The Solution to the Imperial Vice Presidency

By now it has made the rounds into the blogosphere that Dick Cheney has refused to comply with an executive order mandating disclosure of certain expenditures because, he claims, the Vice President isn’t part of the executive branch–or, perhaps more precisely, the Vice Presidency has both executive and legislative functions and thus isn’t really “in” either branch exclusively.

This absurd notion, of course, undermines the entire Federalist Society/Nino Scalia theory of executive power, i.e. a strict separation of powers and a “unitary executive” theory. It also undermines strict construction of the Constitution, because that document makes no reference to the Vice President’s executive functions: the office’s only powers are to preside over the Senate. Indeed, in the early republic, the Vice President was not considered an executive official: John Adams did not attend meetings of Washington’s Cabinet, and of course since Vice President Thomas Jefferson led the opposition to President Adams, it hardly would have made sense to include the Virginian in the executive branch.

This changed only slightly after the enactment of the 12th Amendment, which mandates that in the Electoral College, electors cast separate votes for President and for Vice-President. But this hardly puts the Veep in the Executive Branch. John Quincy Adams, who was elected President by the House, found as his Vice-President John C. Calhoun, who was elected unanimously by the Electoral College. It would be quite a series of emanations and penumbras to say that the 12th Amendment puts the VP in the executive branch.

So I say we should consider Cheney’s position seriously, but say that we are strict constructionists and he’s just in the legislative branch. Rahm Emanuel is getting somewhere when he suggests that if Cheney is in the legislative branch, he should get out of the White House, but there is a more important solution here, that should be found in next year’s budget:

None of the funds appropriated or otherwise made available by this Act may be used to fund or support in any way the Office of the Vice President of the United States.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.