Has the field of constitutional law and history been so infiltrated by the Federalist Society and its brigades of Rehnquist-Scalia-Thomas law clerks that Vice President Dick Cheney’s remarks about belonging to the executive and legislative branches continue to stand unchallenged and unanswered?
Anyone with an elementary knowledge of political science, or even eighth-grade civics, must know the most basic fact of separation of powers theory. Article I, Section 6 of the Constitution stipulates that “no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office.”
There it is: Vice President Cheney cannot be a member of Congress–not if he wants to be Vice President, or Co-President, or whatever he wishes to call himself. The Constitution dictates that he belong to one branch or the other. Cheney leaves us nostalgic for Vice President Richard Nixon–or even Spiro Agnew. It is unimaginable that either would have issued such sweeping, uninformed nonsense.
Cheney is at it again, claiming a uniqueness for his office–an office historically unique largely for its insignificance and of little consequence save for the necessity to succeed a President who had died or, in one case, resigned. Cheney’s office recently acknowledged it had documents relating to the Administration’s warrantless surveillance program. But his staff typically added that the Vice President would resist any efforts for Congress to see them.
Earlier, Cheney had refused to divulge his office’s classification of documents, as required by President George W. Bush’s 2003 executive order requiring executive branch agencies to report their annual accounting of such records to the National Archives. Cheney has not complied, demanding an exception in the most audacious terms. His spokeswoman declared the order “does not apply to the [Office of the Vice President].” Officials at the National Archives followed up by sending two letters to Cheney’s staff arguing that the order’s requirements do, in fact, apply to the OVP. Cheney’s office never acknowledged the letters.
When Congress threatened to withhold funding for Cheney’s office because of his refusal to comply, the White House backed off. “The rationale had been the view of the Vice President’s lawyers, not Cheney himself,” Mike Allen reported in Politico. Apparently, we are to believe that Cheney will disclose the material. But he has not reported to the National Archives and has ignored the Archives’ request for an on-site inspection.
In his thus-far successful defense, Cheney has argued that he uniquely belongs to the executive and legislative branches. Incredibly, he insists that the order did not apply because his office is not an “entity within the executive branch.” To quote the late Senator Joseph McCarthy: “This is the most unheard thing I ever heard of.”
Cheney told CBS Radio July 30 that he finds his position “interesting” because of his dual commitments. He acknowledges that he advises the President and sits as a member of various executive branch offices, such as the National Security Council. But he also notes his legislative responsibilities: He presides over the Senate and can vote in the event of a tie. (Somehow he rationalizes that he is paid by the Senate, not the United States government–like all other officers and Congressmen.) Thus, the Vice President believes he has “a foot in both branches” and is a “unique creature.” Well, one thing’s for sure: Cheney certainly belonged to the executive branch for two hours and five minutes during the President’s surgery in July.