[cross-posted at Liberty & Power]
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.