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Thursday, June 28, 2007

Does Cheney have a legal leg to stand on in contending that he and the OVP are not covered by the executive order on classified documents?

On The Corner, Ramesh Ponnuru asks: "Does he [Cheney] have a leg to stand on, legally? He sure doesn't seem to."

When you say "legally," Mr. Ponnuru, it’s not clear what context you mean, and your question simply can't be answered without knowing the context.

If your question is, "Could anyone go to court to compel Cheney’s cooperation with the Director of the Information Security Oversight Office in this dispute?" then the answer is a very definite "No." What's at issue is an executive order — literally an order from the Chief Executive to his subordinates in the executive branch — and its only compulsive force comes from the President’s ability, at his sole discretion, to punish or ultimately to fire those in the chain of executive command below him who disobey him. The POTUS is presumptively not only the author, but the only relevant ultimate interpreter of executive orders. Whatever the then-President says an executive order means — regardless of what it may or may not actually say, or what it was originally intended to mean — is what the executive order does effectively mean (using the word "effectively" quite literally). So does Mr. Cheney have a leg to stand on in that legal sense? Absolutely, as long as Dubya says so. (And he does.)

If you instead meant (as I suspect), "Is there prior court precedent, or are there statutes or regulations, or principles of legal reasoning and interpretation, that directly answer or even address this question?" then the answer is: "Not exactly, but: Such statutes and regulations and precedents and legal principles as there are actually tend to support Cheney's position."

I advise you against taking your legal advice from WaPo writers, Mr. Ponnuru. (Or from CBS News, which published an equally vapid and one-sided analysis that also pretty much, ummm, skipped the actual law stuff.)

You surely knew from the title of this post and its subject matter that this was going to get tedious, didn't you? Hang tough, and I'll try to take it one step at a time.

*******

Executive Order 12958 (dated April 17, 1995), as extensively amended in Executive Order 13292 (dated March 25, 2003), is the relevant document (also reprinted here with some typos but with handy internal hyperlink cross-references). Section 5.2(a) of this executive order created "within the National Archives an Information Security Oversight Office." Section 5.2(b)(4) gives the ISOO's Director "authority to conduct on-site reviews of each agency's program established under this order, and to require of each agency those reports, information, and other cooperation that may be necessary to fulfill its responsibilities."

(I need a hard-core Beltway insider to tell me if the acronym for this office within the National Archives is commonly pronounced "Is SO!" That would be kinda cool, I guess.)

The ISOO Director implemented this executive order through a formal set of regulations that were published under authority of the order and subject to all of its limitations and restrictions. The pertinent regulation appears at 32 C.F.R. § 2001.80, and it says: "Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program." (It also goes on to say that the Director gets to specify the form and timing of the report.)

At first blush, neither the Vice President himself nor his staff would seem to be "agencies." But — as always with these pesky Washington lawyers! — whoever wrote this executive order had a special meaning for that word, and they gave it a peculiar definition in section 6.01(b) of the order:

"Agency" means any "Executive agency," as defined in 5 U.S.C. §  105; any "Military department" as defined in 5 U.S.C. § 102; and any other entity within the executive branch that comes into the possession of classified information.

Thus, the specific question raised by ISOO Director's letter to Attorney General Gonzales on January 9, 2007 — the source of the current argument — was "whether the Office of the Vice President of the United States ('OVP') is an 'agency' as defined in § 6.1(b) of the Order."

And we therefore have to consider three possibilities to answer it: Is either the VPOTUS or the OVP an "executive agency," a "military department," or an "entity within the executive branch" within the meaning and intent of this executive order? If not, then Vice President Cheney's right — even without reference to the practical and legal reality that it's only Dubya's interpretation that counts.

Before we look at the specific statutes or interpretive cases, though, pause with me a moment. (In the olden days, this would be when you'd stand looking at the wall full of maroon-colored volumes of West's United States Code Annotated, trying to decide which volume to pull down.) Title 5 of the U.S. Code is entitled "Government Organization and Employees." That's not where you find the statutes that deal most generally and directly with the President or the Vice President, though. Those are found in Title 3, entitled somewhat misleadingly, "The President." I say misleadingly because, for example, 3 U.S.C. §§ 104, 106 & 111 relate specifically and exclusively to the Vice President. He didn't get his own separate title when they structured the U.S. Code, in other words — but neither did Congress put his statutes over there with the Department of Agriculture in Title 5. That may seem trivial, but I'll come back to it later, because it's a hint, or maybe a clue.

*******

The first term from section 6.1(b)'s definition of "agency" that we have to look at is "executive agency." But the statutory cross-reference quickly multiplies that term's meaning three-fold too, because 5 U.S.C.  § 105 tells us that "'Executive agency' means an Executive department, a Government corporation, and an independent establishment."

Each of those three terms, in turn, has its own special definition, but the first two are easy. First, 5 U.S.C. § 101 provides an exclusive list of the thirteen familiar "executive departments," each of which is run by a "Secretary of," rather than by the Vice President. Second, his Halliburton history notwithstanding, our Veep and his office don't fit the definition in 5 U.S.C. § 103 because, well, neither Cheney nor the OVP is a corporation.

Somewhat less helpfully, 5 U.S.C. § 104 tells us that "independent establishments" can be one of two things. One of them is very specific: The General Accounting Office (which has famously, but unsuccessfully, tried to sue Vice President Cheney, on the basis of which we can presume that they are indeed different from one another). The other thing, though, is very general: "an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment." Whew. Fortunately, though, although we're faced with a model of Congressional clarity that tries to define something in terms of it not being a part of itself (or a part of some other specified stuff), we actually have a court case to help us out!

Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995), construed section 105's "independent establishment" puzzle in the context of deciding whether an employee of the Executive Residence (a/k/a the White House, but not to be confused with the "Executive Office of the White House") could sue the White House Chief Usher for employment discrimination prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. The court had to do that because Title VII, like our executive order here, also made cross-reference to 5 U.S.C. § 105 for its definition of "executive agencies." The D.C. Circuit first went through the same quick language and logic drill that I've just done with "executive departments" and "government corporations," but without the snark that I use to keep the dense legal prose moving. It then proceeded to hold that Congress did not intend for the the Executive Residence to be an "independent establishment" for two reasons — both of which apply equally as well to Mr. Cheney and the OVP.

First, the court noted that elsewhere, in 3 U.S.C. § 112, Congress had authorized

"[t]he head of any department, agency, or independent establishment of the executive branch of the Government [to] detail, from time to time, employees of such department, agency, or establishment to the White House Office, the Executive Residence at the White House, the Office of the Vice President, the Domestic Policy Staff, and the Office of Administration." That Congress distinguished the Executive Residence from the independent establishments, whatever they may be, suggests that Congress does not regard the Executive Residence to be an independent establishment, as it uses that term.

(Bracketed portion inserted by the Haddon court; italics omitted). The same, of course, is true of the Office of the Vice President, which was also included in the same list in the quote just above from section 112.

Second, the Haddon court noted that it's Title 3 (in 3 U.S.C. § 105(b)(1)), and not Title 5, that prescribes pay and working conditions for employees in the Executive Residence. This "further suggests," according to the court, that the relevant part of the Title VII employment discrimination laws that incorporated Title 5's definition of executive agency didn't apply to the plaintiff. Again, the same logic applies to Mr. Cheney and the OVP, for they also have their pay prescribed by Title 3 (specifically, 3 U.S.C. § 106) rather than Title 5.

Bottom line: the closely parsed statutory language, aided by the definitive interpretation of Congress' intent in the Haddon case, pretty conclusively establishes that neither Mr. Cheney nor the OVP are an "executive agency" within the meaning of section 6.1(b) of the executive order.

*******

The second term from section 6.1(b)'s definition of "agency" that we have to look at is "military departments." Fortunately, that's a shorter inquiry: 5 U.S.C. § 102 reminds us that the only military departments are the Army, Navy, and Air Force. I know he swings a mean shotgun, but Vice President Cheney and the OVP are both legally distinct from those.

*******

The third term from section 6.1(b)'s definition of "agency" that we have to look at is "other entity within the executive branch." Based on the analysis above, this "other entity within the executive branch" language is the only conceivable basis upon which the executive order might even arguably apply to the Vice President and the OVP.

And on this one, we can't hope to get any help from a federal court that's construed that term. This one doesn't come from a statute, and it's not defined by reference to a statute. We basically have nothing but traditional rules of construing legal language. Which is to say: We look at the language itself, and we also look at the context in which it's used.

Start with the language itself: Are either the Vice President or the OVP an "entity within the executive branch"? It's hard to dispute that both the Vice President himself, and his staff that collectively make up the OVP, are "entities." They are certainly treated, and considered, as being part of the executive branch for many purposes and in common parlance.

But the ordinary meaning of the word "within" implies something that is fully encompassed. There's a big difference, for instance, in being "within" a submarine and "partly within" a submarine. And as Administration spokesmen have tried to point out, there is an important respect in which the Vice Presidency, under the Constitution, does not exist or act "within" the executive branch, but in which it has a legislative function instead — presiding over the Senate and breaking ties there.

In drafting (or revising and republishing) this executive order, the President could have used a phrase that more definitely embraced the Vice President and his staff, despite their unique boundary-crossing attributes (of which he presumably was fully aware) — something like "entity wholly or partially within the executive branch," or "entity established by or pursuant to authority from Article II of the Constitution." But he didn't. When it would have been easy for a party to vary from the common meaning of a word like "within," and yet he didn't, courts generally are reluctant to find that he meant such a variance.

We also know that the President (or, more realistically, his own legal minions) paid special attention to the definition of "agency" when they issued the revised executive order, because the "military department" alternative that's now in section 6.1(b) wasn't in the original definition at all. They fine-tuned the language, but did not take the opportunity to rewrite, clarify, or broaden the "entity within the executive branch" provision while they were about the business of bringing in the military entities whose prior coverage must have been questioned. (As we'll see just below, though, they were definitely thinking about the VPOTUS and OVP at this particular time, in yet another context that can give us some guidance.)

To the question, then, of "Are the Vice President and the OVP 'within' the executive branch?" the best answer anyone can give is, "Yes and no; it depends on the context. And if you mean 'completely within,' then no." So let's look at the context, to see if it helps us resolve this arguable ambiguity.

*******

The ISOO Director's letter — which, in turn, was the only resource cited or apparently relied upon by the WaPo article that Mr. Ponnuru linked — makes two half-baked efforts to support his position by reasoning from the structure of the executive order and the history surrounding it. But in fact, when you consider indisputable context and history that his rather disingenuous letter omits, both of his arguments actually end up supporting Vice President Cheney's position.

I'll take them in reverse order. Here's the second (boldface in original, footnotes omitted):

Plain text reading: There are several explicit references in the Order to the constitutional position of Vice President that confer specific authorities and exemptions upon the individual encumbering [sic; I suppose that's a back-formation from "incumbent"] that position. There is but a single explicit reference to the government entity (the OVP) which serves the President. This sole explicit reference for the purpose of exempting the OVP from a provision of the Order supports an interpretation that the rest of the Order does apply, to include the Order's definition of an "agency"; otherwise there would be no need for an exception.

There are indeed "several explicit references" in the order to "the President and, in the performance of executive duties, the Vice President." The qualifier there is important: The Vice President's executive duties are those delegated to him by the President, rather than those created elsewhere (e.g., the VPOTUS' constitutional role in breaking tie votes as presiding officer over the Senate).

But there is no explicit use of the term "Office of the Vice President" anywhere in the executive order. That is, the "plain text" doesn't say anything directly on the subject of whether the OVP or the Vice President was intended to be an "agency" for purposes of section 6.1(b). Rather, the "plain text" at best creates a structure from which, perhaps, inferences may be drawn — and that is what the ISOO Director is actually trying to do. In the footnote support for the reasoning in the last sentence I've just quoted from the letter, regarding the "exception" supposedly proving his point, the ISOO Director writes:

See § 3.5(b)(2) which exempts "in the performance of executive duties, the incumbent Vice President's Staff" from the mandatory declassification review provisions of the Order.

What the letter and its cleverly elided footnote fail to mention, however, is that this exemption is also the only provision in the executive order in which the President's staff is referenced. And the letter certainly omits mention of the fact that the Veep and his staff are treated exactly the same way for purposes of this exemption as the President and his staff. The exemption from mandatory declassification review actually includes —

(b) Information originated by:

(1) the incumbent President or, in the performance of executive duties, the incumbent Vice President; [and]

(2) the incumbent President's White House Staff or, in the performance of executive duties, the incumbent Vice President's Staff[.]

It's simply impossible for this exemption to imply one thing with respect to the Vice President's staff — i.e., for it to imply that the rest of the order must apply to the Vice President's staff — unless this exemption also implies the same thing not only to the Vice President himself, but also to the President, and to his staff. Suffice it to say that neither Dubya nor his posse are "executive agencies" under the analysis I've gone through above either. And the ISOO Director has certainly not had the cajones temerity to suggest that through this executive order, President Bush somehow intended to require himself to generate reports and paperwork under 32 C.F.R. § 2001.80 in order to gratify the Director's urge for turf protection. Indeed, he's only asked the AG for an opinion confirming that the order applies to the OVP, not to Cheney himself.

(I'm reasonably sure, based on another argument discussed just below, that if, say, the Office of the White House Counsel, or the Executive Office of the President generally, were dutifully filing yearly reports to the ISOO Director, he'd have mentioned that in his letter.)

*******

The Director's other bogus argument in the letter — dutifully (if without much comprehension) parroted by the WaPo article Mr. Ponnuru linked — is that the Veep's past performance in providing compliance reports somehow set a precedent that ought to be binding, or at least useful in interpreting the intent behind the executive order (boldface in original):

Consistency in application: An interpretation that the OVP is not subject to the reporting provisions of the Order is fairly recent, in that up until 2002, the OVP did submit annual reports to this office.

For this argument to fly, though, one must presume that nothing else changed, other than the Vice President's willingness to comply, after 2002.

And that's an absolutely false premise, as the ISOO Director ought to know: A major purpose of Executive Order 13292 in March 2003 was to add language empowering the Vice President to share in the President's authority to classify and declassify material. That's when, for example, all the references to "in the performance of executive duties, the Vice President" were added; that's when the exemption language of what's now section 3.5(b) was added.

Before the 2003 revisions, in other words, there was no particularly clear argument that the President intended for the Vice President and his staff to have the rights and responsibilities that he and his staff had with respect to classified information. After March 2003, though, that clearly is the case. The Director's argument can only work if you believe that the President simultaneously (1) intended to give sweeping power to the Vice President and his staff that is equivalent for purposes of this order to that exercised by the President and his own staff, but (2) simultaneously, and without saying so explicitly, intended to subject the Vice President and his staff to the most tedious paperwork that the order imposes on the real "agencies" of the federal government.

The Vice President's compliance before 2003, then, the timing of his change in position, and the lack of compliance thereafter thus actually cut against the interpretation that the ISOO Director has suggested. And the "consistent application" under the current language and structure since 2003 has been that Vice President Cheney and the OVP have not complied, and the President has not squawked about that. Indeed, the President's own lack of previous reaction to the OVP's non-compliance is actually the best inferential evidence of the President's intent — even if, ya know, we ignore what his spokesmen say about his intent. (Which the WaPo and the NYT might do, but a court wouldn't, if there's a genuine ambiguity.)

*******

My ultimate conclusion, then, is that while the language of the order itself may be ambiguous, this full context actually strongly supports Mr. Cheney's arguments. I think he not only has "a leg to stand on, legally," but that a court would probably agree that overall, he has the better of this argument.

But of course, as I started off saying, no court will ever be called upon to answer this question. The only judgment that matters is the President's, and as of today, that's still George W. Bush.

(For more reading on this general topic, start with this succinct post by Dr. James Joyner about the unique position of the VPOTUS. I don't disagree with his political analysis about this specific dispute here and here, either, although I think the legal questions are distinct. And with due respect, I suspect that Prof. Orin Kerr may not have given this subject the benefit of his most thorough legal analysis before writing posts here and here at the VC; but some of his commenters at least found their way to the actual text of the revised order and to some of the right statutes.)

Posted by Beldar at 06:06 AM in Law (2007) | Permalink

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Comments

(1) craig mclaughlin made the following comment | Jun 28, 2007 10:30:04 AM | Permalink

Thanks for your typical sober legal analysis. This should serve as a cautionary tale to those in the blogosphere that use 'common sense' and shoot from the hip about complex legal issues-- Captain Ed, for one. It helps to know what you're talking about before you start talking, but being the blogosphere this cautionary tale will fall on deaf ears.

(2) Neo made the following comment | Jun 28, 2007 10:30:51 AM | Permalink

Ultimately, the current holder of the Office of the Vice President is following in the historical footsteps of the last holder of that office. Remember, it was Al Gore (AKA "the Father of the Internet") who broke with ISOO requirements and "lost" every one of his e-mails that he wrote while in office. Where was the ISOO director then ?

(3) Beldar made the following comment | Jun 28, 2007 11:28:48 AM | Permalink

Mr. McLaughlin, thanks for the compliments.

I don't necessarily blame anyone else — and certainly not any non-lawyer pundits — for being misled by the WaPo or NYT reporting on this. The current version of the executive order isn't hard to find, but it's hard to read, and it's harder still to find the original version. The statutes referenced in it, in turn, aren't hard to find either, but it's damned tedious to track through them. Fortunately, the only one of them that's at all unclear has a D.C. Circuit case right on point to solve the mystery, but that's not easy to find unless you have ready access to an annotated version of the statute or Westlaw or Lexis/Nexis.

And as is so often the case, the string of responses given by Administration spokespeople — orally, with a different spokesperson each day, which is asking for trouble on a matter like this — just didn't help. In fact, they just provided more ammunition for bozos like Keith Olbermann who pretend to "fact-check" them (but of course don't actually do the legwork I've done here).

And of course, I also have fault to find with whatever lawyer drafted the Diretor's letter. It's just plain disingenuous. I assume that the AG's office has been too preoccupied to put together a written response, but Fredo, if you're reading me — I waive copyright on this post. You can trim the snark and publish it on your letterhead. (Send a copy to Keith Olbermann, will ya?)

(4) Carol Herman made the following comment | Jun 28, 2007 2:57:03 PM | Permalink

Cheney has a good argument. Drudge headlines it, now. Because the president OFFERED to have Rove, Harriet Meirs, etc., all talk to a senate committee. CLOSED DOORS. No transcripts. This is what got turned down.

At stake? Outspokeness is necessary among the people the president calls on for advice.

Of course, all this legal crap is just the Bonkey's ONE PERCENT. They want Americans to stay home. And, they want the lawyers to grow rich running our country, as if the US Constitution belonged to them.

Too bad John Roberts and Alito are such mediocre men. The court still looks like it either tips one way. Or the other. Gone are the nearly universal opinions. (Which hold more weight than all these assorted pieces of paper. That read like Nifong's delivery of DNA evidence.)

The other thing in Dubya's favor? Cheney can speak well in public. He just hasn't done so. Unlike Bush, who can't muster his tongue in defense of anything.

But IF the public didn't matter? Lindsey Graham, today, wouldn't look like he just had the crap scared out of him. Saw his picture on Drudge. For a man who was sure of his powers, he looks like a man who lost the fight.

I wonder how these "traumas" help Guiliani? Because he's a real prosecutor. Hardball politics would be nothing new, to him.

To Fred THompson? Yeah. He'a also a lawyer. But out of practice. Playing one on TV? Well, would you go to Marcus Welby if you got sick?

It's gonna make 2008 "very interesting." Even in South Carolina, where the GOP have been taught to hide the competition during the primaries.

I'm just waiting to see how much it costs Fred Thompson to run. Because he has the "shoe string" advantage.

If you can win in an environment where lots of losers are tossing hundreds of millions of dollars, that, too, can influence how politics gets done, ahead.

In 1860? We shucked the WHIGS. But what if all we shuck, ahead, are buggy whips? People sure favored automobiles, even before there were roads to ride them on.

(5) Al Maviva made the following comment | Jun 28, 2007 4:33:20 PM | Permalink

Good discussion.

The latest scandal is that Cheney is refusing to turn over legal memos between DOJ Office of Legal Counsel and the Office of the VPOTUS relating to wiretaps and other issues related to the GWOT, pursuant to a congressional subpoena issued by that paragon of the law, Senator Leahy. He is claiming he will go to court to enforce the subpoenae if Cheney does not comply.

Attorney Client, Executive Branch, Deliberative and a host of other privileges apply to those documents. Leahy knows that. He also knows that no executive branch worth a lick is going to establish a precedent of turning over internal legal memos to aid in congressional witch hunts. No government lawyer in the future would ever commit advice to paper under such circumstances, not on any important, sensitive issue, anyhow. This makes Leahy's maneuver nothing more than a crass, cynical publicity stunt, and even should he manage to win (highly unlikely), it will do great damage to the relationship between government attorneys and their clients at all levels of the federal government.

Oh yeah, one other thing. Good luck on getting an order to compel, Senator. For some reason, federal judges seem to take attorney-client privilege kind of seriously...

(6) Tim made the following comment | Jun 28, 2007 5:13:42 PM | Permalink

Is is possible that as a member of the NSA that congress is allowing the VP access to Confidential Material as part of the VP's plenary powers? That therefore the EO can not apply to him?

I am sure that he is also allowed access for reasons other than his NSA access so this may not really apply.

Thanks for leading me to an interesting case of seperation of power.

(7) Billy made the following comment | Jun 28, 2007 5:14:45 PM | Permalink

Beldar,

Your analysis is very interesting and illuminating. I'm curious, however, as to whether Seminole Rock deference have the effect of undercutting the OVP's assertion that it is not an "agency" within the meaning of the ISOO's regulations? While, if forced to interpret the order under a less-deferential doctrine (i.e., Skidmore), it would seem that Haddon should apply for the reasons you outlined, why should it ever get that far if it is really the Agency filling in a gap in its own regulations?

Further, even if the ISOO has created a set of regulations too vague to apply to the VPO now, what is to stop it from issuing a clarifying interpretation (as are conducted by agencies all the time) explicitly stating that the term "agency" applies to the OVP?

In any case, while context does support an ambiguous reading of the authority and scope of the ISOO on this matter, what's to stop a (nondisingenuous) court from allowing the ISOO to broadly interpret its own regulation?

Of course, this would have to get that far, which I don't see happening...

(8) DWPittelli made the following comment | Jun 28, 2007 5:35:03 PM | Permalink

As I stated yesterday on Patterico's Pontifications, common sense is actually on Cheney's side:

"Even assuming that Cheney’s office is in the Executive Branch, wouldn’t it be the job of some other Executive Branch entity to oversee whether it is following an Executive Order? Is it really the business of the Legislature whether Executive Branch offices are obeying Executive Orders?

Comment by DWPittelli — 6/27/2007 @ 5:44 pm"

(9) Gregory Koster made the following comment | Jun 28, 2007 5:35:30 PM | Permalink

Dear Mr. Dyer: Your legal analysis went right over my head. So did the POST article. I don't understand the obsession with Executive Orders. They are potent instruments, but they can't stand up to the Constitution. What does the Constitution say? The only two duties it gives the Vice President are: a) waiting for the President to kick the bucket and b) presiding over the Senate. Furhter, can the Prez as Chief Exercutive fire the Veep? Nope. Ergo, the Veep is not in the Executive Branch. Could the Veep be classed with the independent agencies? No. No independent agency head can sit in front of the Senate, ddrowsing, periodically roaring, "Shut up you muggs and let the distinguised windbag from ___ roar on..."

We must treat a) as a nullity. Lots of Vice Presidents have never been President. Lots of potential, but until the Prez shoves off for bliss eternal, a) is nothing. b) plainly puts the Vice President in the Legislative Branch. This was long realized. Vice Presidents did not attend Cabinet meetings, the quintessential Executive task, until Harding invited Coolidge to them in 1921. It seems to me that Harding was taking a lesson from Woodrow Wilson's prolonged illness in 1919-21. During that illness, Vice President Thomas Marshall was kept in the dark by Wilson's wife, physician and chief of staff. I think Harding thought that this was a lousy way to prepare the Vice President for taking over, and used common sense to involve the Vice President so he would know what was going on. Trouble is, it blurred the placement of the Veep, which the Constitution put in the Legislative Branch. Congress muddied the waters still further in 1947, when it created the National Security Council (by the national Security Act, 50 USC 401, an Executive agency if ever there was one---but made the Veep a member. Under the separation of powers doctrine, this indicates that Congress thought that the Veep is in the Executive (and the Act plainly says the NSC is the "highest Executive Branch" agency charged with intelligence---see Pat 1.2 of the Act), even though the Constitution points the other way. This was not done out of ignorance; part 1.4 of the Act as amended says the Veep "In the performance of Executive functions" may see information. If the sacred doctrine of "separation of powers" is to mean anything, we can't have a Veep chairing an NSC meeting in the Prez's absence at 11 AM and then going to the Senate to preside, make rulings, and vote to break ties at 2 PM.

So where are we at? I still stick to the Constitution and hold that the Veep is in the Legislative Branch, as President of the Senate, and the President of the United States can't fire the Veep. What's the answer? A purist would say that Boss Dick should do nothing but sit in the Senate, presiding over the gales of wind, until he can't stand it anymore and hies off to the wilds to Texas to attempt murder on fowl and friend alike. This would cause all sorts of indigestion among "responsible" pundits who would bawl that the successor to the Prez has to be well informed. I agree. Let's get up a Constitutional amendment that abolishes the Veepacy, and gives the succession to the Secretary of State, as the senior Cabinet member who presumably knows what the heck is going on. To be sure, this may give the sober-minded pause, as they imagine Alexander Haig, Reagan's Secretary of State bawling on national television that he's in charge after an assassination attempt on Reagan....Hmm. Oh well. Would the sober rather bet on the Veep being an adequate replacement for the Prez? They'd collect on Truman and T. Roosevelt, but what about Millard Fillmore? Or John Tyler? Or Coolidge? Or either of the Johnsons?

No need for elaborate exegesis of Executive Orders or court cases. Just read the Constitution. To be sure, doing so and following this plain meaning will cause a sizable uproar, and likely a Constitutional amendment abolishing the Veep, but we must be serious now and then. The country can't always be frolicking, throwing an immigration bill, fuse lit, around, waiting to see who will be blown up.

As always, I apologize for the length.

Sincerely yours,
Gregory Koster

(10) DRJ made the following comment | Jun 28, 2007 5:35:45 PM | Permalink

Superb, but I already knew the guy from Lamesa is the smartest in the [internet blog] room.

(11) sj made the following comment | Jun 28, 2007 7:32:00 PM | Permalink

"Let's get up a Constitutional amendment that abolishes the Veepacy, and gives the succession to the Secretary of State, as the senior Cabinet member who presumably knows what the heck is going on."

No, just pass an amendment that explicitly states that the VP is part of the Executive Branch, or just abolish the Veep's presiding duties.

(12) Beldar made the following comment | Jun 28, 2007 8:22:14 PM | Permalink

Ooooh ... an Enron allusion, doubtless the most wicked comment you've ever paid me DRJ. But thank you anyway.

Billy: This is not a situation where an agency is writing to the Code of Federal Regulations to implement a statute. Congress' involvement is only indirect, and that because the executive order expressly incorporated some terms as having the meanings assigned them by statute.

If the Director re-writes his reg to say, for example, "'Agency' includes the Office of Vice President," Cheney will say: Good luck enforcing that because the courts won't hear you and the President (who I was standing next to when he signed it) knew he wasn't giving you authority to say that in your reg when he signed the EO. The EO both creates and confines your authority, and you are a puppet of the President except to the extent Congress says otherwise (which, here, it hasn't; compare the situation with former POTUS and VPOTUS papers, which is very different precisely because there is such a statute).

(13) Billy made the following comment | Jun 28, 2007 8:40:50 PM | Permalink

I somehow missed the fact that the definition came in the order, not in the regulations promulgated by the agency itself, which accounts for my error.

I completely agree that there's no way this is getting to a court (anyone who would have standing to bring suit would lose it as a result of Presidential authority the day they tried to do so); however, it does seem that the ISOO would be allowed substantial deference in clarifying what is an obvious ambiguity in the enabling order (is the OVP "any other entity within the executive branch that comes into the possession of classified information?"), despite the fact that it is an EO rather than a statute (if anything, that would seem to tilt toward more deference under my understanding of judicial review of agency interpretation).

This is, of course, a tempest in a teapot with regard to the substance of the dispute, but that in and of itself is why the VP's intermittent claim to not be part of the executive branch is so confounding; a simple argument that the ISOO exceeded the scope of its enabling authority would have been both legally sufficient and arcane enough so as not to attract the negative public attention garnered by this issue. So, the bigger question about Cheney's reaction may be "why this, like this, at this time?"

(14) DRJ made the following comment | Jun 28, 2007 9:32:55 PM | Permalink

Beldar,

You're too immersed in Houston lore, my friend, because my comment wasn't intended as a reference to Enron. If I'd remembered it's use in connection with Enron, I admit I wouldn't have used it but I've heard that saying all my life - always as a compliment - and that's what I intended here.

On second thought, if believing I made a witty Enron comment causes you to admire my cutting edge humor, I meant every word of it.

(15) Immoralist made the following comment | Jun 28, 2007 10:00:35 PM | Permalink

[This comment has been heavily edited for crude profanity. "Immoralist," opposing views are welcome, but they must be expressed in a civil fashion. First and only warning. This ain't dKos or DU. My site, my rules. — Beldar]

Jesus H. ***-******* Christ. My law-trained eyes behold the most dazzling, subtle, finely wrought piece of legalese I've ever read in my young 25 years. I especially love this bit:

To the question, then, of "Are the Vice President and the OVP 'within' the executive branch?" the best answer anyone can give is, "Yes and no; it depends on the context. And if you mean 'completely within,' then no."

Yes AND no? That's terrific, that's really f*****g terrific. Apparently lawyers like you and me can create an upside-down anti-matter dip***t universe in which a person and his staff are simultaneously this and not-this, that and not-that, depending on "context." Wonderful!

Your billable hours must make the ladies wet.

As a lawyer, I can appreciate from a purely professional and amoral standpoint what you've accomplished. As a human being who also hates most lawyers, I can also say that you and your ilk deserve to be drug out onto the street, stripped naked, flayed, castrated, doused in oil, set ablaze, and, finally, shot in the head for good measure.

(16) Carol Herman made the following comment | Jun 29, 2007 12:20:23 AM | Permalink

DWPittellim Cheney's advantage is having his name on the ticket when we're voting for President AND Vice President.

Power then comes from the People. That's what winning the race actually means. It also means that if the President gets mad as all get out, at his Veep; he can't scream at him that "HE's FIRED!" He can't be fired, because WE, THE PEOPLE, elected the man to office.

Ah, that's the question.

What can the senators do?

First off, what can they do if Cheney ignores the subpeona?

Of course, this will bounce up to the Supreme's. Where's there's enough going on; what with Anthony Kennedy mad as hell that he wasn't picked for "chief," and just a loose cannon, anyway ...

To knowing that the "best" the Roberts' court can do is a split decision. (Whew. At least Rehnquist blew off long meetings in conference. He will be remembered, well.)

Immoralist, I'm struck by your words. You're 25 years old? And, you're trained, already, to do law? Licensed? Or just with training wheels?

(17) peter jackson made the following comment | Jun 29, 2007 12:48:09 AM | Permalink

EO 13292 speaks of agencies and the OVP as separate entities throughout the document, which is pretty peculiar if the OVP is itself an agency for the purposes of the order.

yours/
peter.

(18) JM Hanes made the following comment | Jun 29, 2007 1:23:47 AM | Permalink

Beldar:

You do a terrific job of untangling the threads that bind. The snark is much appreciated too -- along with the title of this page which shows up in my brower tab as:

BeldarBlog Does Cheney.

The Senate website has a couple of interesting historical notes on the legislative/executive tension inherent in the Vice Presidency.

Under the original code of Senate rules, the presiding officer exercised great power over the conduct of the body's proceedings. Rule XVI provided that "every question of order shall be decided by the President [of the Senate], without debate; but if there be a doubt in his mind, he may call for a sense of the Senate." Thus, contrary to later practice, the presiding officer was the sole judge of proper procedure and his rulings could not be turned aside by the full Senate without his assent.

.......During the nineteenth century, the vice-presidency remained essentially a legislative position. Those who held it rarely attended cabinet meetings or otherwise involved themselves in executive branch business. Their usefulness to the president generally ended with the election. While those who had served in Congress might offer helpful political information and connections to a presidential candidate, or might attract electoral votes in marginal states, their status and value evaporated after inauguration day.

.......During the twentieth century, the focus of the vice-presidency has shifted dramatically from being mainly a legislative position to a predominately executive post. As modern-era presidents began playing an increasing role as legislative agenda setters, their vice presidents regularly attended cabinet meetings and received executive assignments. Vice presidents represented their presidents' administrations on Capitol Hill, served on the National Security Council, chaired special commissions, acted as high level representatives of the government to foreign heads of state, and assumed countless other chores — great and trivial — at the president's direction.

Back when the V.P. was finally moved into "spacious quarters in the Executive Office Building" by Nixon, his staff maxed out at 20. Don't you know Bush would have loved a little Rule XVI assistance in this week's proceedings?

(19) Philistine made the following comment | Jun 29, 2007 7:01:41 AM | Permalink

Aren't you ignoring the distinction between the Vice-President himself and the Office of Vice President? My understanding is that the sole purpose of the "Office of Vice President" as established by 3 USC 106 is to assist the VP in his "discharge of executive duties and responsibilities." Doesn't that pretty much put the OVP (though not necessarily the VP, as himself) squarely wholely "within" the Executive Branch?

(20) AF made the following comment | Jun 29, 2007 8:43:00 AM | Permalink

"The POTUS is presumptively not only the author, but the only relevant ultimate interpreter of executive orders."

Then we don't have the rule of law but the rule of the leader.
The argument is silly.

(21) Milhouse made the following comment | Jun 29, 2007 1:05:38 PM | Permalink

Actually, AF, it's your argument that's silly. Executive Orders aren't laws, they're orders from the president to his employees. They're binding on his employees for the same reason that your boss's orders are binding on you. It follows that he can vary them as he pleases, that he's not bound by them himself, and that they don't apply to people who aren't his employees, such as the VP.

In fact I don't understand why Cheney's office bothered with this whole question of which "branch" he's in, and his legislative role. It all seems irrelevant. The only relevant point is whether he has to obey EOs, and the clear answer is that he doesn't, because the President is not his boss. I don't know why they didn't just say that, and leave it at that.

(22) Billy made the following comment | Jun 29, 2007 4:00:09 PM | Permalink

In fact I don't understand why Cheney's office bothered with this whole question of which "branch" he's in, and his legislative role. It all seems irrelevant. The only relevant point is whether he has to obey EOs, and the clear answer is that he doesn't, because the President is not his boss. I don't know why they didn't just say that, and leave it at that.

My point exactly.

(23) Beldar made the following comment | Jun 29, 2007 4:24:20 PM | Permalink

Philistine: Your statutory cite actually proves my point: Title 3, not Title 5. I'm working on a follow-up to this post, but the short answer is, for these purposes Cheney and the OVP are part of the Executive, and not of the executive branch.

AF: The "rule of law" involves all three branches of government. There is interplay between them. Within each, though, there are certain sorts of rules that are wholly internal, and about which the other branches have little or no say.

President Bush, for example, isn't welcome to participate in drafting, and can't overturn, internal House and Senate rules, and the federal courts refuse to hear challenges to some internal congressional decisions. Neither Congress nor the Executive is involved in the judicial branch's most internal affairs that are handled instead through the Judicial Conference, of which the Chief Justice of the United States is the head.

Writing, enforcing, and interpreting executive orders is similarly the province of the Executive. One of the things I intend to address in the follow-up post I'm working on now is how this particular executive order had its origins in an act of Congress, though. And how much Congress has said, and properly may say, about what goes into this or other executive orders is an interesting and complicated question.

But saying my argument boils down to "rule of leader" instead of "rule of law" is, with due respect, unfair and inaccurate.

Billy and Milhouse: With respect to certain of his duties, you're clearly right that the President is "not [the Vice President's] boss." I don't think, for example, that the President can tell the Veep how to vote if the Veep is casting a tie-breaking vote in the Senate; to do so would violate separation of powers doctrine. And the President can't just fire the Veep.

But the President may delegate some of his executive authority to the Vice President. This President has in fact chosen to make this Vice President a historically close collaborator — bound more closely to him for some purposes than, for instance, cabinet secretaries, and treated instead as part of the President's close personal staff. This executive order is an example of the President deliberately choosing to do exactly that. But the Veep's executive authority here is derivative, as that of an agent and not as that of a principal. And when the Veep is exercising that delegated authority, the President could condition it on, for example, his compliance with executive orders — just like the President could draft an executive order that binds, for example, his chief of staff or the White House counsel.

(24) DRJ made the following comment | Jun 29, 2007 5:47:11 PM | Permalink

Beldar, I urge you to include the last paragraph of your previous comment (to Billy & Milhouse) in a post. It clarified this topic for me and I think it would help others, too.

(25) Milhouse made the following comment | Jul 1, 2007 7:59:14 PM | Permalink

Sorry, I still don't get it. Yes, the president is able to make the VP obey his orders if he likes, by threatening to withhold favours. He can also issue you or me with an "order", and obtain our obedience by offering to invite us to dinner at the White House if we obey. But he has no legal power to make us obey his orders, because he's not our boss. In exactly the same way, he has no legal power to make the VP obey his orders; if he wants him to, he must persuade him. An executive employee, though, is legally obligated to obey Executive Orders, because he works for the president. The president doesn't need to ask him nicely to obey, or threaten to withhold various privileges if he doesn't. "I'm your boss, here's an order, now do it."

And, closer to the point, it would never occur to me or you to obey an Executive Order, unless the president specifically asked us to. For the same reason, there's no reason for the VP to suppose that an EO applies to him, unless the president specifically asks him to obey it. In which case he still has the choice of refusing, and bearing the consequences of the president's displeasure.

(26) locutus made the following comment | Jul 6, 2007 8:09:17 PM | Permalink

Lots of food for thought here, but I think you still missed some nuances. For example, several elements of the Executive Office of the President do comply with the oversight and reporting requirements of the executive order -- including the National Security Council, OMB, OPM, and others.

An interesting analysis over at Secrecy News reached a contrasting conclusion.

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