Jun 27, 2007

Legislator Cheney

by Liberty and Power

[cross-posted at Austro-Athenian Empire]

Dick Cheney’s claim that he is not part of the executive branch is silly, but his argument for that conclusion is worth addressing.

Cheney claims that the Vice-Presidency is unique in embodying both executive and legislative functions (the latter being his Presidency of the Senate with the right to cast tie-breaking votes), thus belonging strictly to neither branch.

What’s wrong with this argument is that there’s nothing unique about the Vice-Presidency in this respect. The President, for example, has the right to veto legislation; why doesn’t that count as his likewise exercising a legislative function? The President also appoints the members of the Supreme Court; does this mean he exercises judicial functions too? Of course the Senate can nix the President’s judicial appointments (thus likewise exercising judicial functions?), as well as nixing, e.g., his Cabinet appointments (thus taking over executive functions?). Congress can also impeach the President (thereby intruding into both the executive and judicial spheres?). The Supreme Court for its part can strike down unconstitutional legislation (thus exercising a legislative function?). And so on. If the Vice-President is not part of the executive branch, then by the same logic the President is not part of the executive, Congress is not part of the legislative, and the Supreme Court is not part of the judicial. Which seems rather a reductio ad absurdum.

The point of all these overlapping exercises of powers is checks and balances, a concept with which Cheney is evidently unfamiliar. Each branch of government is given some voice in the operation of the other two, in order to prevent any one branch from exercising unchecked power. While the Constitution’s version of checks and balances is of course inferior to that found under anarchy, it’s still preferable to complete consolidation. Cheney is trying to use his particular example of overlap to frustrate checks and balances, thus turning it to the opposite of its actual function.

More Comments:

M.D. Fulwiler - 7/7/2007

"Cheney claims that the Vice-Presidency is unique in embodying both executive and legislative functions (the latter being his Presidency of the Senate with the right to cast tie-breaking votes), thus belonging strictly to neither branch."

But there are NO executive functions whatever for the Vice -President according to the Constitution. His only job is to preside over the Senate, of which he is not a member. But that does not mean he is not part of the legislative branch--he just has a very unique role.

Roderick T. Long - 6/29/2007

For an argument that supports Cheney's claim to be attached to the legislative branch -- but not in a way Cheney would like -- see this.

Keith Halderman - 6/28/2007

The reason I love the Daily Show with John Stewart so much is because he plays things like earlier clips of Cheney saying specifically he did not have to do something he did not want to because he was part of the Executive Branch. Has anyone else on television shown that incredibly relevant to the story footage? To my knowledge, no.

Gus diZerega - 6/27/2007

In a wonderful gambit the Senate Judiciary Committee just subpoenaed Cheney's office. In the past he has ignored subpoenas under the claim that the Executive Branch is not subject to them for internal matters. I wonder what our exponent of the führer prinzip will say this time?

Aeon J. Skoble - 6/27/2007

Yes, it's preposterous. The Constitution says that the VP shall be president of the senate, not a member of the senate, the qualifications for which are plainly spelled out and which the VP doesn't meet. The fact that he presides over it doesn't make him a member of it, as evidenced by, e.g., the fact that in most cases he cannot cast a vote, and doesn't reperesent a state. A commenter in the VC thread on this topic made a good analogy: during impeachment, the Chief Justice "presides over," but _does not_ thereby join, the Senate.
Plus there's that whole separation of powers thing in the Federalist Papers....