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Cheney Claims He’s Not Part of Executive Branch

Yesterday afternoon, Justin Rood broke the strange story of Dick Cheney’s claim of Vice Presidential immunity from executive orders.

Vice President Dick Cheney has asserted his office is not a part of the executive branch of the U.S. government, and therefore not bound by a presidential order governing the protection of classified information by government agencies, according to a new letter from Rep. Henry Waxman, D-Calif., to Cheney.

Bill Leonard, head of the government’s Information Security Oversight Office (ISOO), told Waxman’s staff that Cheney’s office has refused to provide his staff with details regarding classified documents or submit to a routine inspection as required by presidential order, according to Waxman.

This morning, WaPo’s Peter Baker looked into this in a page 1 piece.

Dick Cheney Says Screw You to National Security Vice President Cheney's office hasn't complied with an executive order on classified data since 2003. Since becoming vice president, he has fought attempts to peer into the inner workings of his office, shielding an array of information such as the names of industry executives who advised his energy task force, costs and other details about his travel, and Secret Service logs showing who visits his office or official residence.

The aggressive efforts to protect the operations of his staff have usually pitted Cheney against lawmakers, interest groups or media organizations, sometimes going all the way to the Supreme Court. But the fight about classified information regulation indicates that the vice president has resisted oversight even by other parts of the Bush administration. Cheney’s office argued that it is exempt from the rules in this case because it is not strictly an executive branch agency.

LAT’s Josh Meyer observes,

Some legal scholars and government secrecy experts noted the irony in Cheney’s stance that his office is not fully part of the executive branch, given his claims of executive privilege when refusing to provide information requested by Congress.

Indeed.

Now, I’ve recently defended Cheney’s claim that the OVP is not a purely Executive agency given his Constitutional role as president of the Senate, so I’ll take some small exception to Steven Taylor‘s statement that “the assertion that the veep’s office is not part of the executive branch is perhaps the most absurd thing that I have heard in some time.”

The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).

It’s an interesting claim that has merit from an intellectual, analytic perspective.

John Aravosis is right, though:

What Cheney is doing isn’t some esoteric battle over protocol. He’s refusing to let the national security watchdogs make sure that his staff isn’t being sloppy with classified information. He is quite literally risking our national secrets during a time of war. These rules exist for a reason, the oversight exists for a reason. People are sloppy, and sometimes they’re even evil. When you’re dealing with classified information, information that can quite literally get someone killed, you need several layers of protection to ensure that the information doesn’t slip out, by intent or neglect. That’s why we have inspections of offices and individuals who receive and retain classified information, to make sure that their sloppiness (or worse, duplicity) isn’t putting our nation, and our troops, at risk.

Now, because of separation of powers, the president could not enforce an Executive Order requiring Members of Congress or the Supreme Court to submit to these protocols. That could be accomplished only by passage of a law or by the agreement of those branches. But Cheney, despite being the head of a legislative house, is not a Senator. So, of course, he has to comply with Executive Orders, unless the president specifically exempts him.

Initially brought to my attention by Cernig, who has much more.

UPDATE: Some good discussion below, including some worthwhile contributions from OTB co-authors Chris Lawrence and Dave Schuler. The latter asks, “what’s the theory on which the Vice President is any more subordinate to the President than the members of the Congress or Supreme Court are based on?” He gives some good reasons to think there is no such basis.

And that’s why it’s an interesting debate, even though I ultimately think Cheney’s claims don’t bear scrutiny in these circumstances.

We’ve always thought of the VP as a member of the president’s team and, increasingly, he’s been used that way. He has numerous statutory duties in the Executive Branch, including a seat on the National Security Council. But, theoretically at least, he’s a Constitutional official elected independently of the President and removable only by impeachment. And his main duties, aside from being a “spare tire,” are in the legislative branch.

Conversely, his legislative duties have evaporated. The designation of the VP as President of the Senate was always, I think, a matter of giving him something to do rather than a major power. Indeed, the rationale, as I understand it, was that serving as the Master of Ceremonies was beneath a Senator and would distract him from serving his constituents.

Few of the Constitutional arrangements, though, reflect the way the VP has been used over the last half century and, especially, since 1977. Jimmy Carter and all subsequent presidents have given their VPs substantial day-to-day duties. And those are, by their nature, Executive duties.

UPDATE: The Decider Guy has Cheney’s back: White House Says Classification Order Doesn’t Apply to Bush or Cheney

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. legion says:

    IANAL, but can somebody explain to me how this blatant, deliberate and systematic defiance of the law of the land is anything other than an impeachable offense?

    And for those who read more of the righty blogs than I, is anyone actually going to step up & defend Cheney on this one?

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  2. spencer says:

    fine, if he is not part of the executive branch then freeze all funds appropriated to fund the office of the vice president — including his big underground bunker at the National Observatory.

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  3. M1EK says:

    When the offense is, well, offensive enough, pussyfooting around it rather than simply calling it what it is is a form of defense. And James has certainly done that here.

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  4. Triumph says:

    When the offense is, well, offensive enough, pussyfooting around it rather than simply calling it what it is is a form of defense. And James has certainly done that here.

    James is just repeating the White House line.

    James: “It’s an interesting claim that has merit from an intellectual, analytic perspective.”

    Dana Perino, White House spokeswoman: “I think that is an interesting constitutional question that people can debate.”

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  5. James Joyner says:

    James is just repeating the White House line.

    Well, no. I say that the broad question of whether the OVP is a purely Executive agency is interesting and debatable; it is. What isn’t debatable is that the OVP has to comply with Executive Orders unless specifically exempted.

    The only questions, then, is whether he has been. And, if so, why hasn’t Bill Leonard been told and, if not, why he’s being allowed to skate.

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  6. anjin-san says:

    The Bush admin considers itself to be above and outside the rule of law. This is news?

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  7. Anderson says:

    The amusing notion of Cheney’s reading classified executive documents, even tho he’s actually part of the legislative branch, has inspired me to art, kind of.

    The problem is, as Jane Mayer noted in another context, Bush’s cabinet doesn’t have any lawyers. The exception, Gonzales, proves the rule. So when Addington comes up with this crap, there’s no one authoritative standing there to say, “oh my god, what utter crap.”

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  8. ken says:

    Well, no. I say that the broad question of whether the OVP is a purely Executive agency is interesting and debatable; it is.

    James, that is pathetic.

    The VP is totally within the executive branch.

    The fact that the constitution makes a member of the executive branch the President of the Senate does not change the fact that he is still in the executive branch.

    You see James the constitution gives the executive branch some influence over one part of the legislative branch. It does not create an entirely new branch that exists between the margins of the two.

    Do we really have to debate this?

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  9. Tano says:

    “Dana Perino, White House spokeswoman: “I think that is an interesting constitutional question that people can debate.” ‘

    Strangely enough, I find myself in agreement with the White House spokeswoman.

    The proper venue for such a debate would be first the House of Representatives, then the Senate, in the context of pursuing their constitutional remedy for such behavior – articles of impeachment.

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  10. M1EK says:

    James, you’re trying to defend the indefensible. It’s not an “interesting question”; it’s an example of the absolute contempt this gang that has taken over your party has for our government, our people, and especially, you guys.

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  11. Er, since the vice-president is the President of the Senate, and has a (tie-breaking) vote in the Senate, it would seem to me that in terms of his formal Constitutional powers he functions as part of the legislative branch at least some of the time.

    That said, most of the vice-president’s job (as defined by tradition and legislation, and implied by the 12th and 25th amendments) lies in the executive branch. And the VP would be acting in his executive branch capacity when reviewing classified information obtained directly from executive-branch agencies – he’d only be acting legislatively if he got classified information via the Senate committee system and it was connected with pending legislation. Furthermore, since the VP doesn’t have oversight powers over the bureaucracy (not being a member of an oversight committee that needs access to classified information to perform that task), any legislative rationale for his accessing classified information would be very weak at best.

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  12. By the way, I agree with James that it’s an interesting question… but because I’m a political scientist who finds interbranch relations in the separation of powers/checks and balances system quite fascinating, rather than an interest in defending Cheney on this particular point.

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  13. Cernig says:

    Hi James,

    Thanks for your response on this.

    Your conclusion is that “of course, he has to comply with Executive Orders, unless the president specifically exempts him.”

    I read you as saying that, in at least this case – where the the OVP is claiming it isn’t covered by a presidential order for activities carried out under another presidential order while fulfilling duties assigned by other presidential orders – the OVP is full of it.

    (That’s surely the only sane position to take and I find arguing over pedantry not directly associated with that conclusion to be a bit facile.)

    The sanctions for breaking this particular EO are clearcut.

    (c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.
    (d) The agency head, senior agency official, or other supervisory official shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error in applying the classification standards of this order.

    As per his own Executive Order, President Bush must, at a minimum, remove Vice President Dick Cheney’s classification authority, but the Vice President’s history of willful disregard of national secrets obviously puts him in the “suspension without pay” or “removal” categories.

    Failure to do so puts the President himself in violation of his own Executive Order.

    Regards, C

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  14. James Joyner says:

    I read you as saying that, in at least this case – where the the OVP is claiming it isn’t covered by a presidential order for activities carried out under another presidential order while fulfilling duties assigned by other presidential orders – the OVP is full of it.

    Essentially, yes, for reasons Chris explains above.

    Failure to do so puts the President himself in violation of his own Executive Order.

    EOs don’t apply to the president since, by definition, they’re orders to his employees. They do, however, apply to everyone also, including the Attorney General or whoever the authorities are here.

    Which EO number is this, anyway? I can’t find that in any of the press reports and there are a lot of them dealing with classified info.

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  15. Anderson says:

    Which EO number is this, anyway?

    12958, as amended. Always check the Froom-man.

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  16. Ugh says:

    Executive Order 12958

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  17. Ugh says:

    Damn you Anderson!

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  18. Steve Plunk says:

    Henry Waxman makes the claim, not Cheney. For gosh sakes how can we take anything Waxman says seriously?

    The whole incident seems to be another attempt by Waxman to discredit the administration. Cheney is violating neither the constitution or statute. If the President chooses to ignore a presidential directive I believe he may since he could void the thing or issue an exemption anyway.

    Look, this thing is still being hashed over by the lawyers so we don’t know what’s going to happen. I expect it to be like the US attorney non-scandal. They are well within the law in doing what they are doing.

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  19. ken says:

    .. since the vice-president is the President of the Senate, and has a (tie-breaking) vote in the Senate, it would seem to me that in terms of his formal Constitutional powers he functions as part of the legislative branch at least some of the time.

    Yes the constitution does give a member of the executive branch some legislative powers.

    Does that put him outside of the executive branch? Nope. Not even debatable. It puts him where he has been ever since the US constitution was adapted – a member of the executive with some legislative power.

    That it is hard for Republicas to understand the US Constitution in this matter is a sign of their limited mental capacity. It is not a sign that the constitution itself is unclear.

    If they don’t like the fact that the OVP is in the executive branch they can try to change it with an amendment.

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  20. Anderson says:

    Damn you Anderson!

    Ugh, please — I have my wife for that.

    (Did you notice the link too? didja? didja?)

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  21. Anderson says:

    Btw, I’ve noticed that the President himself plays a legislative role in disapproving of some bills passed by the Congress — I think it’s called a “veto.”

    So plainly, the President is really part of the Legislative branch.

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  22. cfoster says:

    I might turn out to be wrong, but I don’t believe the veep’s office ever denied being part of the executive. I think rather that it claimed it did not fall under the technical definition of what executive entities are covered under the executive order.

    CNN stated: 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 terminology used in the letter exactly tracks the definitional terminology in the executive order. It might or might not be a bogus claim, but it’s not the same as arguing the veep is not an executive office.

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  23. Anderson says:

    cfoster, I think “entity” is as broad as one gets. How the OVP isn’t an “entity within the executive branch” is beyond me.

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  24. Cernig says:

    Henry Waxman makes the claim, not Cheney. For gosh sakes how can we take anything Waxman says seriously?

    Um, Steve? Dana Perino confirmed the whole thing today while also sidestepping and parsing like mad. Steve Benen has the details.

    Is this the first sign of WDS? (Waxman Derangement Syndrome?)

    Regards, C

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  25. cfoster says:

    But the definition in the executive order isn’t just, “entity within the executive branch.” Rather it is “entity within the executive branch that comes into the possession of classified information.”

    Of course, to deny it is covered, the veep’s office would seemingly have to argue that it does not come into possession of classified information. Like I said, it might still be a bogus claim. But I would rather hear in the media about the veep’s actual bogus claim rather than Waxman’s made up bogus claim, if that’s what it is.

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  26. [...] Normally the Vice President has limited powers and it depends upon his relationship with the President as to whether he can do much of anything at all. During the Bush/Cheney years it has often been joked that Dick Cheney was really the one in control. Little did we know that Cheney really thought his office had special powers and is outside of the Executive Branch. The Los Angeles Times provides background, noting that Cheney has claimed that his office has held a special position for quite some time: For the last four years, Vice President Dick Cheney has made the controversial claim that his office is not fully part of the Bush administration in order to exempt it from a presidential order regulating federal agencies’ handling of classified national security information, officials said Thursday. [...]

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  27. Anderson says:

    Of course, to deny it is covered, the veep’s office would seemingly have to argue that it does not come into possession of classified information.

    And that’s where that particular train runs out of track.

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  28. Dave Schuler says:

    I’d certainly think that this particular theory should be adjudicated. I honestly have no opinion on the validity of this argument and no affection of any kind for Mr. Cheney but what’s the theory on which the Vice President is any more subordinate to the President than the members of the Congress or Supreme Court are based on?

    The Vice President is mentioned, by my count, twice in Article I and three times in Article II. He or she has no executive responsibilities (unless the President dies or is removed from office) whatever. He or she has legislative responsibilities. Does the potential for succeeding the President render him or her subordinate to the President? That would suggest that the Speaker of the House and President Pro Tem of the Senate are, too, which quite clearly isn’t the case.

    Is it that he or she runs on the same ticket as the President? That’s a post-Constitutional development and just suggests that our current process is an incoherent mess but not that the Vice President is subordinate to the President.

    So, what’s the theory?

    The Vice Presidency continues to be best characterized by “Cactus Jack” Garner’s description: not worth a bucket of warm spit. That’s not exactly what he said but you get the idea.

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  29. Wayne says:

    FYI
    The only official Constitutional duties of the OVP are as President of the Senate and to take over duties of the President in case of the incapacity of the President. There are certain duties that later legislation has given the OVP but it is not as many people believe it to be. The VP is only the right hand of the President if that President chooses him to be.

    Remember that the many early VPs were from the opposition party since VP was the one who receive the second number of electoral votes. The President is not constitutionally in direct control of the OVP.

    I am not sure on what is constitutional or not I this case. It would be interesting to see opposite party today as VP and President. Imagine President Bush and VP Al gore.

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  30. Dave Schuler says:

    I want to repeat: I have no opinion on the legalities here or, more accurately, my only opinion is that the office ought to be abolished as obsolete and serving no useful purpose.

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  31. James Joyner says:

    Remember that the many early VPs were from the opposition party since VP was the one who receive the second number of electoral votes.

    There were precisely one VPs of the opposition party: Thomas Jefferson. We promptly amended the Constitution to preclude it happening again except by the President’s choice or some bizarre quirk in the succession process.

    The President is not constitutionally in direct control of the OVP.

    The OVP is not mentioned in the Constitution.

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  32. MrGone says:

    I suppose if he’s not REALLY part of the executive branch then we should be able to see the energy task force members/minutes as they are not covered by executive privilege as claimed. They should be entered into the congressional record.

    These guys are really out of control. When will the remaining 26% finally wake up? I don’t normally say this but impeachment is seeming like the only real path forward.

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  33. spree says:

    Great analysis, although I am left wondering, what protection we have from the “investigating” entity leaking the information they could possibly obtain from Cheney?

    Face it, the Democrats in the Senate and in Congress would sell their mother out if they could “damage” or embarrass” the preisdent, so I think it would be HIGHLY dangerous to provide information that is classified to people that have a nasty habit of leaking classified information.

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  34. [...] –James Joyner has a long must-read-in-full post. A small part of it: Now, because of separation of powers, the president could not enforce an Executive Order requiring Members of Congress or the Supreme Court to submit to these protocols. That could be accomplished only by passage of a law or by the agreement of those branches. But Cheney, despite being the head of a legislative house, is not a Senator. So, of course, he has to comply with Executive Orders, unless the president specifically exempts him…. [...]

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  35. jukeboxgrad says:

    I think such matters are easier to grasp if we remember certain basic organizing principles, like this one: if you’re part of the regime, then there are lots of reasons why your privacy deserves the utmost protection. But if you’re an ordinary citizen, calling on the regime to not snoop on you is a sign that you’re hiding something.

    This was all explained a long time ago, in Pravda.

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  36. jukeboxgrad says:

    cfoster: “I don’t believe the veep’s office ever denied being part of the executive”

    Cheney’s spokesperson (McBride) 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.”

    That statement is cited in various places, like here, here and here. Leonard cited that statement in his letters to Addington and Gonzales (see here).

    Cheney seems to be saying this: because I have legislative functions, this means I’m not part of the executive branch.

    It’s hard to think of any other interpretation for the statement by McBride. This idea didn’t come from Waxman’s imagination: it came from OVP.

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  37. James, my sense of the decision to make the VP the President of the Senate would be to ensure a neutral chair, since he would be chosen by the country at large (or, in the case of no electoral college majority, a majority of senators from the outgoing Senate) rather than representing the interests of a single state’s legislature. Because of the decision to give two senators per state, there would also need to be a tiebreaker more frequently than in the House. (As an aside, I’ve occasionally wondered why the Senate did not include 3 senators per state, so each state would have a senator from each class. It wouldn’t help us now w/50 states, but w/13 it would have reduced the need for a tie-breaking vote.) I’m not bored enough to look in my Federalist Papers or Notes on the Convention to verify my theorizing, though.

    I’d also argue (contra Ken) that the VP has far more legislative power than the president; the former has a vote any time the Senate is tied, even when making decisions that the president himself has no veto over, including the passage of resolutions and joint resolutions, ratification of treaties, and confirming presidential appointments. The presidential veto power only can be exercised at the end of the process dealing with ordinary legislation, when a single bill requiring the president’s signature to be effective is presented to him.

    That said, the VP and his office are clearly functioning as part of the executive when reviewing classified intelligence as part of his duties on the NSC and as a member of the Cabinet, as provided for by statute and modern tradition, so an executive order would seem to be enforceable here, as it doesn’t infringe upon his legislative powers. (An EO that the VP vote a certain way when there is a tied vote in the Senate, on the other hand, would clearly be in violation of the separation of powers.)

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  38. Cernig says:

    Spree, above, hasn’t noticed that the investigating authority is a part of the executive branch too. It just complained to Waxman’s committee that Cheney wouldn’t do what the EO said he should and Waxman took it up. Waxman isn’t looking at the classified material, the Information Security Oversight Office is.

    As for “I think it would be HIGHLY dangerous to provide information that is classified to people that have a nasty habit of leaking classified information”, I can only assume he means Cheney and his staffers here. They certainly have the track record.

    Regards, C

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  39. vnjagvet says:

    It appears to me that the bulk of the VP’s so called “Executive” duties are extra-constitutional.

    To the extent the VP accepts assignments of an executive nature from the President, I suppose, there may be an agreement implied that the President has the discretion to take those duties away at will.

    For example the Warren Commission was created by President Johnson’s executive order which appointed the following to investigate the assassination of John F. Kennedy. Here’s the Wikipedia entry:


    President Johnson, by Executive Order 11130 on November 29, 1963, created an investigatory commission to be headed by Earl Warren. He also appointed the following political figures as members of the commission:

    Congressman Hale Boggs (D-LA)
    Senator John Sherman Cooper (R-KY)
    Former CIA Director Allen Dulles
    Congressman Gerald Ford (R-MI), a future Vice President and U.S. President
    Former World Bank president and diplomat John J. McCloy
    Senator Richard Russell, Jr. (D-GA)
    J. Lee Rankin served as the commission’s general counsel. Future Pennsylvania Senator Arlen Specter worked as an assistant counsel for the commission.

    Warren was then the sitting Chief Justice of the United States. There were members of the other branches of government as well. The Senate did not “Advise and Consent”.

    Did the legislative and judicial members join the executive branch by accepting this assignment?

    I suspect not.

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  40. James Joyner says:

    It appears to me that the bulk of the VP’s so called “Executive” duties are extra-constitutional.

    Much of our modern government is extra-constitutional. The Framers created a very adaptable framework.

    As to the Warren Commission, it had no law making authority; it was merely an investigatory panel. Putting the Chief Justice and senior Members of Congress on it made sense politically, even if it didn’t ultimately have the desired effect of achieving full consensus.

    At any rate, Warren, Ford, and Russell could certainly have refused to serve. They weren’t ordered to participate; the Order merely gave them the ability to do the job that they had, presumably, already agreed to do.

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  41. [...] of the executive branch is perhaps the most absurd thing that I have heard in some time.” Dr. James Joyner nuances: Now, because of separation of powers, the president could not enforce an Executive Order requiring [...]

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  42. I will hopefully address this further at my place soon, but I will stand by my statement. It is one thing to say that Cheney has certain legislative branch responsibilities (meager, though they may be–and they are also almost wholly procedural ones, I would add).

    This does place him in a unique position in terms of the two branches.

    However, to make the claims that Cheney has made, especially when he has asserted executive privilege quite forcefully in the past for his office, does makes these claims amongst the most ridiculous things I have heard in some time.

    And note: he isn’t speaking in some vague theoretical terms, it is about the power he can assert and he is picking and choosing how he defines his office to his own benefit.

    That is highly problematic.

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  43. cfoster says:

    It seems to me that the issue is not the veep’s unique straddle of two branches. It is rather whether the veep is someone the president can order around with executive orders. The fact of the vice president’s dual responsibilities is irrelevant to the question of whether he answers to the president.

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  44. ken says:

    For all those still unclear on the status of the Vice President here are the simple facts:

    1) The VP is a member of the exectutive branch of government.

    2) It is as a member of the executive branch that the VP presides over the Senate with the honorific title “President of the Senate”.

    3) It is also as member of the exectutive branch the VP gets to cast vote breaking ballots in the Senate.

    That is all.

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  45. cfoster says:

    Fine, the vice president is in the executive branch. The question remains – is he an entity within the executive branch over which the president has authority to issue executive orders?

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  46. James Joyner says:

    2) It is as a member of the executive branch that the VP presides over the Senate with the honorific title “President of the Senate”.

    3) It is also as member of the exectutive branch the VP gets to cast vote breaking ballots in the Senate.

    The title certainly isn’t honorific. It’s his primary Constitutional role. He’s not performing an Executive branch function in either role.

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  47. jukeboxgrad says:

    cfoster: “It seems to me that the issue is not the veep’s unique straddle of two branches.”

    It seems to me that the issue is that you’re wrong to claim that OVP embodies some kind of “unique straddle of two branches,” just like you were wrong to claim that “the veep’s office [n]ever denied being part of the executive.”

    As various people have pointed out, the president gets to veto bills. This doesn’t mean he’s a lawmaker. The CJ presides over the senate during impeachment proceedings. This doesn’t mean he’s a senator. It’s not surprising to notice various special inter-branch roles like these, and it’s a bit overwrought (not to mention oxymoronic) to call each one a “unique straddle.”

    “It is rather whether the veep is someone the president can order around with executive orders.”

    In this particular EO, the president did indeed treat “the veep [as] someone the president can order around with executive orders.” Because the EO plainly applies to OVP, unless you want to argue that OVP is not an “entity” in the executive branch. We should also stop thinking of the president as the Chief Executive if we’re going to contemplate that there are parts of the executive branch that report to someone other than him. So much for the famous unitary executive.

    Anyway, this latest creative explanation of yours (that Bush doesn’t have authority over Cheney) is at odds with what Perino said yesterday: “the President gets to decide whether or not he should be treated separately, and he’s decided that he should.” In other words, Cheney doesn’t gain exemption because Cheney claims that “the veep is[n't] someone the president can order around with executive orders.” Cheney gains exemption because The Decider has magically, instantly, retroactively, granted that exemption.

    Greatly adding to the entertainment value of these episodes are the multiple shifting, shifty alibis. Various contradictions are nicely summarized here.

    What we’re witnessing is the worst kind of pathetically transparent ex post facto excuse-making. I know children who are much more skilled at creating plausible alibis that are free of screamingly obvious internal contradictions.

    The bottom line is that Bush has no respect for rules. Even the ones he wrote himself.

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  48. jukeboxgrad says:

    james: “It’s his primary Constitutional role.”

    If OVP’s “primary Constitutional role” is legislative, not executive, I expect that Cheney will now withdraw and apologize for all the times he invoked executive privilege as a way to duck congressional oversight.

    Anyway, you obviously realize that Article 2 establishes a “Constitutional role” for the VP: to cover for POTUS when POTUS can’t do the job. This is arguably much more consequential than breaking occasional ties in the senate. Therefore what you’re calling “primary” is questionable.

    Further, it makes sense that VP would handle classified material in connection with staying informed about executive branch business, so he can take over quickly in an emergency. So the relevant matter (VP handling of classified material) falls squarely within the VP’s executive branch duties under the Constitution, as framed in Article 2. It’s not as if we’re talking about classified material that was handed to VP by congress in connection with his duties presiding over the senate.

    The GOP has turned itself into a joke.

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  49. cfoster says:

    Jukebox,

    I’m saying the issue of whether the veep uniquely straddles two branches is irrelevant to whether the veep is covered under the EO. As for the president claiming to have authority to issue EOs to the veep, the president’s opinion or claim to authority is immaterial to the question of whether the president actually has the authority.

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  50. jukeboxgrad says:

    cfoster: “the issue of whether the veep uniquely straddles two branches is irrelevant to whether the veep is covered under the EO”

    You should explain that to Cheney’s spokesperson MacBride, who expressly floated the ‘straddle’ concept to argue that Cheney wasn’t “covered under the EO.”

    Anyway, you seem to be suggesting that “the veep is[n't] covered under the EO,” but you also seem to be all over the map as far as presenting a rationale to back that claim. If you do have a rationale you’re willing to stick with, maybe you should tell us what it is.

    “the president’s opinion or claim to authority is immaterial to the question of whether the president actually has the authority”

    You should explain that to Bush’s spokesperson Perino, who expressly indicated that Bush has the authority to decide whether or not Cheney is subject to this EO.

    Anyway, I wholeheartedly agree with you: Bush’s “opinion or claim to authority” on almost any matter is highly suspect and almost completely worthless. But we don’t need Bush’s “opinion or claim to authority” to understand that the VP is part of the executive branch. All we need is the Constitution. Common sense also helps.

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  51. jukeboxgrad says:

    It’s Lea Anne ‘McBride,’ not ‘MacBride.’ Sorry about that.

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  52. cfoster says:

    Executive orders are a means by which the president can direct the actions of administration entities over which the president has authority.

    The question, then, is: Is the vice president’s office an administration entity over which the president has authority? There are a lot of good arguments that it presumptively is not.

    However, someone above made the point that, to the extent the vice president has accepted executive tasks from the president, especially executive tasks that involve the vice president’s office having possession of classified documents, the vice president has placed his office under the president’s authority at least to the extent of the president’s authority over the performance of the task.

    I don’t represent that I have the answers, or even that these are the correct questions. However, I’m much more interested in my assumptions being challenged by people who know more about it than I do, than by people with a partisan dog in the fight.

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  53. jukeboxgrad says:

    cfoster: “to the extent the vice president has accepted executive tasks from the president, especially executive tasks that involve the vice president’s office having possession of classified documents, the vice president has placed his office under the president’s authority at least to the extent of the president’s authority over the performance of the task”

    You’ve done a very nice job of answering your own question (or acknowledging that someone else has answered it).

    “I don’t represent that I have the answers”

    Then it must have been a different cfoster who strongly hinted that all this was just a matter of “Waxman’s made up bogus claim.”

    “I’m much more interested in my assumptions being challenged by people who know more about it than I do, than by people with a partisan dog in the fight.”

    Since you don’t have “a partisan dog in the fight,” then I suppose it’s another cfoster who pretended, here (see 6/23/07, 6:59 pm; “everyone is calling Cheney an idiot for something Waxman said about him”), to not be familiar with what McBride said, even though roughly 22 hours had passed since that salient information had been brought to your attention, here.

    The fact is that you’re still promoting your “assumptions” about “Waxman’s made up bogus claim” even though you’ve been shown proof that Waxman’s statement is not “made up;” it’s based on McBride’s statement (if not other statements). If you’re trying to convince us you don’t have “a partisan dog in the fight,” I think you need to try harder.

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  54. cfoster says:

    Oh, but Waxman did dishonestly truncate the vice president’s claim in order to misrepresent it, and it does annoy the hell out of me that he effectively and preemptively derailed the argument.

    It’s fine and all to listen to partisans argue against some straw man about how stupid the veep is that he thinks he’s not in the executive branch. But for me the much more interesting question, and the one I don’t have a political dog in the fight of, is, does the EO apply to the vice president’s office. If so, why; if not, why not.

    As I said, my opinion currently is that presumptively it does dot, but arguably there are facts that might make the question come out the other way. I don’t have a preference about how the question comes out. So, no, I don’t have a political dog in the fight.

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  55. jukeboxgrad says:

    cfoster: “Waxman did dishonestly truncate the vice president’s claim”

    If you have facts to substantiate this remarkable assertion, you should let us in on the secret and tell us where they’re hidden. Especially since you’re claiming to not have “a partisan dog in the fight.”

    What you’re doing is wishing a fact into existence.

    “some straw man about how stupid the veep is that he thinks he’s not in the executive branch”

    It’s not “some straw man.” McBride said what she said. I realize you’re determined to repeatedly pretend otherwise. What you’re doing is wishing a fact out of existence.

    “does the EO apply to the vice president’s office. If so, why”

    It plainly does apply, unless you want to argue that VP is somehow not really part of the executive branch. Which is precisely what McBride tried to do. But you’re making life easy for yourself, and entertaining for the rest of us, by steadfastly ignoring her statement.

    “my opinion currently is that presumptively it does dot”

    This isn’t the first time you’ve expressed that opinion, and this isn’t the first time that I’ve challenged you to provide something remotely resembling a coherent, non-shifting rationale to back it up. Can you do that, without relying on your magic which makes facts come and go at will? If so, there’s no time like the present.

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  56. cfoster says:

    Well, Jukebox, when I put myself in the arbitrary position of ‘wanting’ the order to apply to the vice president’s office (as opposed to not really caring one way the other, but being extremely intellectually curious), I find myself wondering how exactly it does so. Can the president go around ordering the vice president to take on executive functions? Mmm. I don’t see how. Nothing in the constitution says so, and in this instance there doesn’t seem to be any legislation on point, so…

    The best argument I can see is the pres has asked the veep to voluntarily take on some executive duties involving the veep’s office handling classified documents, and the veep has accepted. That seems to me the only obvious route by which the pres can impose orders onto the office of the vice president – that the veep has voluntarily accepted subordination to the pres in the instance of taking on this particular responsibility.

    I’m open to arguments that the pres has authority to impose orders on the vice president’s office by virtue of merely being the president, but they aren’t obvious to me. I don’t deny that might be because I am thick headed.

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  57. jukeboxgrad says:

    cfoster: “I find myself wondering how exactly it does so”

    You’re wondering how the EO applies to VP. It’s not complicated: VP is part of the executive branch, and the EO applies to any “entity” in the executive branch.

    “my opinion currently is that presumptively it does dot”

    You haven’t explained your basis for claiming that Cheney is exempt from the EO.

    “Can the president go around ordering the vice president to take on executive functions? Mmm. I don’t see how.”

    POTUS can delegate “executive functions” to VP because the former is Chief Executive and the latter is part of the executive branch. Yes, there are limits to the former’s control over the latter; POTUS cannot fire VP. But this is a distraction from the central point, that VP is part of the executive branch.

    “I’m open to arguments that the pres has authority to impose orders on the vice president’s office by virtue of merely being the president”

    POTUS “has authority to impose orders on the vice president’s office” because the former is Chief Executive and the latter is part of the executive branch. You can argue that POTUS lacks “authority to impose orders on the vice president’s office” only if you argue that VP is not part of the executive branch. And that’s indeed what Cheney has argued.

    “that the veep has voluntarily accepted subordination to the pres”

    There’s nothing ‘voluntary’ about it. Either VP is indeed ‘subordinate’ to POTUS (except with regard to being firing-proof), or VP is part of the legislative branch, or VP is a fourth branch. This bizarre fourth-branch theory is indeed what Cheney has argued.

    “some straw man about how stupid the veep is that he thinks he’s not in the executive branch”

    This is worth some further attention. You and some other people are trying hard, here and elsewhere, to promote the idea that Cheney never claimed “he’s not in the executive branch,” and that this is just “some straw man” invented by Waxman, a “made up bogus claim.” Please consider the following statement, which James mentioned above:

    The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter.

    As far as we can tell, that text came from OVP (pdf), and it indicates that Cheney is claiming what you claim he never claimed: “he’s not in the executive branch.” That text goes hand-in-hand with McBride’s statement, which I cited earlier.

    That text was noticed months ago by TPM. Back then, James worked hard to defend what OVP said. Your position is more entertaining: pretending OVP never said it.

    I guess you’re not going to explain why you’re doing that, just as you’re not going to explain why you accused Waxman of doing something he didn’t do, and just as you’re not to explain the basis for your “opinion” that Cheney is exempt from the EO.

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  58. jukeboxgrad says:

    Oh yeah, one more thing.

    “in this instance there doesn’t seem to be any legislation on point”

    In James’ earlier post on this subject, he mentions Title 3, Chapter 2, § 106, which discusses how to “enable the Vice President to provide assistance to the President in connection with the performance of functions specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities.” The law seems to take for granted what you find so hard to contemplate: that POTUS can indeed “go around ordering the vice president to take on executive functions.”

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  59. cfoster says:

    But Grad, where do you get the idea the “POTUS can delegate “executive functions” to VP because the former is Chief Executive and the latter is part of the executive branch.” Is there some kind of historical or textual support for your claim?

    And, as to Title 3, chapter 2, section 106, that seems to authorize the veep to hire people if the veep should accept to provide assistance to the President in connection with the performance of functions specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities, the Vice President is authorized. I suppose you could argue otherwise, but it doesn’t seem to me to be legislation authorizing the president to impress the vp into exec service generally , much less for this specific issue.

    Anyway, hurry up with with your arguments. I’m getting pretty drunk here.

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  60. cfoster says:

    “There’s nothing ‘voluntary’ about it. Either VP is indeed ‘subordinate’ to POTUS (except with regard to being firing-proof), or VP is part of the legislative branch, or VP is a fourth branch.” – Grad

    Well, this is clearly a false choice. I mean, clearly, the vp is sort of part of the executive branch and sort of part of the legislative branch – regardless of whether he is subordinate to the executive. And Rahm Emanual’s poster – I wouldn’t put too much stock in it, or wag it into a law school class or anything. It’s just polemics and doesn’t really add much to a discussion of executive power. It’s more of a frat thing than an intellectual thing, and don’t get me wrong, I don’t have anything against frat things.

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  61. jukeboxgrad says:

    cfoster: “where do you get the idea the ‘POTUS can delegate ‘executive functions’ to VP’ ”

    The following is the first sentence, in full, of Article 2:

    The executive Power shall be vested in a President of the United States of America.

    I can’t imagine what “executive power” is, if not “power to delegate executive functions to members of the executive branch of government.” Then again, you might think that VP is not part of the executive branch. Which is what Cheney claimed.

    Also, according the Constitution, the VP has this title, oddly enough: “Vice-President.” The word “vice,” in this context, is typically defined as ‘next in rank.’ Giving the VP this title was an odd choice, on the part of the Framers, if they did not intend the VP to be subordinate to POTUS.

    “Is there some kind of historical or textual support for your claim?”

    Indeed, starting with the title the VP is given by the Constitution.

    “as to Title 3, chapter 2, section 106, that seems to authorize the veep to hire people if the veep should accept to provide assistance to the President”

    It would be good if you paid attention to what the statute actually says. It doesn’t say ‘here are some rules regarding the VP’s ability to hire people, if VP decides, out of the goodness of his heart, to voluntarily carry out instructions issued by POTUS.’ The statute says (paraphrase) ‘here are some rules regarding the VP’s ability to hire people, in order to carry out instructions issued by POTUS.’

    The statute references “the performance of functions specially assigned to the Vice President by the President.” The statute takes for granted that POTUS can ‘assign’ functions to VP. The statute doesn’t suggest that POTUS ‘assigns’ functions to VP and then crosses all his fingers and toes hoping that VP will generously decide to take a break from his busy schedule in order to carry out those functions.

    “it doesn’t seem to me to be legislation authorizing the president to impress the vp into exec service generally”

    I didn’t claim that it’s “legislation authorizing the president to impress the vp into exec service generally.” I claimed that it’s legislation reflecting what’s obvious as a matter of common sense and basic Constitutional reality: POTUS gets to issue orders to VP, along with everyone else in the executive branch. That’s the basic meaning of “executive Power,” the phrase at the heart of Article 2. We don’t need Section 106 to know this is true. Section 106 is just more proof that it’s true.

    “the vp is sort of part of the executive branch and sort of part of the legislative branch”

    Nice job continuing to ignore what OVP actually said: “the Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch.” Then again, maybe you’d like to explain to us why your bogus claims are less ridiculous than Cheney’s bogus claims.

    “Rahm Emanual’s poster – I wouldn’t put too much stock in it”

    The poster is an exact expression of the statement I just cited. A statement you refuse to acknowledge.

    “I’m getting pretty drunk here.”

    I wish you had mentioned that sooner. I wouldn’t want to get between you and your beverage. But when you have a chance, hopefully you’ll address the questions you’ve been ducking. Here’s a quick review: why are consistently pretending that OVP didn’t claim to be outside the executive branch? Why did you accuse Waxman of doing something he didn’t do? And what’s the basis for your “opinion” that Cheney is exempt from the EO?

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  62. jukeboxgrad says:

    I’m also curious about something you said elsewhere.

    “The president could not for instance tell the vice president how to vote in case of a tie”

    Really? How do you know?

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  63. cfoster says:

    This paragraph turns up on answers.com. Unfortunately it doesn’t include citations but rather lists a bibliography of authorities. I don’t vouch for its accuracy, but it mirrors much of my understanding of the office and, fascinatingly, it shares Cheney’s counsel’s idea about the branches to which the veep does not properly belong.

    “The Vice Presidency was an afterthought for the Constitutional Convention, put into the document in order to provide for orderly succession without resorting to election of someone from Congress to fill the vacancy. The Vice President is not a member of either the executive or the legislative branch. Constitutionally, the Vice President is not a subordinate of the President, who has no power to issue orders to the Vice President and who cannot remove him from office. (The Vice President can be removed only by impeachment.) But Vice Presidents have found that the way they gain influence in Washington is by subordinating themselves to the President. By doing so, they have become, since Dwight Eisenhower’s administration, part of the inner circle of senior political advisers to the President.”

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  64. cfoster says:

    Somebody is saying that answers.com gets its info from wikipedia. If that’s true then never mind.

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  65. cfoster says:

    answers.com credits the information in the paragraph above to

    US Government Guide information about Vice President of the United States
    The Oxford Guide to the United States Government. Copyright © 1993, 1994, 1998, 2001, 2002 by John J. Patrick, Richard M. Pious, Donald M. Ritchie.

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  66. Ron Holland says:

    Cheney acts as if he is above the law.

    Dick Cheney is the power behind the throne. Of course, he and Bush believe they are exempt from Presidential Executive Orders.

    Still, Presidential Executive Orders during the War on Terror can be used by the executive branch to further destroy the Constitution and our liberties.

    Read the Final Presidential Executive Order from the online book, “The Swiss Preserve Solution” at http:// http://www.swissconfederationinstitute.com/swisspreserve14.htm

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  67. uggabugga says:

    [...] Digby axis)Michael P.F. van der GalienThe Moderate Voice (lots of excerpts and links to other blogs)Outside the BeltwayAfter Downing Street (3 newspaper editorials) posted by Quiddity at 6/23/2007 02:24:00 PM 0 [...]

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  68. [...] position of the VPOTUS. I don’t disagree with his political analysis about this specific dispute here and here, either, although I think the legal questions are distinct. And with due respect, I [...]

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