Friday, July 6, 2007

Democrats should try doing a little research before launching gratuitous attacks on the Bush administration. For two weeks they have hammered Vice President Dick Cheney because his office does not comply with a 2003 executive order, under which the National Archives gathers information about the classification and declassification of national security materials. Mr. Cheney claims that the order does not apply because neither he nor his office are an executive branch “agency” or “entity.” He’s right, and his position is supported by the written opinion of the Clinton Justice Department.

The vice president has always been an odd-duck in our constitutional system. He is elected in the same manner as the president (by the Electoral College), but he does not work for the president. Unlike all other executive branch officials, he cannot be fired by the president. The vice president’s only constitutionally defined executive functions are inchoate — deliberating with the cabinet if the president’s ability to exercise his authority is in question, carrying out the president’s duties if he cannot continue and actually becoming president if the president is removed, resigns or dies. Otherwise, the vice president can exercise Executive Branch authority only by delegation from the president.

In fact, the vice president’s sole constitutionally assigned duty is to be “President of the Senate,” and to break ties when that chamber is equally divided, both of which are legislative functions described in Article I of the Constitution. As the Senate’s president, the vice president also is entitled to preside over their deliberations — but not to take part. In other words, constitutionally speaking, the vice president is more a member of the legislative than executive branch of government, but only uncomfortably so. In Washington, he has offices in both the Capitol and the White House complexes. His salary and the wages of some of his aides are paid out of the legislative branch’s appropriations; the rest are compensated out of executive branch funds.

This “neither fish nor fowl” status bothered some of the Framers. At the 1787 Constitutional Convention, Virginia’s George Mason (a stickler for separation of powers and always suspicious of federal power), clearly thought the office should be dropped altogether — because it was “an encroachment on the rights of the Senate; and that it mixed too much the Legislative & Executive, which as well as the Judiciary department, ought to be kept as separate as possible.” Perhaps not surprisingly, for most of our history, vice presidents have not mattered much. Before our own time, they were often virtually unknown to the president and some hardly met the chief executive while in office. One vice president is famously said to have described the job as “not worth a warm bucket of spit.” Only in recent years have presidents granted the vice president a significant executive branch role. However, it is important to recall that this is by presidential grace, not of right, and also that the vice president could refuse to accept any such authority.

On a practical level, however, granting the vice president executive authority has raised questions about how he, and his office, operate vis-a-vis Congress, the executive branch and the public. As a general rule, the vice president can be subject to the various legal requirements applicable to executive branch officials, but only if this is stated specifically in the relevant provision. As the Clinton Justice Department explained in a 1994 opinion, noting that “[t]he Vice President has no constitutional or statutory responsibilities as an executive branch officer” and concluding that Vice President Al Gore was not subject to the Freedom of Information Act’s requirements, general references to executive agencies or establishments are insufficient to include the vice president. Because of his unique status as a constitutional officer, an “express reference to the Vice President” would be necessary to cover him or his office.

There is no such statement in President Bush’s 2003 executive order. Indeed, that order consistently treats both the vice president and his office like the president himself, also exempt from the order’s requirements. This is not to say that the president could not constitutionally subject Mr. Cheney to these requirements, only that he has not done so. In other words, the vice president has not attempted to put himself above the law as the Democrats claim — as they would have known had they bothered to examine the record of the last Democratic president.

David B. Rivkin Jr. and Lee A. Casey are Washington lawyers who served in the Office of the Vice President and the Justice Department under Presidents Reagan and George H.W. Bush.

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