A Fourth Branch?

by digby

We have all discussed the unprecedented power of Dick Cheney in this administration ad nauseum, but this post from David Kurtz at TPM introduced a whole new element I hadn’t been aware of.

I assumed that Cheney believed the power of the Vice President (such as it is) derived from the executive branch. Apparently, however, he believes the office of the Vice President has power of its own that derives from both the legislative and executive branch:

I’ve gone from being open to the idea of an Imperial Vice Presidency to being convinced that historians will debate whether something approaching a Cheney-led coup d’etat has occurred, in which some of the powers of the Executive were extra-constitutionally usurped by the Office of the Vice President.

Last week, in trying to break the lock on who actually works in the OVP–which the Vice President refuses to reveal–the guys at Muckraker stumbled across this entry from a government directory known as the “Plum Book”:

The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).

It appears that Cheney’s office submitted this entry in lieu of a list of its employees, as federal agencies must do. It sounds like something Cheney’s current chief of staff, David Addington, might have written. Cheney and Addington have been the among the most powerful proponents of the theory of a “unitary executive,” but there are indications that they have also advanced, though less publicly, a theory of a constitutionally distinct and independent vice presidency.

WTF?

I had always known that Cheney was running the show, but I assumed he did it purely by using the power of the executive branch and manipulation of the presdient. I had no idea that he might have secretly carved out a previously unenumerated institution that derives its power from both the legislative and executive branches. What in the hell has really been going on in this administration?

Larry Wilkerson called it a “cabal” around Dick Cheney. But it seems to have been more than that. They created a shadow government and developed a constitutional theory to support it.

The undemocratic streak in the Republican Party continues apace. Each time they get power, they seek ways to weaken the nation’s understanding of what is acceptable in our democracy and what our constitution provides. (And keep in mind that it is entirely self-serving — they will turn all of that around without a moment’s thought when it suits them to challenge the opposition.)

The Libby trial has provided an excellent opening to look into this issue. Kurtz writes:

A hearing on the constitutional role of the vice president might be an excellent place to start. From all indications, Cheney has amassed considerable power due to his experience and savvy vis-a-vis the President’s relative lack thereof. But that is a separate issue from the constitutional role of the OVP, and whether, or in what ways, various statutory regimens, particularly in the national security arena, apply to the OVP.

By custom and tradition, the Vice President’s role had been circumscribed by how little express power and authority the Constitution granted the position. Hence, all the jokes over the years about the vice presidency. But in a move that is decidedly anti-conservative, in the conventional sense, Cheney moved to fill the void. I fear that what we will eventually find are structural flaws that were deliberately exploited by the OVP, which in turn further undermined constitutional and statutory structures.

This is important and the congress should not let it pass unexamined. The nation needs to know if some precedent has been set for making a vice-president a power center outside the commonly understood three branches of government.

It’s something out of a political thriller, I know, and it’s hard to wrap your arms around. But there is a part of me that wonders if it wasn’t a plan. It never seemed likely to me that the big money boys of the GOP would trust their fortunes to the blithering fool they set forth as president. Let’s just say that I wouldn’t be surprised if some conversations before the fact took place.

Kurtz also wonders how, if this is true, Cheney deals with the supremely arrogant decider. It’s not hard for me to imagine at all. Arrogant morons are very easy to manipulate. You just tell them what to think and then tell them they thought of it.

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