Levin doesn’t quite admit that Cheney’s theory is absurd, but he does sensibly suggest that it’s not exactly a winning argument. Meanwhile, the Weekly Standard’s Bill Kristol, after offering a desultory defense of Cheney on the grounds that oversight is “a pain in the neck,” also decided that discretion was the better part of valor … When you don’t even have Mark Levin and Bill Kristol on your side, it’s time to give it up. Maybe noted constitutional scholar Ann Coulter will find a way to defend Cheney, but it looks like that’s about it.
While Levin and Kristol aren’t exactly condemning Cheney, it seems Glenn Reynolds is not holding back:
DICK CHENEY AS A LEGISLATIVE OFFICIAL: Ed Morrissey is not impressed with this gem of a legal argument. He’s right not to be, and he’s right that this is a political and legal embarrassment for the Administration, but it’s not because of the constitutional language he quotes … Whatever executive power a VP exercises is exercised because it’s delegated by the President, not because the VP has it already. So to the extent the President delegates actual power (as opposed to just taking recommendations for action) the VP is exercising executive authority delegated by the President, but unlike everyone else who does so he/she isn’t subject to removal from office by the President (though the President could always withdraw the delegation, of course). However – and here’s where the claim that Cheney is really a legislative official creates problems for the White House – it seems pretty clear that the President isn’t allowed to delegate executive power to a legislative official, as that would be a separation of powers violation. So to the extent that this is what’s going on, the “Cheney is a legislative official” argument is one that opens a big can of worms.
Glenn refers to Ed Morrissey who really steps up to the plate:
This dispute has two aspects to it, one political and one legal, and neither benefit the White House, at least not the way it is handling the issue. President Bush set rules governing the handling of classified material for the entire executive branch in a 2003 presidential order. If he wanted to exclude the White House and the Vice-President’s office in that order, he could have explicitly done so at the time. Without another order specifically doing that, the 2003 order should cover all executive-branch offices, including Bush and Cheney. The rule of law applies, not the rule of whim, and without another order outlining the specific responsibilities of the President and VP, that’s what Bush and Cheney’s demands appear to be. While the legal case is tenuous at best – no one disputes that Bush could modify the order if necessary – the political case is solidly foolish. Why pick this fight? Is there a rational reason why the President and VP cannot comply with the same standards applied to the rest of the executive branch? If so, that argument has not found its way outside of the administration, leading people to wonder what the two have to hide. The VP has strained credulity by arguing that he doesn’t belong to the executive branch at all, and that the order therefore doesn’t apply. Of course the VP is a member of the executive branch; he’s elected in tandem with the President through the Electoral College. He didn’t get elected President of the Senate, a title that springs from the authority of being VP, not the reverse. Arguing otherwise makes Cheney look ridiculous and desperate, begging the question of what has caused the desperation. American culture and identity was formed on the basis that no man is above the law, not even Presidents and Vice-Presidents. If the executive order puts too much burden on the White House, then Bush should revoke or amend it, and explain why it’s necessary to do so. Stop trying to pretend that the VP is a member of the legislature and playing damaging games.
A big thank you to a couple of principled posts from two conservatives!