Stanley I. Kutler: Civics for Cheney

Has the field of constitutional law and history been so infiltrated by the Federalist Society and its brigades of Rehnquist-Scalia-Thomas law clerks that Vice President Dick Cheney's remarks about belonging to the executive and legislative branches continue to stand unchallenged and unanswered?

Anyone with an elementary knowledge of political science, or even eighth-grade civics, must know the most basic fact of separation of powers theory. Article I, Section 6 of the Constitution stipulates that "no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office."

There it is: Vice President Cheney cannot be a member of Congress--not if he wants to be Vice President, or Co-President, or whatever he wishes to call himself. The Constitution dictates that he belong to one branch or the other. Cheney leaves us nostalgic for Vice President Richard Nixon--or even Spiro Agnew. It is unimaginable that either would have issued such sweeping, uninformed nonsense.

Cheney is at it again, claiming a uniqueness for his office--an office historically unique largely for its insignificance and of little consequence save for the necessity to succeed a President who had died or, in one case, resigned. Cheney's office recently acknowledged it had documents relating to the Administration's warrantless surveillance program. But his staff typically added that the Vice President would resist any efforts for Congress to see them.

Earlier, Cheney had refused to divulge his office's classification of documents, as required by President George W. Bush's 2003 executive order requiring executive branch agencies to report their annual accounting of such records to the National Archives. Cheney has not complied, demanding an exception in the most audacious terms. His spokeswoman declared the order "does not apply to the [Office of the Vice President]." Officials at the National Archives followed up by sending two letters to Cheney's staff arguing that the order's requirements do, in fact, apply to the OVP. Cheney's office never acknowledged the letters.

When Congress threatened to withhold funding for Cheney's office because of his refusal to comply, the White House backed off. "The rationale had been the view of the Vice President's lawyers, not Cheney himself," Mike Allen reported in Politico. Apparently, we are to believe that Cheney will disclose the material. But he has not reported to the National Archives and has ignored the Archives' request for an on-site inspection.

In his thus-far successful defense, Cheney has argued that he uniquely belongs to the executive and legislative branches. Incredibly, he insists that the order did not apply because his office is not an "entity within the executive branch." To quote the late Senator Joseph McCarthy: "This is the most unheard thing I ever heard of."

Cheney told CBS Radio July 30 that he finds his position "interesting" because of his dual commitments. He acknowledges that he advises the President and sits as a member of various executive branch offices, such as the National Security Council. But he also notes his legislative responsibilities: He presides over the Senate and can vote in the event of a tie. (Somehow he rationalizes that he is paid by the Senate, not the United States government--like all other officers and Congressmen.) Thus, the Vice President believes he has "a foot in both branches" and is a "unique creature." Well, one thing's for sure: Cheney certainly belonged to the executive branch for two hours and five minutes during the President's surgery in July.

We remember Cheney's academic difficulties during his days of student deferments and graduate work in political science at Yale and the University of Wisconsin, and we remember his "other priorities" were far more important than military service in the Vietnam War. But he must have had time to learn the basis of separation of powers, with its relevant constitutional underpinning. Then again, maybe not.

If Cheney had paid attention, he might have learned that the First Congress directed the first Secretary of the Treasury, Alexander Hamilton--no faux Federalist there; he was the genuine article--to digest and prepare a report on the nation's financial concerns. But when Hamilton, feistier and far more intellectually gifted than Cheney, tried to appear on the floor of Congress to discuss it with the members, they rebuffed him. They certainly understood "original intent," and they understood the intended separation of offices and powers.

Cheney's minions do not. Closeted and insulated from public view and scrutiny, the Vice President's notorious chief of staff, David Addington, and his fellow neoconservatives formulate the most absurd, wrongheaded theories, factually and historically. What history, what "original intent," can they possibly conjure as they invoke their "unitary executive" theory, or all the other pseudo-political science they peddle?

President Bush has endowed Cheney with unprecedented powers and authority. (Notwithstanding his own suspect constitutional theories and understanding.) That does not make the Vice President immune from any Congressional oversight, an authority the passive, enabling Democrats largely have neglected--save for Congressman Henry Waxman's yeoman efforts.

Some history is in order. John Adams, our first Vice President (a real conservative for all to admire), endowed the office with the most telling insight when he crabbily noted that "my country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived." John Nance Garner, who surrendered enormous power as Speaker of the House to become Franklin D. Roosevelt's first Vice President, said the office wasn't worth a bucket of warm spit--undoubtedly he meant a liquid of darker color. And Nelson Rockefeller dismissed the office as "stand-by equipment." Alas! He finally accepted it himself.

Al Gore may have had the most visible role of any previous Vice President. Visible, but of uncertain influence. Imagine if he had a Scooter Libby or a David Addington as his chief of staff or éminence grise. Imagine if he had asserted powers as sweeping as Cheney has pronounced. Can you hear the bullets flying and the howls from outraged Republican ranks, accompanied by the venom of talk-radio, and the follies of Fox News? Where are the "strict constructionists" when we need them?

Cheney, meanwhile, should resurrect those yellowed reading lists he so studiously ignored forty years ago. For openers, he and his staff can start with his now-tattered copy of the Constitution of the United States.

Reprinted with permission from the Nation. For subscription information call 1-800-333-8536. Portions of each week's Nation magazine can be accessed at http://www.thenation.com.