June 23, 2007

Rule Of Law?

I haven't followed the kerfuffle over Dick Cheney's handling of classified material very closely, mostly because it looked like one of the mountains that Cheney's critics like to make out of molehills. However, this issue does hold a political if not legal vulnerability for the White House and Republicans over the perception of way that the administration wields its power, and is worth a second look for conservatives (via Memeorandum):

The White House defended Vice President Cheney yesterday in a dispute over his office's refusal to comply with an executive order regulating the handling of classified information as Democrats and other critics assailed him for disregarding rules that others follow.

White House spokeswoman Dana Perino said Cheney is not obligated to submit to oversight by an office that safeguards classified information, as other members and parts of the executive branch are. Cheney's office has contended that it does not have to comply because the vice president serves as president of the Senate, which means that his office is not an "entity within the executive branch."

"This is a little bit of a nonissue," Perino said at a briefing dominated by the issue. Cheney is not subject to the executive order, she said, "because the president gets to decide whether or not he should be treated separately, and he's decided that he should."

Democratic critics said Cheney is distorting the plain meaning of the executive order. "Vice President Cheney is expanding the administration's policy on torture to include tortured logic," said Senate Majority Whip Richard J. Durbin (D-Ill.). "In the end, neither Mr. Cheney or his staff is above the law or the Constitution."

This dispute has two aspects to it, one political and one legal, and neither benefit the White House, at least not the way it is handling the issue. President Bush set rules governing the handling of classified material for the entire executive branch in a 2003 presidential order. If he wanted to exclude the White House and the Vice-President's office in that order, he could have explicitly done so at the time. Without another order specifically doing that, the 2003 order should cover all executive-branch offices, including Bush and Cheney. The rule of law applies, not the rule of whim, and without another order outlining the specific responsibilities of the President and VP, that's what Bush and Cheney's demands appear to be.

While the legal case is tenuous at best -- no one disputes that Bush could modify the order if necessary -- the political case is solidly foolish. Why pick this fight? Is there a rational reason why the President and VP cannot comply with the same standards applied to the rest of the executive branch? If so, that argument has not found its way outside of the administration, leading people to wonder what the two have to hide.

The VP has strained credulity by arguing that he doesn't belong to the executive branch at all, and that the order therefore doesn't apply. Of course the VP is a member of the executive branch; he's elected in tandem with the President through the Electoral College. He didn't get elected President of the Senate, a title that springs from the authority of being VP, not the reverse. Arguing otherwise makes Cheney look ridiculous and desperate, begging the question of what has caused the desperation.

American culture and identity was formed on the basis that no man is above the law, not even Presidents and Vice-Presidents. If the executive order puts too much burden on the White House, then Bush should revoke or amend it, and explain why it's necessary to do so. Stop trying to pretend that the VP is a member of the legislature and playing damaging games.

UPDATE: I'd say the Constitution is rather clear on this. Article 2, section 1 starts:

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, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Arguing that the VP belongs to the legislative branch either looks like desperation or a Constitutional illiteracy that should disturb everyone, not just Democrats.

UPDATE: I asked Glenn Reynolds what he thought of the argument made by Cheney. Answer: not much. Joe Gandelman has a round-up of reactions.


TrackBack URL for this entry:

Listed below are links to weblogs that reference Rule Of Law?:

» No Surprise, But Olbermann Is A Liar from Iowa Voice
Think Progress has a transcript and video of Kieth Olbermann calling the White House a bunch of l… ... [Read More]

» Democrats Will Try To Cut Cheney Out Of Executive Funding (UPDATED) from The Moderate Voice
Since Vice President Dick Cheney is insisting his office isn’t part of the executive branch, the Democrats have decided to take legislative action to take away its executive branch funding. And Democratic Caucus Chairman Rep. Rahm Emanuel (D-Ill... [Read More]

» Dems To Cheney And His “Personal Fourth Branch Of Gub’mint”: CHECKMATE! from The Gun Toting Liberal™
As long-time readers would already know, I have NEVER appreciated the “fun and games” that goes on in Washington between the Democrats and Republicans… ‘TIL NOW. From The Raw Story: Democrats plan to cut Cheney out of executive... [Read More]

Comments (39)

Posted by patch | June 23, 2007 10:10 AM


Follow the money...

The Vice-President gets paid by the Senate. The VP did not even have an office in the White House until Richard Nixon served as VP under President Eisenhower.

VP Cheney has a good legal basis for saying his office is not part of the Executive branch.

Anyway this shouldbe fun.

Posted by Dale in Atlanta | June 23, 2007 10:11 AM

Capt'n: you are correct, well done, and I have to be consistent here.

When I was on Active Duty in the Corps, Paula Jones was attempting to sue the Commander in Chief at the time, Bill Clinton.

The Clinton team tried a bit of legal ledgerdemain at that time, claiming that Clinton was protected against Civil Lawsuits just like Active Duty Military members, because as Commander in Chief of the US Military, and NOT "President" (civilian); he was in fact an Active Duty Military member, and thus exempt from Civil Suits, which is known as protection under the "Soldiers & Sailors" Act.

As an Active Duty Officer at the time, I was offended that the President would attempt such a transparently "wrong" thing, and needless to say, it didn't work, because Clinton lost his attempt to be declared AD military, and the Paula Jones lawsuit, as we all know, when ahead, and the rest is history.

As a strong supporter of President Bush, and the GWOT and the Iraq War, I cannot be any less consistent with this nonsense, put out by the Cheney Office.

As you so correctly argue, he IS part of the Executive Branch, not part of the Legistlative; he IS beholden to the rules/laws handling Classifified Information, and this is the wrong issue, at the wrong time, and the wrong fight, and it's just plain, frankly, stupid!

If President Bush wants the VP's office to have a "differnt" set of rules to follow; though not wise, all he has to do, is Amend his 2003 Executive Order, to say so, and it's done.

This is foolish, and dumb, and not worthy, and it's just another example of the idiotic faux-scandals, the Administration seems to LOVE to serve up to it's enemies, on a silver platter, every couple of months, just for the heck of it: Libby/Plame, Dubai Ports, Harriet Miers, the Federal DA firings, etc.

Just plain ludicrous, just plain ludicrous.

It's almost as if they sat down in the Oval Office, and came up with a list of "Stupid Stuff we shouldn't do, to make the American people lose faith in us!", and then proceeded to go down the list and implement every one of those things!

Posted by Patrick T McGuire | June 23, 2007 10:19 AM

This isn't even big enough to be a molehill. I won't argue the legal and/or ethical issues here, including some that haven't been covered, because nobody is going to be swayed one way or the other.

My gut tells me that Cheney is thumbing his nose at Congress, or at least certain members of Congress, like Waxman. These Congressional officials have the opinion that they can do just about anything they want and everyone else is supposed to just fall in line.

Cheney has given up the more direct message that he said to Leahy some time back for a more subtle means of expressing the same sentiment.

Go get 'em Mr. Cheney, good on ya!

Posted by smagar | June 23, 2007 10:48 AM

I have to think that Cheney's staff has some, or all, of these concerns

1) The impartiality of the NARA oversight office staff
2) The ability (or inability) of the oversight office to keep any of its findings from leaking to the press. (this might explain why Cheney's office stopped cooperating in 2003)
3) The potential that Torquemada Waxman and company will subpoena oversight committee staff and records for more show trials...er, hearings.

BUT, I must admit, this is a pretty hamhanded way for the VP's office to handle this. By gooling "NARA", you can find the PDF of the original bill establishing the agency. It clearly says that NARA is an executive branch agency.

I'll admit--I think of the VP as a member of the executive branch, along with his office, staff and records. Maybe I'm technically wrong, but I'll bet most Americans think of the VP as part of our executive branch. Knowing that, the VP's office and WH press office have to do a MUCH better job of explaining themselves if they're going to defend themselves here by---asserting that he isn't a member of the executive branch!

Now, if the VP has good reasons for fighting this probe, he should lay them out. If, indeed, he fears that NARA is itching to leak, or that Waxman will pounce the next time they investigate, perhaps the VP should consider making THAT his defense.

We resisted the inspections because we feared that NARA data would leak, and that partisan Congressmen would use it for their own purposes. Given the Valerie Plame affair, the NYTimes and WaPo's serial publishing of classified information, and the inquisitorial tone of our sitting Congress, I think I did the right thing. Let me be clear---I directed my staff to follow all appropriate federal guidelines, and I take full responsibility for this decision.

Posted by Mikey NTH | June 23, 2007 11:12 AM

It is an excuse for laziness and arrogance (this is too much work and I don't need to follow it...oh, wait; you want a justification -excuse-rationalization?).

Just admit you fubarred and then follow the instruction. I doubt V.P. Cheney was doing anything wrong with the material, but it looks bad when the higher-ups can't follow the instructions they give to the troops.

Posted by Anthony (Los Angeles) | June 23, 2007 11:28 AM

The VP is de jure a member of the legislature, regardless of how he's chosen: his only constitutionally mandated duties are to be president of the senate and to succeed if the President can't serve out his term. He's the Senate equivalent of the House Speaker (who, btw, does not have to be a sitting House Rep, as I recall). As someone points out above, Veeps didn't even have offices in the White House until Eisenhower-Nixon.

But, custom and practice over the decades has de facto made the Veep a member of the Executive Branch in all but name, and that's how he is seen in the public eyes. You're right on this, Ed: this is a stupid controversy the Administration could and should have avoided. All they've done is what they have done so many times in the past: handed the Democrats another club to beat them with.

Posted by MarkD | June 23, 2007 11:28 AM

Invoke the Constitution. Yeah, that'll work. Most of what is done in DC ignores the enumerated powers of the Constitution.

What do they want next, for us to believe them when they say ,"Amnesty, for the last time. This time it'll be different?"

Posted by Lightwave | June 23, 2007 11:33 AM

It looks bad when Cheney says things along these lines. But it looks worse when you have Dems in Congress abrogating powers THEY DO NOT HAVE to run roughshod over the GOP.

This is quite literally the worst Congress in history. The people agree with that assessment: just look at the numbers. It hasn't passed a single piece of legislation that America needs right now. In six months, they've managed to shoehorn a tax on small business in the minimum wage increase just when we need it the least. That's it. That's the extent of their accomplishments so far, those "Dems with a mandate."

Taxes and revenge.

Posted by kindaskeptical | June 23, 2007 12:36 PM

The level of Cheney's stupidity on this one is mindboggling.

They're not an oversight body that checks WHAT classified documents he has. They haven't LEAKED what he has or is doing with it because they don't know what anybody has.

All Vice President Cheney had to do was fill out a form that says he's putting classified documents in a locked file cabinet when he goes home, and doesn't leave it on his desk when someone not authorized to see it is in the room. That's it.

Instead he looks like he's hiding something from proper authorities, he looks like he's violating the law, he looks like he's making a totally phony argument to hide it, and if he's claiming not to be in the Executive, the next scream will be about his claims of Executive Privilege, which he may not be entitled to if his office is not an "entity" in the Executive.

The legal and ethical situations would be negligible unless they press the "not an entity" within the Executive. The thumbing your nose at Congress is irrelevant for Cheney, but for Republicans it ought to smell as sleazy as "what the meaning of 'is' is."

Posted by olddeadmeat | June 23, 2007 12:44 PM

Cap'n et al:

Both parties seem to confuse lack of respect for the person with lack of respect for the office.

Yes, the whole issue is a little squirrelly, but the law should be the law, if the VP doesn't agree, then he should call the WH. GWB could issue an order tomorrow adjusting the reg and defusing the issue.

In this case, Cheney is clearly at fault. This behavior is about as offensive as Marie Antoinette's "let them eat cake" attitude.

Politicians are not royalty or even nobility. Dick Cheney doesn't get to rewrite laws for his convenience just for being the Veep, and Pelosi doesn't get to use the Air Force as her private carriage service.

A pox on all houses in Washington.

Any elected official who has this attitude I would almost accuse of treason. After all, the whole point of the Revolutionary War, the Declaration of Independence and the Constitution was to promote equality among citizens, not a new nobility, and elected officials swear oaths to uphold the Constitution.

OK, that might be a little strong, but we definitely need a change of attitude in our elected officials.

Posted by JOSEPH MCNULTY, JR. | June 23, 2007 1:22 PM

You are wrong. Constitutionally, the Vice President is co-equal with the President, not a member of the Executive Branch, subordinate to the President. The vice president has specific Constitutional duties (presiding over the Senate). Obriously, the Vice President does NOT serve at the pleasure of the President, who cannot dismiss him. Neal Boortz talked about this on Friday, citing various nonpartisan political science books. So, obviously, the Vice President is not a member of the Executive Branch any more than the President is. It is understandable, in a modern sense, to divide the government into three "branches" -- executive, legislative, and judicial. But this is merely a modern convenience and not what the Constitution says. The President and Vice President stand apart from the Executive Branch. They direct it, but are not part of it.

Posted by Michael A. Morris | June 23, 2007 1:23 PM

There is a tendency to read more into the text of the Constitution than is actually there. The statement regarding the executive power of the United States stops at the period and does not mention the Vice-President. The second sentence of that paragraph simply defines the term of the President and the Vice-President and how they are to be elected to those terms.

I agree that it is natural to assume that the Vice-president is a member of the executive, but the Vice-president has no executive power, and his only Constitutional duties are as the President of the Senate.

If President wanted to, he could completely ignore the Vice-president, as Roosevelt did to Truman, and there would be no question that the Vice-president is the least attractive office in the land.

Posted by Mark | June 23, 2007 2:02 PM

> This dispute has two aspects to it, one political and one legal

I'd add a 3rd: national security (i.e. was the office of the VP complying with all laws concerning handling of classified material).

Posted by Charles | June 23, 2007 4:01 PM

Constitutionally, the VP has no duties other than President of the Senate, without a vote except in case of a tie, and to succeed the President.

However, Cheney has exercised vast power within the Bush WH, to the extent that in many areas the OVP appears to be running the show. Where did this power come from? If it did not come from the Constitution, then it is illegal. If it was delegated by the President to the VP, then an instrument of delegation (which could be as simple as notes of a meeting, and can be classified if desired) must exist, as otherwise, nobody knows at any time who is in charge of policy in a particular area -- and that's an extremely bad idea.

I was asked on a previous thread why I suspect the VP of guilt in the Plame case. The day after I was asked that, this latest incident popped up. Incidents like this (and it isn't the first -- this kind of thing has been happening all along) are the reason so many of us are suspicious of the actions of the VP.

Frankly, it really seems like these folks are just making it up as they go along, which doesn't give me any confidence in them or their policies.

Posted by Rose | June 23, 2007 4:44 PM

Most disturbing of all is the political illiteracy that the GOP suffers in being UNABLE to disarm the FALSE arguments the DIM SOCIALISTS make for pretending the Americans owe them the knife to let them cut our throats with, while THEY sally forth irregardless of ANY laws or standards or regulations to the contrary.

I'm watching SAHARA, right now, with Humphrey Bogart.

I find it preposterous that the DIM PARTY expects us to lay down and let them cut our throats with help from RINOS, as if we were Daniel Pearl in front of Islamic Terrorists.


I find it insufferable.

Yes, I believe in oversight - but who is oversighting our government to stop them from slashing us to pieces, and handing our enemies EVERYTHING required to destroy us?

Does anyone doubt that the only reason the Democrats are demanding info from Cheney is for the HARM of AMERICA?

When does one segment of the govt have the RIGHT AND MORAL OBLIGATION to hold off another RENEGADE group of our govt????

Wouldn't it be a MAJOR SHOCK if JUST ONE TIME the DIM PURPOSE in gaining SECRET DOCUMENTATION is so they could leak information THAT IS IN AMERICAN BEST INTERESTS if itis ireleased, and isn't merely a ROADWAY our ENEMIES can take for further destruction?

What if we pass a law that if they gain the information for illicit reasons, then ALL OF THEM COLLECTIVELY will be charged with CONSPIRACY to commit treason WHEN ANY of THEM LEAK IT!

Posted by cfoster | June 23, 2007 5:40 PM

But there is a real question whether the vice president is an official that the president can order around with executive orders. Executive orders are a means by which the president directs entities within the executive branch over which the president has authority. I'm not sure the vice president is in fact such an entity.

Posted by CatHerder | June 23, 2007 5:49 PM

The problem is, if the VP isn't part of the Executive Branch, I don't think executive privilege can be claimed regarding the details of the VP's operations... and since it *was* claimed regarding Cheney's energy meetings (and perhaps other things), this could become a legal conundrum.

If the Bush Administration isn't doing illegal things behind everyone's back, they do a ***VERY GOOD*** job of making it LOOK like they're doing shady crap because of the air of secrecy surrounding many things they do.

As they are fond of reminding people... if they haven't done anything wrong, what do they have to hide?

Posted by CatHerder | June 23, 2007 5:55 PM

The President and Vice President stand apart from the Executive Branch. They direct it, but are not part of it.

That's absolute crap. Scalia was against the Office of Independent Counsel because it constituted a fourth branch of government outside the realm of the constitution or oversight.

If something like this gets to the Supreme Court, methinks even the conservative wing will laugh in Bush's face.

Posted by cfoster | June 23, 2007 5:58 PM

I think Waxman has effectively mischaracterized the veep's claim. Waxman says the veep claimed he's not an executive entity in a letter to Waxman's office. However, Waxman dishonestly truncates the veep's actual claim, which, in essence, says the veep is not an executive entity under the definition of who is covered by the executive order.

Posted by CatHerder | June 23, 2007 5:58 PM


Does anyone doubt that the only reason the Democrats are demanding info from Cheney is for the HARM of AMERICA?

Wouldn't it be a MAJOR SHOCK if JUST ONE TIME the DIM PURPOSE in gaining SECRET DOCUMENTATION is so they could leak information THAT IS IN AMERICAN BEST INTERESTS if itis ireleased, and isn't merely a ROADWAY our ENEMIES can take for further destruction?

Sorry. You sound exactly like Hillary and her talk of a "vast right-wing conspiracy."

In fact, you're sounding dangerously close to an unhinged leftie 9/11 conspiracy theorist.

Posted by Ken Oglesby | June 23, 2007 6:29 PM

Maybe defeatocrats should read those little pocket copies of the Constitution they are so fond of pulling out and showing to the tv cameras.
Maybe they should also consult that renowned Constitutional scholar,Robert(Sheets)Byrd,defeatocat from WV.
He should be able to set them straight.

Posted by Tully | June 23, 2007 6:40 PM

As near as I can tell after having read the press conference transcripts and the available material, the claim that Cheney is saying the VP is not part of the executive branch is coming only from Waxman. Gee, would pug-nose lie for partisan reasons?

What the WH is saying is that the OVP is exempt because the Prez says so, having included the OVP in the Presidential authority of the EO--which is completely within the scope of the Prez's authority.

IOW, I think the argument is political hooey being pimped by Waxman, in his lust for 24/7 hearings.

Posted by CatHerder | June 23, 2007 6:49 PM

As near as I can tell after having read the press conference transcripts and the available material, the claim that Cheney is saying the VP is not part of the executive branch is coming only from Waxman. Gee, would pug-nose lie for partisan reasons?

What the WH is saying is that the OVP is exempt because the Prez says so, having included the OVP in the Presidential authority of the EO--which is completely within the scope of the Prez's authority.

IOW, I think the argument is political hooey being pimped by Waxman, in his lust for 24/7 hearings.

Maybe Waxman made a bet with someone that the remaining Bush supporters would defend anything that came out of the Bush administration's mouth, no matter how ridiculous, and thus tried to prove his point by saying something ridiculous, yet still oh-so-slightly plausible.

Posted by cfoster | June 23, 2007 6:59 PM

Ed, I think you let Waxman (mis)define the terms of the debate, and you ended up criticizing the veep, not for what he said, but for what WAXMAN said he said.

That's what annoys the hell out of me about this whole debate - everyone is calling Cheney an idiot for something Waxman said about him.

Posted by Tully | June 23, 2007 7:42 PM

Bingo, cfoster. On the money.

Posted by DouglasS | June 23, 2007 9:10 PM

cfoster: "everyone is calling Cheney an idiot for something Waxman said about him"

Wrong. Why are you pretending you're not familiar with what MacBride said, even though that statement was brought to your attention, here?

Posted by Charles | June 23, 2007 9:17 PM

I see the talking points have settled down now to "it's only one one little thing". Yes, just the refusal to account for the handling of classified information during the period when that little outing of a CIA agent occurred.

Doesn't it bother you that Bush is operating the Federal government using the rules of Calvinball? If he can retroactively, 4 years later, re-interpret any rule he's ever made, to exempt -- or include -- anybody he wants, it sure makes me feel comfortable.

Yup, a "kerfuffle" -- as opposed to that great and horrible problem with Nancy Pelosi's web page. Interesting priorities.

Posted by sam | June 23, 2007 9:20 PM

"everyone is calling Cheney an idiot for something Waxman said about him"

No. "Everyone is calling Cheney an idiot" because it was Cheney's spokesperson MacBride who presented the idea that Cheney was somehow not really part of the executive branch. This is documented in the letters posted by Waxman. MacBride said this: "This matter has been thoroughly reviewed and it has been determined that it does not apply to OVP, which has both legislative and executive functions."

Posted by Warmongering Lunatic | June 23, 2007 10:03 PM

As the portion of the Constitution quoted above says, all executive powers are vested in the President -- and only the President. All other members of the Executive Branch are people exercising Presidentially-delegated authority.

The Vice President accordingly, by the Constitution, has no inherent executive powers. But he does have legislative powers -- the Presidency of the Senate, including a Senate vote under cases of equal division -- specified in Article I.

What branch are all other people with Constitutionally-established legislative powers and no executive powers in? There are 535 of them . . .

Now, yes, the election procedure for VP is included in Article II. However, we note that originally, the VP was the second-place finisher for the Presidency. That is, the VP was the loser of the election of the executive detailed in Article II, not the winner, and got as a consolation prize an office that only has legislative powers.

And despite the change in election procedures, we see that the office of Vice President still only has legislative powers under the Constitution, while "the Executive power" remains solely vested in the President..

Posted by Adjoran | June 23, 2007 11:41 PM

The legal argument is tenuous, but not without some grounding. The President is nowhere in the Constitution granted any authority over the Vice President. The Vice President's only executive function is to stand and wait until the President may be unable to serve through death or disability, but he has a continuing legislative duty under the Constitution as President of the Senate.

The legal argument will boil down to the President's authority over classified documents he has voluntarily supplied to the Vice President. The President would clearly not be required to disclose their content under any act of the legislature or executive order because executive privilege applies.

The question is whether the Vice President must comply with an executive order. That is the only legal issue here, and there is no controlling judicial opinion in existence, as far as I can determine. Therefore, it is an issue which can only be resolved by the Supreme Court.

The Justice Department has no authority over the Vice President in this area, because their authority is only the President's, which is not established. It is hard to imagine this being resolved at the SCOTUS level before the next election, which would render the case moot.

Cheney's position is extremely important to the office of Vice President. If his contentions prevail in any sense, the office is increased in prestige and authority by gaining some small measure of independence, which would be a quite significant new area of constitutional jurisprudence. It would forever affect the responsibilities future Presidents might voluntarily delegate to their Vice Presidents.

Posted by cfoster | June 24, 2007 1:27 AM

I agree with Adjoran's analysis. What has annoyed me most about this issue is Ed's and most everyone else's assumption that the president simply does has the authority to impose exectuive orders on the vice president's office. It seems to me that the burden lies with those asserting the executive power. (Furthermore, it is ironic to see the usual anti-executive power partisans suddently asserting Bush's power here!)

I also agree that the veep's voluntary acceptance of executive tasks involving the handling of classified information give a colorable argument that the office voluntarily put itself under the executive's authority at least to the extent of administering the task at hand.

Posted by cfoster | June 24, 2007 1:31 AM

(Furthermore, it is ironic to see the usual anti-executive power partisans suddently asserting Bush's power here!) - me

Ed excepted

Posted by Nancy Irving | June 24, 2007 12:50 PM

Whoops, there goes the unitary executive! :)

Posted by McNickle | June 24, 2007 1:41 PM

McNulty claims the President is not part of the Executive Branch. The President is the Executive! If he's not part of the Executive Branch then who is? This comment isn't only stunningly stupid but also very scary. People who are willing to make clearly ridiculous arguments in support of their political position are frightening.

Posted by cfoster | June 24, 2007 3:24 PM

As to the vice president's constitutional duties, the president cannot in any sense be called the vice president's boss. The president could not for instance tell the vice president how to vote in case of a tie nor could the president direct the manner in which the vice president fulfills his role as president of the Senate. And the president could not place any stipulations on how the vice president would exercise his powers should the vice president become president. It seems to me that any executive order that tried to direct the vice president's actions would be void and the vice president would be within his rights to ignore it.

However, to the extent the vice president sometimes performs executive department tasks at the behest of the president, there is a
colorable claim that the vice president has placed himself under the president's authority at least to the extent of the performance of the task. But maybe not.

For instance, say the president asks the vice president to receive a foreign ambassador and, say the president has issued some order concerning meetings with foreign officials generally, or concerning dealings with the ambassador's particular country.

There's a good argument that by accepting the task the vice president has placed himself under the president's authority at least with regard to the task. However, maybe not. Maybe the president's only recourse when faced with an uncooperative vice president is to refrain from using the vice president to perform executive tasks.

Posted by cfoster | June 24, 2007 3:39 PM

Whoops, there goes the unitary executive! :)

Actually, the unitary executive doctrine strengthens the vice president's claim here. Since the president can in no way control or direct the vice president in the fullfillment of the vice president's constitutional roles, then, obviously, the president does not have control over the vice president's office. That would seem to support an argument that the vice president's powers are not executive powers, since those are all vested in the president.

Posted by Mark Vance | June 25, 2007 10:52 AM

Usually am with the Captain, but not this time.

The VP has NO Constitutional powers other than presiding over the Senate, which does confer the power to rule on motions and other procedures that arise in the Legislature. He(or she) has no power in the executive branch and cannot be ordered by the President. He (or she) is not the assistant to the President.

While it may be a stretch to say he is a member of the legislature, it is surely more the case than that he is part of the executive, regardless of how he was elected.

On the other, this debate gives me a headache.

Posted by TyCaptains | June 25, 2007 5:17 PM


In a nutshell NARA puts forth the argument that if the VP's office is indeed outside of the Executive Branch, then why aren't they following rules governing classified materials outside of said branch?

BTW, I find it sad that some are willing to whitewash the NSA wiretapping using the rhetorical question, "if you've got nothing to hide, then what's the big deal?" But then failing to hold the same view towards our own elected official simply because he has an R at the end of his name. Ask yourself, what does Cheney have to hide? Why is he directing the Secret Service to destroy logs?