Monday, June 25, 2007
VP Cheney’s counsel believes that the VP is neither in the legislative or the executive branch. One can debate this question as a matter of constitutional law or in terms of the specific question at issue – whether Cheney should conform to the executive order on classified documents.
I have analyzed the constitutional law question below. But answering that question does not really answer the executive order question. If Cheney is handling classified documents, that is because the President has delegated executive power to him (or at least has delegated to the President the authority to advise him). If the President wants to apply the executive order to him, then he must follow it. I don’t see any constitutional power that the Vice President has that would exempt him from the order. Similarly, if the President wants to exempt the Vice President, then Cheney does not have to follow the order. It is up to the President. So his VP status is largely beside the point. And therefore the VP office's explanation to the press that the VP is not in the legislative or executive branch was not very powerful as a justification for the VP not following the executive order. Not because the explanation of the VP's constitutional status was not true – it may or may not be true – but because it was not really relevant.
Another issue under the executive order is whether the President can amend it orally or whether he has to do so in writing. And the answer appears to be that he can amend it orally. Unlike Congress, which speaks through written laws, the President can give both oral and written directions. And he can supercede or make exceptions to his written directions orally. Of course, doing so may create some confusion if not everyone received the oral directions. But there is no constitutional limitation on him doing so.