Calvinball, Dick Cheney, and Orin Kerr

Is the Vice President part of the Judicial Branch? So it would appear.

Dick Cheney’s latest stupid pet trick &#8212 claiming that the Vice President is neither an Executive Branch official nor a Legislative Branch official and is therefore not bound by the rules the effect either &#8212 is driving Volokh Conspirator Orin Kerr to shrillness. He’s said the argument sounded like a story from The Onion; he’s pointed out that it’s completely inconsistent with the stance the VP’s office took in the lawsuit about his top-secret energy task force and now Kerr tries a little bit of logic on Cheney’s little bit of pettifogging:

Cheney’s counsel believes that the Vice-Presidency is neither in the executive branch nor in the legislative branch. Last I checked, the federal government only had three branches, so by process of elimination the Office of the Vice President must be in the judicial branch.

(Cheney might like that: absolute immunity, you know.)

As far as I can tell, no one is standing up to defend this nonsense. (Not even Jonah Goldberg, who has never objected to nonsense before.) That’s good. But after we get finished laughing, we ought to reflect on the damage done to our institutions when lawyers working for the government make such transparently silly claims on behalf of high officials. The sense that politics is played by the rules of Calvinball is deeply inconsistent with the continued existence of a republican form of government. (Don’t believe me? Ask the Romans.) And it ought to be the particular duty of the conservative party to keep the nation reminded of that fact.

The current Republican ruling clique is sometimes reactionary, sometimes plutocratic, sometimes theocratic, and sometimes kleptocratic, and always chauvanistic, but never, in any traditional sense of that term, conservative. Too bad.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: