Monday, July 02, 2007


Sam Smith

THE PROBLEM with Vice President Cheney's claim that he is not part of the executive branch is not that he's wrong - a strong argument could be made to the contrary - but that he didn't in any way act as though he believed it until it seemed a good way out of jam.

While it is true, as a practical matter, that the vice presidency has been subsumed into the executive branch, there is no constitutional justification for this. And the vice presidency isn't alone. Notice, for example, how the very constitutional position of cabinet officer has been diminished by the creation of the non-constitutional office of White House chief of staff.

Beginning with Eisenhower's Sherman Adams, this post - which required no congressional confirmation for reasons that have never been adequately explained - was interposed between the president and the constitutionally cabinet officers, making the latter ever more subservient to it. While the Constitution grants the Congress power to permit the President to appoint "inferior officers" without confirmation, one would be hard pressed to include the Chief of Staff in this class. After all, the joke at the time of Adams was "Wouldn't it be terrible if Sherman Adams died and Eisenhower became President?"

I can't recall the non-confirmation of increasingly powerful White House staff and the parallel decline in the power of constitutionally named officials ever being a topic in politics or the media. It is one of the great silent changes in our system of government.

Something similar has happened to the vice presidency. When Jack Garner was vice president under Roosevelt, he declared the job "not worth a bucket of warm piss." And his primary office, in the Capitol, was often staffed by his wife in a rocking chair. By the time Al Gore got the job, however, he had a larger staff than Roosevelt used to fight World War II

If you go to references published before the current Cheney flap you find things like this:
"The Vice President's only executive function in the Constitution is to become President in the event that the President dies or is incapacitated." - Wikibooks

"Nor is it clear, even assuming the court chooses to hear the Comptroller General's case, that the Vice President can assert executive privilege. The Constitution vests the Executive Power in the President. So long as the President remains healthy, the Vice President has no constitutionally assigned executive function. As far as the Constitution is concerned, the Vice President's role is legislative in nature: to preside over and break ties in the Senate." - Find Law

But you will also find this on the US Government site:

"Executive Office of the President
* The President
* The Vice President
* The White House Home Page
* Offices within the Executive Office of the President
* The President's Cabinet"

In other words, in the executive branch's view, somewhere along the line the constitutional role of the Vice President was abandoned without constitutional amendment and the Veep was added to the president's staff. Does this mean that he should be confirmed by the Senate like a cabinet official or just treated like another immune political hack like the Chief of Staff?

What we have here is a perfect example of words acting as a substitute for law. As Edgar Allen Poe once noted, "By ringing small changes on the words leg-of-mutton and turnip. . . I could 'demonstrate' that a turnip was, is, and of right ought to be, a leg-of-mutton."

To further complicate matters, a video has tuned up in which Cheney explains his office by saying that "It's really a function of the last 50 years or so that the vice president's become an important part of the executive branch." In the end, the only thing that seems to matter is whether Cheney prefers at any given moment to be a turnip or a leg of mutton.