi-Branch Theory”

  1. Ratoe Says:

    Your argument is solid. One other thing that is really troubling about Cheney’s stance is that–as you have mentioned–he started using this BS legislative branch argument in order to get out of having to comply with procedures that PROTECT NATIONAL SECURITY.

    Given the fact that one of his former aides is currently in prison for spying, this is especially scary.

    Cheney’s stance and his office’s links to an international espionage ring raises suspicions.

  2. Steve Plunk Says:

    If we accept executive orders as part of our democracy we must also accept the idea that Cheney can claim immunity from such an order if the President agrees (which he has). That is far from violating the rule of law.

    Executive orders and administrative rules bypass our democratic process to a certain degree. Both are overused. That said, if we grant that power (executive orders) to a single person we must also expect that person to have the power of when and where to enforce it.

    Moving beyond the issue of Cheney’s claims of executive priviledge and impacts of executive orders I think his explanation of the office of the VP is correct, it is unique. Besides being in line for the presidency what constitutional duties are assigned to the office on the executive side?

  3. Dr. Steven Taylor Says:

    Steve,

    It is one thing for the President to alter the applicability of an executive order in regards to the VP, it is another for the VP’s office to assert that it doesn’t have to follow an EO because it isn’t “an entity in the executive branch.”

    The problem in this whole situation is that Cheney did not simply go to the President in the first place, but rather claimed his unique position.

    I know you have a hard time criticizing this administration, but surely you see the distinction?

    And while the veep is unique (indeed, by definition his position is unique, as there is only one of him), that’s not really the issue. Indeed, as I note, I am happy to have a theoretical discussion of the veep’s role, but the real critique here is Cheney’s willingness to pick and choose his position based on what suits him. Surely that is problematic?

  4. MSS Says:

    Wow, Steven, I was about to say that the pay always comes from the people by way of Congress and that the President is also a legislator. But you already did that.

    The only thing I will add is that the institution of the Vice Presidency is not something the founders thought very carefully about. It really is a mistake; there is no really good reason to have an executive official (which he is, despite Cheney’s squishiness) break Senate ties, and there are other ways to deal with the occasional vacancy in the presidency.

    Remember that there was one very big mistake in the original constitution that was corrected with one of the earlier amendments: originally the VP was simply the presidential candidate who was the runner-up in electoral votes.

    (Hmmm, on second thought, I have to say that under current conditions, that now seems like one of the better features of the original constitution.)

  5. MSS Says:

    More on Steve’s comment, at #2:

    “If we accept executive orders as part of our democracy…”

    Why should we?

    “Executive orders and administrative rules bypass our democratic process to a certain degree.”

    And if we accept this second argument of yours, then we indeed can’t “accept executive orders as part of our democracy”!

    Or is your argument that democracy can bypass democracy–by decree, no less.

  6. Steve Plunk Says:

    Dr. Taylor,

    It’s not that I have a hard time criticizing this administration it’s that I see a great deal of criticism that, in my opinion, is hollow.

    We have no idea if Cheney talked to the President before claiming the executive order did not apply. I certainly have not seen anything to contradict the notion that the President agrees with the Vice President. I see no problem.

    MSS,

    The question of accepting executive orders as legal has been answered by the courts. Now I don’t like executive orders as they stand today feeling that they are overused and abused. Clinton made the famous quote of “stroke of the pen, law of the land, kind of neat”. The fact that they are easy to enact, can be overrule by later administrations and bypass representative legislators cheapens the legitimacy of such rules.

    I see similar problems in my state with administrative rules written by various bureaucrats without proper oversight by the legislature.

    I don’t understand your point about my second argument. Cheney’s explanation about the office seems correct. It is a hybrid of both the executive and legislative branch. With no explicit executive powers, explicit legislative powers, running as a team for office with the presidential candidate, the vice president’s role and function is not easily explained.

    Democracy can bypass democracy by decree. We have given administrations that power to a degree. It is now a discussion of what degree, more or less. I would argue taking some of that power back while recognizing some must remain with the executive in order to enforce and enact legislated law.

  7. Dr. Steven Taylor Says:

    Steve,

    In regards to Cheney and the President, the chronology is pretty clear: there was a request made to Cheney about complying with the EO, Cheney’s office responded that they didn’t have to because they weren’t an executive entity, the story became public, eventually the President revised the interpretation of the order to absolve the veep of responsibility.

    As such, it is pretty clear that Cheney did not simply go to the president, instead he first made the silly “not an executive entity” argument and then, when the the issue became one of public debate did the pres get involved.

    Do you see my point?

  8. MSS Says:

    Steve P., you had stated that executive orders bypass the democratic process, so that would imply an argument that they are inherently undemocratic (at least when they do more than merely implement clear legislative intent, whatever that might mean).

    Now I am willing to say that democracies can have executive decree power. In fact, I have published a book with Cambridge University Press making precisely such an argument.

    However, under the US constitution, they are democratically dubious to the extent that they go beyond the clear letter of statute and/or attempt shield the executive branch from constitutional accountability.

    And I agree that Clinton abused his executive-order authority in some cases, notably under the Antiquities Act. However, those transgressions are small potatoes compared to the Bush-Cheney years.


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