Balkinization  

Friday, June 22, 2007

Dick Cheney and the Not-So-Unitary Executive

JB

Vice President Dick Cheney and his consigliere David Addington have long been associated with the doctrine of the "Unitary Executive," the notion that all executive functions are vested in the President of the United States of American and hence that the President has the right to direct all executive officers, who, in turn are required to obey his orders.

All except the Vice-President, apparently.

The New York Times reports that Cheney now takes the position that he is not bound by an executive order requiring all entities within the executive branch to report on how they obtain and use classified information because he is not just another part of the executive branch. The Vice-President's office, he contends, is unique. As President of the Senate, he exercises legislative functions, including the right to cast tie votes in the Senate. (Of course the President also has legislative functions-- he can veto bills-- but that has never stopped him from claiming that he is the chief executive officer.). The Times explains:

For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the office in charge of overseeing classification in the executive branch objected, the vice president’s office suggested that the oversight office be shut down, according to documents released today by a Democratic congressman.
For years Cheney and Addington pushed the theory of the unitary Executive in order to avoid anyone looking into what they were doing. Once it became clear that the executive branch wanted to know what they were doing, they decided they were no longer part of the executive branch.

It is by now obvious, if any further proof were necessary, that Cheney and Addington have never been particularly interested in defending constitutional principles. They do not seek to preserve executive power. They seek to preserve their own power. They discarded the canard of the unitary executive as soon as it became inconvenient. (NB: The basic idea of a unitary executive, by contrast, is not spurious; some versions of the theory are quite plausible, just not Cheney and Addington's version. I discuss some of the different conceptions here).

The New York Times article leaves a tantalizing tidbit: Cheney's office complied with requests for data on classified documents in 2001 and 2002. "But starting in 2003, the vice president’s office began refusing to supply the information. In 2004, it blocked an on-site inspection by [the Information Security Oversight Office], routinely carried out across the government and intended to check whether documents were being properly labeled and safely stored."

So the question is this: Why did Cheney change his mind at the end of 2002? What did his office start doing in 2003 that gave him reason to prevent oversight even by other parts of the executive branch?

Comments:

I see no reason why Cheney should not face immediate impeachment. Oh, wait, the Congress is gutless and spineless.

Forget I mentioned it.
 

It's all about maintaining power over the country and invoking the most silly arguments to do so.

The unitary executive is patently unConstitutional. The non-executive branch vice-president is delusional.

Cheney has now become the embodiment of a bad Saturday Night Life skit. More is the pitty than neither Bush nor Congress will fire is ass (doesn't his non-executive argument embrace insubordination? He's not accountable to Bush's own executive orders?).
 

Actually, Congress has an "executive" function in declaring war (and arguably in the Senate's role in regards to treaties and executive branch appointments). And the Supreme Court has an "legislative" function too in the guise of the Chief Justice who presides over the Senate during impeachments (not to mention in interpreting and even nullifying laws). And, speaking of impeachment, it would appear there that Congress has a "judicial" function. I'm sure we could could on and one here listing such instances.

Mixed government: where your categorization does not wholly determine your function.
 

Your point, and I'm sure you have one, is....?

Yes, the vice presidency has a limited legislative role. No, that doesn't exempt it from executive (and legislative) oversight of functions carried out in its executive role, such as that role is.
 

Presumably Congress can now compel document production and under-oath testimony from Cheney, Addington & Co via congressional resolution. After all, if OVP is part of Congress, it's subject to congressional decisions about how to organize and run Congress. And, jeez, the SCOTUS can't review Congress's decisions about how to run Congress, now, can it?
 

It should be a relatively straightforward matter to impeach the President of the Senate.
 

The scary part is that with the current makeup of the Supreme Court, Cheney might successfully make a case that the Vice President's office enjoys the privileges and immunities accorded to both the executive and the legislature, and thus is able to position himself as effectively, or at least minimally, immune to control by either. If Cheney succeeds in surviving unimpeached--or worse if an impeachment attempt is made and fails--he will have established the precedent for a new power center within the constitutional structure that future administrations are likely to want to exploit for their own ends. This is a true constitutional crisis that if not handled adeptly, may reshape American politics.
 

Professor Balkin:

The VP is not an executive department under the control of the President. Rather, the VP is its own constitutional executive office and is arguably not required to follow the instructions of the President. Therefore, I am unsure how the Unitary Executive theory would apply to a dispute over whether the VP has to report his activities or that of his staff to the President.

If the VP told the President to take a hike and declined to provide information that he had requested, exactly what can the President do? The President cannot fire the VP and the VP is arguably not required by the Constitution to follow the President's orders.
 

Bart:

That's pretty reductive reasoning. The Constitution creates three branches of government. ANY governmental function must fall within one of these branches.

This does not mean that sometimes people can't wear two hats. For instance, the President is the Chief Executive but also has a role in signing or vetoing legislation. Both Congress and the President have a role in appointing judges. The Chief Justice sits as presiding officr in impeachment trials.

Nonetheless, the system of government is one of checks and balances. The fact that someone wears two hats does not bring the person outside of normal oversight channels.

For instance, the fact that the President has a role in vetoing or signing legislation does not mean that when he is exercising EXECUTIVE functions, he is not subject to normal oversight channels, including judicial review and congressional oversight.

So, the Vice President wears two hats. AT MOST this means that when he is acting as a legislator, he is subject to oversight through the same channels as a member of Congress and when he is acting as an executive, he is subject to the same channels of oversight as a member of the Executive branch. So, in practice, Cheney might be able to tell the executive regulators that documents that were generated out of his role as President of the Senate, or the office he uses when in that role, could not be inspected. Those documents and offices would, however, be subject to inspection by Congress.

What Cheney wants to do is something completely different-- say that he is completely outside any oversight by anyone. But that is clearly not true. Bear in mind that Vice Presidents actually CAN ONLY exercise those executive functions delegated to them by the President. In other words, Bush may not be able to fire him, but he can simply tell him to go to a bunch of funerals and stay out of the White House. Indeed, that is what most Vice Presidents have been told throughout history.

Dick Cheney isn't entitled to convene an Energy Task Force, or perform any other executive duties, unless Bush authorizes him to. Bush can clearly condition that authorization on his submission to oversight. There is no colorable constitutional question whatsoever here.

Cheney just makes things up. He relies on the fact that no court will review his actions.
 

Dilan:

I am not advancing Cheney's argument that he does not have to report to the President because the VP's office has a quasi legislative role. Rather, I am suggesting that the VP does not have to report to the President because he is not a subordinate of the President.

Exactly under what authority do you propose that the President compel the VP to report to him?

The VP has no executive power and is not a department of the executive. He is simply a spare President in waiting.
 

Why isn't Bart correct when he says that the VP is under no duty to take orders from the President. It would, to be sure, be a major political crisis if the VP declared his/her independence--after all, wasn't that the case with John C. Calhoun and Andres Jackson--but was it a "constitutioal crisis." And so long as Congress appropriates funds to something called the Office of the VP, then I'm not sure why (s)he can't convene meetings on any topic at all.

So doesn't this further illustrate the dysfunctionaity of having a separate VP serving a fixed term who in no plausible sense is elected by the people to pursue his/her own policy goals, etc.?

The only real solution to the Cheney problem (projecting into the future)is to eliminate the office, which more and more is revealed to serve no truly useful purpose.
 

I start from the premise that the authority of any United States governmental office (let's avoid the term "entity" here), including the OVP, is necessarily only that which is granted by the Constitution.

I can conceive of a theory or theories which might grant authority on some sort of natural law or "exigencies of wartime" argument. I may not accept it, and in fact would find a natural law argument for extra-constitutional powers of the *Office of the Vice-President,* which seems clearly intended as a mechanism to allow for orderly Presidential succession in case of emergency, very strange; but I can accept that such an argument is possible. If so, however, it would be more than novel, and should be made explicitly and in sufficient depth so it can be addressed meaningfully, not just asserted or implied.

Otherwise, my review of the Constitution does not indicate that any power *is* vested in the OVP, aside from casting tiebreaker votes in the Senate. This is provision relevant to executive power:

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

I don't see how this can be interpreted to vest any executive authority in the OVP.

On the other hand, I think that clearly the President has the power to delegate Executive authority to the OVP for at least some functions (leaving aside whether there are any limitations on that) - just as he could to anyone else. But if this is the source of OVP authority, I don't see why the exercise of such delegated Executive authority would not be subject to Executive governance and oversight, and the rules which otherwise apply to the Executive.

So as far as I can see the OVP can only exercise governmental authority (1) as delegated by and subject to the regulation of the Executive i.e., the President; (2) by virtue of an unidentified (by me, at least) extra-constitutional source for the OVP's governmental authority, in which case it seems to me we better get very clear about what that is and why; or (3) without a valid legal basis.

Bart, I'd probably be particularly interested in your response.
 

I've always suspected Bart is a half-wit. And when I see something like this:

"If the VP told the President to take a hike and declined to provide information that he had requested, exactly what can the President do?"

that suspicion is confirmed.

Hmmmm... Let me ponder that.

Well, from a purely short-term perspective, Bart, you're probably right. He can't do much. Maybe go punch the Veep in the mouth or something. Or, he could exercise a little decorum and punish the Veep in a way that hurts more: reduce his power.

I can think of two easy ways to do that. First, the President can revoke the privileges and duties he has given the Veep. He could ban the Veep from Cabinet meetings, remove him from the National Security Council, and replace him with other "non-executive" appointees on the various military and foreign policy advisory councils on which he serves (at the President's pleasure). In other words, cut him out of the loop. For Dick Cheney, that'd be like cutting off the supply of virgin blood that keeps him fully functional.

Second, and in the longer term, the President could submit a budget that does little more than pay the Veep's salary, keep, and whatever costs serving as President of the Senate may create. He can limit his travel budget, his services budget, his staff budget, etc. Moreover, the President could lobby Congress to amend the various provisions of Title 3, Chapter 2 of the U.S. Code so as to place statutory limits on the Veep's hiring and spending powers.

So Bart, maybe the President can't fire the Veep, a la Donald Trump, but he sure as heck can reduce his role to that of the figurehead/insurance policy the Founders intended him to be.
 

Bart:

Now that I see your second post, I actually don't think we are that far apart.

The Vice President is a spare President in waiting. The President can't fire him.

But to the extent he exercises executive authority, it is delegated to him by the President. And the delegation can be conditioned on him submitting to oversight as anyone else exercising executive authority would be.

If he refuses to submit to such oversight, the President can't fire him, but he can revoke his authority.

Do we agree?
 

Someone will have to explain to me why the VP is not subject to Congressional control under Article I, Sec. 8, cl. 18:

"To make all laws which shall be necessary and proper for carrying into execution ... all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."
 

John R. Christiansen said...

Otherwise, my review of the Constitution does not indicate that any power *is* vested in the OVP, aside from casting tiebreaker votes in the Senate. This is provision relevant to executive power:

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

I don't see how this can be interpreted to vest any executive authority in the OVP.

On the other hand, I think that clearly the President has the power to delegate Executive authority to the OVP for at least some functions (leaving aside whether there are any limitations on that) - just as he could to anyone else. But if this is the source of OVP authority, I don't see why the exercise of such delegated Executive authority would not be subject to Executive governance and oversight, and the rules which otherwise apply to the Executive.

So as far as I can see the OVP can only exercise governmental authority (1) as delegated by and subject to the regulation of the Executive i.e., the President; (2) by virtue of an unidentified (by me, at least) extra-constitutional source for the OVP's governmental authority, in which case it seems to me we better get very clear about what that is and why; or (3) without a valid legal basis.

Bart, I'd probably be particularly interested in your response.


I completely agree with your take.

In the case at hand, while the President cannot compel the OVP to report to him, the President granted the OVP the power to receive and review classified information and can summarily strip the OVP of that power.
 

Has anyone even asked the Vice President if he intends to run for a third term?

I know that he has said that he will not make a run for the Presidency, but the 22nd Amendment does not mention term limits for the Vice President.

It is hard to imagine Cheney taking all this power for himself, and then giving it up to anyone, let alone a Democrat.
 

I guess I would add to that --

Whatever the intent of the Framers, it is important to remember that the post-FDR Republicans who jammed the 22nd Amendment through (the same people who Cheney considers his intellectual parents), must have felt the Vice President had little power to say and do much of anything.

If those conservative Republicans felt that the Constitution gave a Vice President, especially a liberal Vice President, any sort of power, it would have been a very simple thing for them to include the Vice President in the 22nd Amendment term limit provisions.
 

from the LA Times, 6/23/2007

"The executive order that Bush issued in March 2003 covers all government agencies that are part of the executive branch and, although it doesn't specifically say so, was not meant to apply to the vice president's office or the president's office, a White House spokesman said.

The issue flared up Thursday when Rep. Henry A. Waxman, D-Calif., criticized Cheney for refusing to file annual reports with the National Archives and Records Administration, spelling out how his office handles classified documents, or to submit to an inspection by the archives' Information Security Oversight Office.

The archives, a federal agency, has been pressing the vice president's office to cooperate with its oversight efforts for the past several years, contending that by not doing so, Cheney and his staff have created a potential national security risk.

Bush issued the directive in response to the Sept. 11, 2001, terrorist attacks as a way of ensuring that the nation's secrets would not be mishandled, made public, or improperly declassified.
 

so Herr Busch signed the law, but neglected to mention that it didn't cover Herr Cheney or himself.

interesting.

it's hard to imagine the President, constitutionally, being able to delegate to a part of the government not entirely under his own control or that of Congress.

doesn't this violate some sort of delegation of power clause or responsibility for Herr Busch to respect the constitution and faithfully execute his office?

Herr Busch is begging to be impeached.
 

sorry, Executive Order, not law.
 

And again, the best that can be said is Herr Busch is once again promulgating a questionable expansion of his power at the expense of public oversight.
 

The President just settled this kerfuffle in favor of the VP. Looks like Waxman will have to find another "constitutional crisis" to manufacture. Heaven knows, Congress has nothing better to do...
 

The only way the WH could let Cheney off the hook is by retroactively changing the rule that subjected the executive department to the requirement.

Or he could display a signed document officially delegating the decision to Cheney's office, dated before the decision was made. Otherwise these bozos are just making the rules up as they go.

Since Bush and Cheney have done neither, the issue has not gone away.

If Bart is referring to Perino's nearly incoherent remarks, this does not count, even if it can be interpreted most liberally.

The problem is that Cheney arrogated to himself powers which the VP does not possess, and declared his office to be off-limits to either executive or legislative oversight.

Of course, those who believe in a unitary executive will gush forth (as above) opinions that only mention the President, but I think Congress should investigate to see just other rules they've made up as they've gone, starting with this one.
 

why did the bush admin decide to exempt themselves from compliance in 2003.

how can bush simultaneously argue that the OVP is not bound and then say he's exempted OVP anyway.

rahm is leading the charge by cleverly arguing that since the OVP is not part of the EB, they should submit their own, separate budget request.

this is only going to drive bush approval ratings lower. what's he at 26% and still plugging Gonzo.

they will lose in the courts on this one too. they are begging for SCOTUS rebuke.
 

keep in mind, when he starts dipping this low, he's only losing crazies.

i wonder how low he'd have to go to lose Bart?

or, better put, what's it going to take to shock BDP's dormant conscience into objection?
 

The President just settled this kerfuffle in favor of the VP.

Oh well then. Alles ist klar.
 

rhruvC2H50H said...

The only way the WH could let Cheney off the hook is by retroactively changing the rule that subjected the executive department to the requirement.

This is a presidential order to his own executive, not a criminal statute. There is no "hook." The President can interpret his own orders any way he pleases.
 

According to Bart, the President can and does operate the Federal government using the same rules as CalvinBall.

Good to know. It sure increases my respect for the rules, when President Bush can retroactively change their meaning.

Oh, and this isn't a big deal, just a "kerfuffle" -- you know, a lot less important than Nancy Pelosi's web page having a picture of a Canadian soldier.
 

The President just settled this kerfuffle in favor of the VP. Looks like Waxman will have to find another "constitutional crisis" to manufacture. Heaven knows, Congress has nothing better to do...

# posted by Bart DePalma : 11:52 AM

In view of Cheney's claim to not be part of the Executive, then we havven't a VP, so we can simply cut the fundings to and associated with that office and its functions and invest it where it will have constructive effect.

In short: Bushit settled nothing; and Cheney's anti-Americanism is not made legal by the vindictive little prick "decider" who cares as much for the rule of law as do you and your party-before-country: not at all.

The US is foremost a system of laws. Waging war on that system is treason. If that's your idea of fuck-you law-abidingness, then you're as much an enemy of this country as Bushit, et al.
 

Let's review: Dick Cheney was bound by a presidential executive order to safeguard classified materials. Cheney ignored the E.O., exempted himself from its instructions, and mishandled secret information. The federal agency responsible for oversight had a few questions about all of this, which Cheney ignored, insisting that he's not part of the executive branch of government. The Vice President then decided he'd like to resolve the questions by eliminating the oversight agency asking them.

Kristol believes this is "reasonable enough"? If Vice President Al Gore had conducted himself the same way, would Kristol come to the same conclusion? (As for some "bureaucrat" checking to see if the OVP properly locked up its safe, we're not just talking about oversight; this deals with the willful mishandling of classified secrets in a time of war. That Kristol takes a rather blase attitude about the whole thing speaks poorly to the right's credibility on national security.)
- Steve Bennen, TPM
 

This is a presidential order to his own executive, not a criminal statute. There is no "hook." The President can interpret his own orders any way he pleases.
# posted by Bart DePalma : 8:48 PM

C'mon BDP...The VERY language of the executive order spells out that it applies to "the President and, in the performance of executive duties, the Vice President" Sec. 1.3

You gotta do better than "he can interpret it anyway he pleases." This is not some nebulous constitutional precept or a vaguely worded statute...the scope is clear by the very terms of the long-standing exeuctive order MODIFIED by Bu$hCo. and ISSUED by Bu$hco.

This is NOT subject to some reasonable debate. It's just another rancid power grab by the nascent empire.
 

Schatten, the problem is that the ultimate arbiter of what an EO means is the president, not the courts or anyone else.

So he could interpret the EO in question to mean "strawberry ice cream for all Executive personnel on Fridays" and other than looking ridiculous -- as with this case -- no one could do anything about it.

This is one of those creepy, Bart-is-basically-right-about-this occasions. Have a drink.
 

Not only is Bart right about the E.O., Anderson, but (technically) Cheney IS on the Senate payroll too:

"... I spend a fair amount of time on Hill matters. Part of that is because of my background in the House of Representatives, and part of it because my continuing job as Vice President is in the Senate. Most people don't realize I'm actually on the Senate payroll. That's where my paycheck comes from . . . ."

http://www.time.com/time/nation/article/0,8599,1548061-3,00.html

The Oxford Guide to the United States Government states:

"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.)"
 

Bart wrote:
In the case at hand, while the President cannot compel the OVP to report to him, the President granted the OVP the power to receive and review classified information and can summarily strip the OVP of that power.


So the president can give the OVP permission to view classified documents - can he take it away?

Also, if, as you suggest, the president has no oversight whatsoever of the OVP, other than breaking ties and replacing missing presidents, what's the point of having a VP? To grab classifies documents and leak them? Apparently, by the OVP's track record, they've done.

With no accountability or balance/check of power, its a clear weakness in the structure of the government.
 

No accountability or balance/check of power . . .

What part of "the Vice President can be removed by impeachment" are you having trouble with?
 

The problem with impeachment is only political, ie getting the votes. It is clear the law has been wilfully broken many times by both Bush & Cheney (not to mention the RoveWolfRumPerlFeith Coalition), but mentally/emotionally, the entire nature of American political reality has been turned sideways by this crew. It's almost impossible for someone immersed in consensus reality to perceive the depth and nature of the change. A de facto Coup d'Etat has taken place, a seismic shift that has not yet reached the surface awareness but will shake loose and destroy the foundations of American representative democracy. This is the very crisis the Founders feared; yet we have faced and corrected other such crimes in the past. Right now the essential political task is to stop 'discussing' whether the wiretapping was necessary, and start using the work 'illegal' whenever mentioning a Bush/Cheney action. There is no doubt the wiretapping was illegal; dressing it up in "necessity" is camouflage.
 

If the wiretapping was necessary, the the President is empowered to perform necessary acts during wartime, how could it be illegal? Maybe there's some other "law" you think was "clearly broken" many times by both Bush & Cheney -- care to cite to a specific Code section -- then we can get into your allegation about the entire nature of American political reality has been turned sideways "mentally/emotionally".
 

Charles, my point was that Cheney is flouting executive orders and law based on a fallacious claim of not being part of the executive. What branch of the government do you think the OVP is part of?
 

I don't think the OVP is exclusively part of the Executive Branch, if that's what you're asking.
 

But, then again, we probably need to define "OVP". If I was forced to make a choice, I think the Vice President himself is part of the Legislative branch -- just Constitutionally speaking, that's where the Vice President's powers are VESTED -- as President of the Senate, that's where he gets his salary. But that artificial choice is about the same as "Yes or no: have you stopped beating your wife?" My best answer is that the Vice President is not exclusively within the Executive or Legislative branch. Cheney's employees within the Executive branch need to abide by all the rules intended to affect those in the Executive branch. Cheney does, however, employ staff who are cross-over / Senate employees and therefore not in the Executive branch.

I hope that helps clarify my position.
 

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