by publius
The criminal enterprise that is our Vice President’s Office continues apace. Via Big Media Benen, I see that Waxman’s House Oversight Committee learned that the Vice President’s Office doesn’t consider itself subject to laws governing the executive branch:
The Oversight Committee has learned that over the objections of the National Archives, Vice President Cheney exempted his office from the presidential order that establishes government-wide procedures for safeguarding classified national security information. The Vice President asserts that his office is not an “entity within the executive branch.”
This pretty much speaks for itself, particularly that last line. We can whine and complain and say “unfair!” all we want, but it won’t really matter. The only way to change things is to punish the behavior. If you want the Vice President (and future ones) to abide by the rule of law, there has to be consequences for breaking the law. That’s also true of the war crimes that Rumsfeld (and probably Cheney) authorized. If you want to prevent future administrations from committing war crimes, you have to prosecute the guilty parties. That will get their attention. Nothing else will.
For what it’s worth, that’s why the prosecution of Libby is an unambiguous public benefit. It puts future administrations (Republican and Democrat) on notice that there are consequences to treating laws as advisements, and investigations as things not worthy of their attention.
Because of Nixon’s pardon and the flame-out of Iran-Contra, executive branches think they can pretty much do what they want. If you want to change that mindset, you have to inflict punishment. Otherwise, they’ll keep doing it. It’s not difficult.
Maybe we could begin by passing a law reaffirming that the Vice President is in fact part of the executive branch and classifying intentional destruction of official classified records as a criminal offense. That would raise the stakes of their little “the Vice President has special constitutional authority” argument.
[UPDATE: Alternatively, as DCA proposes, Congress could defend the VP’s Office, except for Cheney. A more narrow strategy would be to defund certain individuals — e.g., prohibit David Addington from drawing a salary. I suppose this would raise constitutional issues though. For instance, could you defund an Article III judge’s clerks and support staff?]
“Maybe we could begin by passing a law reaffirming that the Vice President is in fact part of the executive branch”
Would that be constitutional? Either the VP is according to the constitution as interpreted by the SC, or isn’t, in which case Congress can’t do anything about it (can they?), so wouldn’t the SC throw it out regardless?
Or, Congress could simply defund the entire Office of the Vice President, leaving only Cheney. Certainly within their power.
Or, Congress could defund Cheney, on the pretext that he’s not part of any known branch of government.
Impeach them now.
Either the VP is according to the constitution…
begin by passing a law reaffirming
I think the presumption is that the VP is part of the Exec Branch according to the Constitution.
Pull the Secret Service detail, if Cheney’s not executive. Then send him on consecutive duck hunting trips.
It sure looks like the Vice President is part of the Executive Branch. From Article II, Section 1:
“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows”
Rilkefan: Would that be constitutional? Either the VP is according to the constitution as interpreted by the SC, or isn’t, in which case Congress can’t do anything about it (can they?), so wouldn’t the SC throw it out regardless?
It’s possible, I suppose, that the Supreme Court would declare the office of Vice President of the United States to be a fourth branch of US government, hitherto undefined, outside the checks and balances envisaged by the three original branches of government.
But is it likely?
The basis for the argument seems to be that the VP can preside over & break ties in the Senate. It is, of course, a really stupid argument. How many times has Cheney cited “executive privilege”? Zeroing out his budget is not a bad idea.
The Vice President asserts that his office is not an “entity within the executive branch.”
Can he be impeached for that?
Not “Can Congress/the Senate muster the votes to impeach him”, which is a different argument, but as a matter of law: if the Vice President of the United States has declared himself to be a fourth branch of government, outside the checks and balances of Executive, Judiciary, and Congress, ought he not to be impeached?
(I already asked this question in the Good Americans thread, but it was offtopic there.)
I think only the Medium Lobster could adequately describe the exact location and definition of Cheney’s Office of Vice President.
Cheney’s argument is, to be charitable, novel. Aside from the plain text of the Constitution, it is refuted by a high-level org chart from the GSA as well as the White House web site, which correctly lists the President’s Cabinet–including the Vice President–as part of the Executive Branch.
To someone unfamiliar with the niceties of Constitutional law, this looks monumentally stupid. If being monumentally stupid were an impeachable offense, I’d say go for it.
That is, of course, if Cheney said what Waxman said he did. Not saying he didn’t, but if he said it in email, it should be pretty easy to provide a quote in context.
Do not taunt the Office of the Vice President.
In a statement e-mailed to the Blotter on ABCNews.com, Cheney spokeswoman Megan McGinn said, “We are confident that we are conducting the office properly under the law.”
Of course, previously Cheney’s spokesperson also said w.r.t. the ISOO “this has been reviewed and it’s been determined that the reporting requirement does not apply to [the OVP], which has both legislative and executive functions.”
“It’s possible, I suppose, that the Supreme Court would declare the office of Vice President of the United States to be a fourth branch of US government”
No, it’s not possible. My attempted point was that the Congress can’t pass laws about what’s constitutional (I suspect) so a law reaffirming the Constitution isn’t constitutional. You might have noticed I started my comment with a sentence about that point, indicating by the standard rules of prose that that’s what I was talking about.
The Congress ought to use standard means of dealing with rogue executive elements up to and including impeachment.
Jes, the courts basically take the position that “a high crime or misdemeanor” can be interpreted however Congress chooses. This is an abuse of power as well as being stupid, but there are other things that I’d rather impeach Cheney for.
Slarti, Cheney’s made this argument before. For instance, here is an explanation why he does not have to disclose how many people are on his staff or include them in federal directories:
the Medium Lobster
we’re nearly upon the 1 year anniversary of the Silencing Of Fafnir.
My attempted point was that the Congress can’t pass laws about what’s constitutional (I suspect) so a law reaffirming the Constitution isn’t constitutional.
The Congress wouldn’t pass a law stating that “X is constitutional.” They would pass a law that says “X.” If X is constitutional, the SC would have no reason to overturn it. Right lawyers?
And even if they did pass a law saying that X is constitutional, I’m not sure the SC would have any reason to overturn that law if it was correct. Lawyers?
“When I interpret the Constitution,” Cheney said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“Not part of […] but attached to” the Executive? The OVP is teh supplément? Christ, I hate the evil version of postmodernism.
Tim has it exactly right! And besides hunting with Scalia, a little shopping in Bahgdad with McCain is in order.
The Congress ought to use standard means of dealing with rogue executive elements up to and including impeachment.
Yeah, right. As if.
What is more likely to happen is that the Office of the Vice President is simply going to file any requests for information in their wastebaskets, politely tell Rep. Waxman and his Committee to go Cheney themselves; and in “defense” of their actions, cite some legalistic malarkey hoked up by their house lawyers. Then, even assuming Congress will be outraged enough to actually do something, fight the thing out in the courts until about January, 2009, when the whole issue will become moot: since Congressional Republicans (those who are still there in 1/09) will suddenly rediscover the glories of Legislative-Branch oversight, and make d*** sure that no future VP will ever be able to claim this nonsense again.
This is, after all, the Administration which has crowed about its practice of “making its own reality” – as long as they can get away with it during their tenure, who cares?
Defunding him would make him declare which branch he belonged to in a hurry I suspect. Actually, that’s likely the way to resolve this. Where does the money that pays his salary come from? If it’s executive branch money, I’d say that settles it, or isn’t it that simple?
What does Cheney think the ‘vice’ in Vice-President means?
Slarti: To someone unfamiliar with the niceties of Constitutional law, this looks monumentally stupid. If being monumentally stupid were an impeachable offense, I’d say go for it.
Cheney wouldn’t be impeached for being monumentally stupid, but for declaring himself to be a fourth branch of government.
Sebastian: What does Cheney think the ‘vice’ in Vice-President means?
Ask Jane Austen.
What does Cheney think the ‘vice’ in Vice-President means?
As I said in the other thread, Cheney apparently thinks of himself as a Class Five Full Roaming Vapor.
“What does Cheney think the ‘vice’ in Vice-President means?”
What Congressional Republicans think is an impeachable offense.
I think there’s a reasonable argument to be made that the Vice President, as President of the Senate, is in fact part of the legislative branch.
But I suspect that is not the argument the VIce President is making.
The OVP continues with its trend of doing whatever the hell it wants, even in violation of the law… They blow off their own administration…
The whole “President of the Senate” argument is dumb. He presides, that’s it. He only gets to vote on as a tie breaker, he can’t initiate legislation, he doesn’t serve on committees – he’s no more a part of the legislative branch than the Chief Justice is part of the executive because he swears in the President.
Impeach him.
I rather doubt that’s impeachable, although his noncompliance with the law might prove to be.
Of course, Article I also mentions the President (eg Section 7, on vetoes). So maybe the President is also not part of the Executive Branch, because of his legislative function.
publius- typo in the update: “defend”
For instance, could you defund an Article III judge’s clerks and support staff?
Yes as long as you continued to pay the judge’s salary (which is, IIRC, required by the Constitution, absent impeachment).
But I don’t think you could single out specific clerks by name, or specific judges’ staffs by name.
I don’t know, I think that would have to be barred by the prohibition on Bills of Attainder, right? Not up on that clause currently.
No, I mean on separation of powers grounds. Can Congress effectively fire the clerks & secretary’s & suspend the Westlaw access of judges it doesn’t like? Doesn’t seem kosher.
I propose that Congress simply add a proviso to its appropriations for the executive: none of these funds shall be used in support of any office that is not a part of the executive branch, or that is not subject to the rules and policies that govern the executive branch. Any assertion by a recipient of these funds that s/he is not a part of the executive branch, or is not subject to those rules, shall cause him or her to forfeit all monies appropriated in this bill.
I don’t know, how is the judicial branch funded now? Obviously each individual judge gets his salary that cannot be reduced, but I don’t see why, say, Congress couldn’t declare that for next year funding for all judges in the N.D. Cal. is limited to their respective judicial salaries. It seems only a short step from there to singling out individual judges. Nothing would keep judges from turning around and paying their clerks from their own salaries, of course.
I think this came up in con law one day (not the one I took from John Yoo), and the prof seemed to think that congress could totally defund the federal judiciary, except for their salaries. That’s obviously different from singling out one judge.
Besides, if congress really doesn’t like a particular judge, they might as well go ahead and impeach him/her, which, one would think, would be easier than going after the Pres/Veep.
hilzoy – I’m not sure that would work, as AFAICT the Veep’s office is making the argument that they are not an “entity within the executive branch” within the meaning of E.O. 12958, as it’s essential claim (per Katherine’s link upthread) is that it is part of both, and thus not “within” the executive branch – or at least not wholly within it. Better to just not provide a line item in the budget for “office of the Vice President” or whatever it is. Or better yet, just impeach the b@stard and his boss.
I still can’t believe Bush hasn’t gone to Cheney and said “what do you mean you don’t have to obey my executive orders?” I guess they likely worked out this arrangement whereby Cheney can be shielded behind his cloak of darkness and thus do the really dirty work sight unseen.
There’s lots of things you could technically do under the letter of the Constitution. Arguably, since the lower federal courts exist solely by virtue of Act of Congress, Congress could legislate all the lower federal courts out of existence, and recreate them the next day. Of course, since they’d be new courts at that point, they’d all need new judges! Occasionally someone actually argues that Congress should try this.
Or, since Congress certainly has the power to draw the federal appellate districts, they could pass a law that says henceforth the Ninth Circuit shall only hear cases that originate at the corner of Lombard and Gough streets in San Francisco, and cases that originate anywhere else in what is currently the Ninth Circuit shall be heard by a whole new court, the 9 1/2 Circuit.
The sole remedy for any of this craziness, I think, would be political. I’d imagine the Founding Fathers felt there was no point in trying to fashion rules that would prohibit these sorts of silly scenarios, because once you get to the point where Congress is actually willing to consider such a thing, your republic is in deep trouble already.
Someone in the TPM comments brings up a good point. Didn’t the whole energy task force flap revolve around Cheney’s claim that the WH didn’t have to turn over information about those meetings due to executive privilege?
Dick Cheney: proud sponsor of the Red Queen theory of government.
To (sort of) repeat my comment above, I don’t think Cheney is claiming his office is not part of the executive branch at all, just that it’s (a) part of both; and (b) not an “entity within the executive branch” for purposes of that particualr executive order, seeing as how it’s part of both.
But it’s ultimately all a bunch of fracking crap at bottom, designed to keep scrutiny from Cheney and his minions in the OVP. F*ck ’em.
So what are Congressional Dems actually going to do about this? The answer, of course, is bugger-all.
Are there any provisions to remove a Vice President from office by reason of mental disability?
Because I think Cheney isn’t just nuts, I think there’s a good chance he’s clinically insane. I don’t see how someone his age can go through repeated heart attacks – at close intervals, no less, repeated bouts of surgery under general anesthesia, and whatever drugs he’s on now, without a very real deletorious effect on the brain.
He acts paranoid. He’s fallen asleep in public more than once. One could put a case for serious memory lapses. He has little sense of proper public decorum (swearing at Senators, showing up at state funerals in casual clothes). He shows an inability to absorb information and act appropriately on it.
If he were a private citizen, a senior management executive at a corporation, or someone who uses heavy machinery as part of his job, there would be absolutely no question that he needs a mental evaluation.
Maybe Congress should look into that.
“He’s fallen asleep in public more than once.”
Umm, some of us with sick young children do that without being insane.
Umm, some of us with sick young children do that without being insane.
Is Cheney taking care of sick young children?
No.
And some of us could exhibit one or two of the other behaviors without being insane, as well. But all of them?
I fall asleep in public all the time, but I try to wait for when they start showing charts in meetings.
Try, I said.
Happens to us old farts all the time.
So what are Congressional Dems actually going to do about this?
they’ll get Chuck Schumer to make some sarcastic comments in front of a camera somewhere. that’ll show those wicked Rethuglicants!
Defunding judges staff, as punishment for unfavorable decisions, is exactly what Tom Delay threatened to do a couple years ago.
As someone put it, Chain-Eye obviously claims to be something like Schrödinger’s Cat. If he wants to claim some privilege from his position, he is there but the moment he is asked to take the responsibility attached to the same position, he is not there.
Maybe he should be put into the box together with the single unstable atom and the cyanide to find out whether his quantum claims are true ;-). (I hope this is not considered a posting rule violation)
Congress should challenge him on privilege claims in both claimed positions (legislative and executive). If he refuses to take a clean stand, someone should call the SC.
Btw, if the president pardons somebody, does that preclude a later president from extraditing the pardoned to a non-US court?
The German constitution explicitly bans that but I don’t know about the US constitution.
Personally, I find Powerpoint presentations to be one of the most powerful anti-insomnia treatments ever devised by man.
So. If the guy isn’t part of the executive branch, then nothing he did is covered by executive privilege?
Heh.
Here’s what I’d counter with, with the full knowledge that what I think I know might be completely wrong:
Your (Office of the VP) executive priveledege applies only to what you do in your capacity as a part of the executive; ditto your answerability to any laws/EOs that apply to the executive. So, no worries about having to divulge any Senate business. Everything else that you do is in your capacity as a member of the Executive branch, and is subject to all laws pertaining to the Executive.
To me, the VP’s job as President of the Senate/tiebreaker is possibly something that one could argue (straight-facedly) outside of rules that apply to the Executive, but nothing else about the office of the VP is.
‘scuse the typo. PIMF; if I could only remember.
RE Powerpoint. I hope everyone is already familiar with the Gettysburg Powerpoint Presentation.
Slide 5 just about had me literally ROTFL.
Scalia will no doubt succeed in locating the 4th branch of gov’t in a penumbra of something, somewhere. Or written in invisible ink on the back.
How much does Cheney care about his salary anyway? A paltry $200,000 isn’t a very big fraction of his annual income, is it? Besides, any defunding could be made up by taking up a collection among the wingnuts and corporatists, which is what I expected to happen if John Bolton had been reappointed without salary.
On the de-funding specific government employees point, Congress tried to do just that in the 1940’s. The 1946 case of United States v. Lovett struck it down as an unconstitutional bill of attainder.
There’s a possible administrative remedy. The agencies that control the security apparatus, clearances, document classification and so on,should immediately revoke all clearances and retrieve all classified material from the OVP.
As someone who has worked in a classified environment and held fairly high security clearances I’m appalled at the cavelier attitude this entire maladministration has taken toward national security. None of them deserves so much as the lowest level confidential clearance.
Article Two of the Constitution puts the VP in the executive branch. I think this whole thing is a stalling tactic by the WPE Criminal Enterprise.
The other shoe drops: LATimes is reporting Bush’s offices too are exempt from the executive.
I hate this administration. They’re awful, and incompetently awful, and awful.
I propose to exempt them from the cruel and unusual punishment amendment too (on the receiving end that is) [/snark]
Shadow Box
Reading Anonymous Liberal last night I was finally struck with a horribly uncomfortable insight to an event of some 3-4 weeks ago: out of the blue—on the notorious Friday afternoon news dump coverage window—the Senate released the second phase investig…
Rahm Emmanuel is calling Cheney’s bluff.