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.
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
