[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.
Excellent. Well-stated Roderick. What puzzles me the most about actions like those taken by Cheney is not that he would “try” something like this. What puzzles me more is people’s apparent enchantment with what Anthony Gregory calls “technocalitarianism.” Even if Cheney was, via some Jedi mind trick, able to convince everyone that he was actually not part of the Executive, the intent is clear. The intent of the designations is, as you say, to provide for checks and balances. Cheney’s intent is to avoid a few of those checks and balances! How can even his supporters support such moral relativism?
Unfortunately, Cheney’s argument does, in fact, have some merit too it. It would be more precise, though, to view it as the reductio of a series of common law precedents based more upon structuralist argumentation than upon the text itself – although the VP is an article II position. It is important to remember, though, that the VP was supposed to be selected seperately from the President himself, creating an independant perspective. However, it was shortly thereafter that, because of the selection mechanism, the VP would become de facto opposition leader and was thus subsequently amended into the current form (under the old structure, either Al Gore or John Kerry would be the VP today). Thus, the intrinsic ambiguity of the position was less of a problem insofar as the position was initially thought independant of the president himself. Of course, “factionalism” was also seen as a “bad thing” in the 1790’s, but, the current scenario is at least in part due to unintended consequence.
I am disappointed. “Intent”, in legal matters, should not trump text. In fact, Dr. Long has been very influential on my own view on this matter, and I find arguments from intent exceedingly unpersuasive. Constitutional arguments are, by nature, somewhat positivistic, and I wish to be very clear in disclaiming that my arguments on the subject do not always reflect either my ideals or my second best rules. Having said all that, my response to Dr. Long should help to reveal the weaknesses of some of the anti-Cheney arguments. (None of which is to say I agree – I don’t. But, intentionalist/struturalist/etc. arguments won’t get us anywhere. Rather, the questions would turn on the language of the “laws” in question, not whether the VP is a member of the legislature (yes) or the executive (also yes), or even whether the VP is an article I (no) or II (yes) position).
P.S. – 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.
But on the other hand see this.
I see your point, at least I think I see it, particularly with respect to “intent”, however, it is pretty clear that intent is specifically what this discussion is about, not text. Cheney is not seeking to properly use the text to better establish appropriate rules. He is using the text to avoid the intent, or maybe more accurately, the consequences (of course) to benefit his positions. This is, in fact, *exactly* why I mentioned intent as what interested me in this case. Sorry to disappoint!