Cheney and the Constitution
By Aziz Huq 

If it weren’t so frightening, the irony would be delicious: A Vice President who has done more than any other to push the envelope on executive privilege at the expense of the courts and Congress takes the position that his office has both legislative and executive functions so as to avoid accounting for the use of classified materials.

Any veneer of intellectual legitimacy that executive power defenders have caked on their vision of a monarchical executive evaporates in the glare of this naked opportunism. And the scope and nature of today’s constitutional crisis comes into clearer focus.

The term “constitutional crisis” is much abused, invoked generally whenever Congress shows some life. Confrontations on war funding and Congressional subpoenas, to cite recent examples, are in fact as old as the Republic. They are but healthy sparks from a constitutional confrontation of “ambition against ambition,” precisely as the Framers intended.

But the true crisis is hidden in plain sight–the existence of an office in the Constitution–the Vice President’s–with no real remit and no real limits, open to exploitation and abuse.

Consider as symptom number one Cheney’s claim to be neither lawmaker nor executive–and thus exempt from any scrutiny of his handling of classified documents. In 2003 President Bush signed an Executive Order 12958 requiring agencies and “any other entity” within the executive branch to report to a division of the National Archives on their classification and declassification activities. But since 2003 Cheney’s office has pointed to his position as president of the Senate to justify a refusal to comply. In May 2006 a Cheney spokesperson told Mark Silva of the Chicago Tribune that the legal question had been “thoroughly reviewed.” And that was the end of the matter. Only now has Representative Henry Waxman’s House Oversight Committee begun to examine the Vice President’s failure to comply.

Second, Cheney’s argument makes no sense. The Vice President receives documents due to his executive policy-making role, not his position as Senate president. Not even Cheney has the chutzpah to claim he’s using these documents in his senatorial capacity: Outing covert CIA agents is apparently an executive function.

Third, if his office performs “legislative” functions, Cheney should be subject to the Senate’s strict rules for the handling classified documents. Since I doubt the Vice President would allow a Congressional sergeant-at-arms to enter his office, this in effect creates legal black hole (another one!) where classified documents can disappear without a trace.

Finally, Cheney’s argument is plainly a non sequitur. Why should addition of legislative duties trigger the subtraction of executive obligations? In lawyerly terms, the 2003 order applies to “any” entity within the executive branch. Having another label doesn’t stop Cheney from being one of those “any” entities.

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