June 22, 2007
The Solution to the Imperial Vice Presidency
By now it has made the rounds into the blogosphere that Dick Cheney has refused to comply with an executive order mandating disclosure of certain expenditures because, he claims, the Vice President isn't part of the executive branch--or, perhaps more precisely, the Vice Presidency has both executive and legislative functions and thus isn't really "in" either branch exclusively.
This absurd notion, of course, undermines the entire Federalist Society/Nino Scalia theory of executive power, i.e. a strict separation of powers and a "unitary executive" theory. It also undermines strict construction of the Constitution, because that document makes no reference to the Vice President's executive functions: the office's only powers are to preside over the Senate. Indeed, in the early republic, the Vice President was not considered an executive official: John Adams did not attend meetings of Washington's Cabinet, and of course since Vice President Thomas Jefferson led the opposition to President Adams, it hardly would have made sense to include the Virginian in the executive branch.
This changed only slightly after the enactment of the 12th Amendment, which mandates that in the Electoral College, electors cast separate votes for President and for Vice-President. But this hardly puts the Veep in the Executive Branch. John Quincy Adams, who was elected President by the House, found as his Vice-President John C. Calhoun, who was elected unanimously by the Electoral College. It would be quite a series of emanations and penumbras to say that the 12th Amendment puts the VP in the executive branch.
So I say we should consider Cheney's position seriously, but say that we are strict constructionists and he's just in the legislative branch. Rahm Emanuel is getting somewhere when he suggests that if Cheney is in the legislative branch, he should get out of the White House, but there is a more important solution here, that should be found in next year's budget:
None of the funds appropriated or otherwise made available by this Act may be used to fund or support in any way the Office of the Vice President of the United States.
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