The Volokh Conspiracy

Bit difficult to square with the strong assertions of executive privilege by Cheney and his office, isn't it?

The best part of this story is how the vice-president worked to try and eliminate the agency that was requesting the routine oversight.

I think it's a comment on how bizarre Cheney's claim that the office of the Vice President is part of the Legislative when oversight is involved. Especially since, when the Legislative branch is looking for oversight, e.g. the energy hearings, Mr. Cheney claims to be part of the Executive branch.

First scenario

Investigator A: "We need to exercise some oversight, Mr. Cheney."

Cheney: "Which branch of government are you from?"

Investigator: "Congress."

Cheney: "Sorry, can't comply. Executive privilege, you know."

Second scenario
Investigator B: "We need to exercise some oversight, Mr. Cheney."

Cheney: "Which branch of government are you from?"

Investigator: "The Information Security Oversight Office (an Executive agency)."

Cheney: "Sorry, can't comply. Legislative privilege, you know."

It is particularly slick. The Executive order pursuant to which Congress is trying to get the information is Executive Order 12958. In March of 2003, Bush signed EXECUTIVE ORDER 13292 which amended 12958 by (among other things) specifically including the VP in the classification process. As Byron York noted this is quite a shift but it must not be a shift of executive power.

Why not get Sandy Burgler to come up with the procedures?
Anyone think Senator Waxman and the news media are anything more than political hacks? Anyone think the CIA wasn't trying to get rid of a President they didn't like?
There is a God and so far he has answered President Bush's prayers. The Democrats and the News media are destroying themselves trying to get Bush. In a year and a half Bush retires to the good life in Dallas. Meanwhile the Democrats get to raise taxes during a recession and the News media gets millions of fewer customers.

So let me see if I understand. Mr. Cheney thinks that the Vice President, whose primary jobs are to a) stay alive and b) break ties in the Senate and who is not independently elected, actually has more power than the President and Congress. He does not have to obey those silly laws he doesn't like AND he does not have to obey those equally silly Executive Orders he doesn't like. Nice gig.

Correct me if I'm wrong, but Mr. Cheney only has a right to see the classified information if he is given access by the President or pursuant to Congressional rules. All issues of proper interpretation of the scope of the executive order aside, can't the President condition release of information to the VP on whatever rules he feels like imposing? It seems to me that Cheney could only do this if the President let him.

He doesn't have to win, he only had to delay for 18 months.

Who breaks ties in the House? The VP tie breaking function is arguably about as important (over the past 219 years) to the body politic as the appendix is to the human body.

Congress could of course make a rule that the VP (to the extent in the legislature) must handle classified info per certain rules.

The VP is mentioned once in Article One, as the leader of the Senate.

The VP is mentioned quite a bit in Article Two, including how (s)he shall be elected, and how (s)he shall be removed.

Looks like the VP is an Article Two office to me.

UPDATE: My apologies -- this story is not in The Onion, but rather the New York Times. I regret the error.

Apologies excepted, Orin: seeing stuff like this published, it's an easy mistake to make.... ;)

But: rather than just a bare mention, can we expect some deeper analysis from yourself or any of the VC crew about the legal/Constitutional basis for this, errr.. "creative" claim by the VP?

IAN by any means AL: but even as a simple citizen, it seems to me that VP Cheney's megalomaniac claim of unique Constitutional unaccountability-to-oversight for his office is the wildest crock of nonsense: even by the debased standards of the GW Bush Administration. Am I "right" or "wrong"?

There is a God and so far he has answered President Bush's prayers.

So Bush prayed for a quagmire in Iraq? A butt-whuppin by the Democrats last November? The inability to speak in complete sentences?

Happyshooter writes: What are they? If you mean to say he is one or the other, the Constitution gives him duties in both.


Yes. I mean to say that the VP office could be treated as either executive, legislative, both, or neither.

Another alternative is to treat him as a member of Congress only to the extent that the application of the oversight rules affects his work in his capacity as a potential tie-breaking vote in the Senate.

I doubt Cheney has done much work on breaking ties in the Senate. I'd put the burden on him to show that he has and that executive oversight would protect him. The argument strikes me as being as ridiculous as the title of Prof. Kerr's post makes it sound.

If they dig up a law that requires the legislative branch to turn over stuff, look for Cheney to claim to be part of the judiciary for purposes of that law.

I hope Prof. Kerr enjoys his job in the next Democratic administration.

We seem to be approaching a separation of powers showdown, by the looks of things. And I, among a 70-80% block of this country, don't trust the idiots in any of the 3-branches of government to execute properly in such a showdown. I'd suggest they all back off.

This isn't a new position--in 2005, there was an article about a similar refusal to turn over travel expenses. Article

The upshot seems to be an attempt to exempt the Office of Vice President from all laws and regulations which do not specifically mention it, even though for years the understanding of all has been that the OVP is an agency of the Executive branch for the purposes of those laws and regs.

Damn The Daily Show is done with there filming for this week.

He (officially) has more duties than breaking ties. Officially, he's the president of the Senate. That's why the Senator who leads it is president pro-tem. Nevermind that the "pro tem" here has become "all the time except when it's tied 50-50."

If the executive thinks it is legislative, is it any wonder that the legislature thinks it is executive?

Today, Speaker Pelosi defended her trip to Syria against Rep. King's amendment proposing restrictions on the use of State Dep't funds to travel to countries who support terrorism, by stating that "why would anyone think it is responsible to restrict the ability of the Speaker of the House to bring the concerns of the American people to foreign leaders? It is part of the Speaker’s job,” said spokesman Nadeam Elshami, a spokesman for Pelosi. “This amendment is a cheap political stunt that just won’t fly.”

So, it is apparently the Speaker of the House's job to "bring the concerns of the American people to foreign leaders" - not the executive branch. Get it?

He (officially) has more duties than breaking ties. Officially, he's the president of the Senate. That's why the Senator who leads it is president pro-tem. Nevermind that the "pro tem" here has become "all the time except when it's tied 50-50."

And, as the president of the Senate, he resides whenever he's in the chamber. And--this is really pushing it--were he skilled in parliamentary procedure, he could really do a number on his opponents, regardless of his party affiliation. Controlling the clock, shooting down points of order: if VPs weren't busy all the time, they could have legitimate legislative roles. For instance, if Cheney were a parliamentary procedure guru, he could, conceivably, make life more difficult for Senate Dems.

Of course, as far as I know, he's no such thing.

The Senate rules requiring 60 votes to accomplish anything make the VP tie-breaking role rather superfluous.

Overall I cannot stand the suprmajority requirement, although it occasionally proves useful (as in the ongoing amnesty debate).

Its sixty votes to invoke cloture, or to put it simply "close a matter" to "put it at an end" and thus vote on it.

And it has a very valid purpose, such as the immigration debate or any other debate that is very controversial. It prevents hasty action, and forces people to compromise. The immigration debate is a perfect example.

(I am saying this as a person who wants immigration reform. A person who is irritated the process isn't moving forward, even though the bill is still very flawed. I recognize though just because I am on the side who is irritated by the lack of cloture, someday my position will be reversed and that the 60 vote requirement for cloture is a very prudent and sensible rule..)

This is a deplorable tactic, but one has to wonder if it might also have some nasty whiplash. i.e., Does he have to answer to the senate ethics committee?--although Article II requires an actual impeachment and conviction to remove him from office.

Textually, the argument has merit. The Vice President's office is defined by Article I, not by Article II which merely laid out
1) that runner-up to the Presidency receive the VP post
2) that the VP is first in line to assume the Presidency.

#2 surely is not enough to make someone 'executive in character' given that the speaker of the house is third in line.

IANAL, but this is preposterous. 1. The Constitution says that the VP shall be president of the senate, not a member of the senate, the qualifications for which are plainly spelled out and which the VP doesn't meet. The fact that he presides over it doesn't make him a member of it, as evidenced by, e.g., the fact that in most cases he cannot cast a vote. A commenter upthread made a good analogy about the CJ "presiding over," but _not_ thereby joining, the Senate. 2. Senators represent states; the VP doesn't. 3. I'm pretty sure there's something in the Federalist about separation of powers, and not being in two branches at once.

Anderson, please, no lolcats!

Too late! Tho there is nothing feline about Cheney ... more like a lhasa apso, I think.

"My apologies -- this story is not in The Onion, but rather the New York Times. I regret the error."


Who hasn't confused the two?

Don't you all understand? Dick is in the Executive Branch except when he's not. It couldn't be more simple.

Are the "[O]fficials familiar with Mr. Cheney’s view" from Waxman's office, maybe? Because the CNN story doesn't say anything about the veep's office claiming an out due to legislative functions. It says:

In 2006, Leonard wrote to Cheney's chief of staff, David Addington, to contest the office's refusal to comply and was told that the vice president's office "does not believe it is included in the definition of 'agency' as set forth in the order," nor is it an "entity within the executive branch that comes into the possession of classified information," according to letters released Thursday by Waxman's committee.

The CNN story gives the impression the veep is arguing that his office is not within the technical definition stated in the executive order. That might still be a laughable argument (or it might not be. I don't know) but the claim that the veep says he's not covered because of legislative functions sounds like Waxman polemics to me.

Just for fun, here's the executive order's definition:

Sec. 6.1. Definitions. For purposes of this order:
(b) "Agency" means any "Executive agency," as defined in 5 U.S.C.105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

Perhaps the Bush administration can argue that the President is not part of the executive either. After all, just as the Vice President may cast tie-breaking votes in the Senate, the President has the veto.

Anderson: And fools seldom differ. ;)

But on a serious note, what is the remedy? Is there a remedy short of impeaching Cheney?

Anderson - Bush can't remove the VP - he was elected, after all. But I think Bush can just revoke Cheney's authorization to see the classified info, pursuant to the subsection (d) you posted, or by revising the order to cut the OVP out of the loop. I don't think there's any law that says that anyone in the legislative or executive branch has to tell the VP the time of day, much less let him review classified information.

I think there's some confusion about whether Orin's joke was directed at Cheney or the NYT... both of which suffer from being too worthy targets.

But I think it's Cheney, in this post.

Maybe it's just me, but I thought the joke was on the Times; there's actually no direct quote from anyone from Cheney's office in the piece that confirms what it claims to be reporting. The entire article is based on Dem. Senator Waxman's views on the matter, and the only view for the heart of the article, the legal claim, is based on:

'Mr. Addington stated in conversations that the vice president’s office was not an “entity within the executive branch” because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.'

Unpack that sentence and notice: with whom were these conversations held, and why not tell us; the only actual quote from Mr. Addington is “entity within the executive branch”; this is quote a fragment to base a piece on. Maybe I'm wrong and we're just supposed to assume the Times is correct, but couldn't we get something close to a direct quote about it?

Well let's see, we have Waxman and "officials familiar with Mr. Cheney’s view" characterizing the dispute. Well, we know what Waxman thinks about Cheney. Any of you trust the NYTimes to find familiar"officials" that would give an honest charaterization of Cheney's position?

I'm hoping this is what the good perfesser meant when he "linked" to The Onion.

Steve - Well, if Cheney's office would actually condescend to talk to the press, you might have a point. In my opinion, you lose all right to bitch about mischaracterization when you refuse to even put your version out there. Besides, the version put out by Waxman and the unnamed officials is consistent with Cheney's past behavior and this administration's attitude in general.

So is Bush the superior of Cheney?

Nope. They were each elected to fill their respective offices.

Looks like we are going to have to re-write all civics books and American Government texts to reflect that we actually have four branches of the federal government:
Legislative
Executive
Judicial
Vice-Presidential

Why didn't he just pull a Gore and state there is no controlling legal authority regarding oversight of the information?

After all, it is a special VP privilege.

Cheney "Might makes right byzatches"

Well, let's see.

Constitutionally, the office of the Vice President has no executive powers whatsoever. All executive power is vested in the President of the United States. There accordingly seems to be no executive character to the powers of the office. On the other hand, the Constitution explicity grants the Vice President the presidency of the Senate and a casting vote in case of equal division. These are both detailed in Article I and are legislative in character.

The Vice President can exercise the power of the office of President, but only when the President is unable to discharge his duties; and members of the legislative branch, if they are in the line of succession established by law and the succession reaches them, may also exercise such powers. This does not prejudice any claim that the Vice President is not an executive officer, but a legislative one.

The office is mentioned in the section on electing the President, but we see from the original text that it was originally merely that the second-place finisher for the office of President became Vice President. It would have been painfully unwieldy to place the procedure for selecting the VP elsewhere while leaving the procedure for selecting the President in Article II, so the placement cannot itself be considered evidence as to the character of the office.

The placement of the Vice President in Article II section 4 may serve as evidence that he is an executive officer, but it's thin; the same section covers the removal of judicial officers. It is perfectly possible that the vice-president is similarly a sort of legislative officer removable only by impeachment.

Interestingly, we note that Congress cannot change the compensation of either the sole official invested with the executive power or that of any official invested with judicial power during their term of office, which the Federalist Papers indicate was explicitly to guarantee the executive and judiciary independence from the legislature. The compensation of the Vice President, like that of members of Congress (until passage of the 27th Amendment), was not so insulated. This suggests that it was not considered necessary to make the office independent of the legislature.

Then there's the historical. Vice President Adams was an active presence in the Senate (casting 29 votes), but attended only a single Cabinet meeting; no other Vice President attended a Cabinet meeting again until 1918, when the President was in Europe and with the Vice President acting in his stead at the meetings. Coolidge attended Harding's Cabinet meetings, but the practice then lapsed until revived by FDR. The Vice Presidential role on the National Security Council was invented in 1949, and no Vice President received a West Wing office until 1977. So it seems an Executive Branch role for the Vice President is thus a fairly modern development.

The evidence, then, to me suggests that the office of Vice President is both Constitutionally and historically a legislative office, not an executive one. Accordingly, the delegation of executive authority to the office is a violation of the separation of powers, and the claim of executive privilege by members of the office untenable.