Cheney: Undermining the Separation of Power

This may not be of any interest to anyone who’s not a political nerd, but The Hill reports that Cheney has successfully stonewalled just about every attempt to release records in the Office of the Vice President.

The argument behind all the stonewalling is that the Vice President is somehow an unique institution, because it resides both within the executive and legislative branches.

Let’s examine why this argument is unconvincing.

First, it is true that the Constitution says that the Vice President is the President of the Senate and that he has the power to cast the tie-breaking vote. But this claim is highly technical and not substantive, because the VP is not actually present on the Hill for the vast majority of the time, instead delegating his responsibility to the president pro tempore. The VP does not participate in the day to day legislative process: he doesn’t introduce bills, sit on any committees, or participate in floor action. Although he can cast the tie-breaking vote, such a vote is largely ceremonial. So from a substantive point of view, the VP is not really part of the legislative branch.

Second, the historical evolution of the VP office has drifted closer and closer to the executive branch. Thus, you now have a VP like Cheney, who is probably the most powerful VP in US history. He participates directly in such highlevel decisions such as whether to go to war, whom to nominate and appoint, and in areas of foreign policy. Clearly, most of the VP’s substantive work is executive in character.

Third, the very notion of a “hybrid” office violates the principle of separation of powers. Cheney cannot plausibly maintain that he has both executive and legislative functions, because such a claim has already been explicitly struck down by the Supreme Court in cases like INS v. Chadha and Clinton v. New York. In the case law on separation of power, the Court has clearly maintained that offices within separate branches of government cannot assume the functions of another office in another branch of government. Thus, for Cheney to claim that he has both executive and legislative powers is blatantly unconstitutional and does not hold up in the court of law.

But this incident does raise concern about the separation of power. Cheney has set a precedent for future VPs due to his unprecendented level of power and involvement. Thus, it will be up to the courts to decide where exactly does the office of the vice president reside in the governmental apparatus. This is not likely to happen though, because it’s not likely that people would have a standing to sue in this type of situation. But if this is not resolved, then another powerful VP can further undermine the separation of power.

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