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Another Cheney?

By Jack M. Balkin

Yesterday Peter Canellos, the respected national political reporter for the Boston Globe, had an article arguing that the next president might profitably take advantage of the precedent VP Cheney has established for the office. Canellos described the office today as a sort of ?prime minister.? But it would be a terrible idea to continue the Cheney precedent in the next presidency, whether Democrat or Republican.

I?m not opposed to presidents giving the VP specific (and public) duties that aid the functioning of the executive branch. The targeted policy responsibilities given to such recent VPs as Dan Quayle and Al Gore appear to have been beneficial. However, as detailed in a 2007 WP series, Cheney?s assumption of power was of a different order entirely. One of the institutional similarities that ties together Watergate, Iran-contra, and Bush II is that some element in the Executive Office of the Presidency ?goes operational? ? acquires the kind of line authority normally granted only to departments and agencies by statute. These departments are run by presidential appointees responsive to the chief executive. Responsibility is a two-way street ? appointees must carry out presidential policy (without forgetting about the statutes they administer), but presidents also need their direct unmediated advice.

There is plenty of evidence that during the Bush II administration, Cheney?s office, always intensely secretive, went operational and injected itself into the executive chain of command with disastrous results. Intelligence, military commissions, and the development of interrogation policy were just three of the best known examples. The problems with this were manifold. Cheney could exercise substantial influence outside the regular line of presidential authority without anyone being sure whether he had presidential backing. There was plenty of opportunity to shape agendas and debates in a way that would influence what the president would hear and so reinforce Cheney?s view of policy and executive power as against the president?s own appointees.

Canellos asks, in effect, what?s wrong with this? Isn?t the VP elected? Doesn?t election give the VP a superior claim of legitimacy as against any nonelected adviser? But this point conceals several fallacies. The VP?s electoral pedigree is a red herring as long as the office is constitutionally subordinate to the elected president. And those advisers? Some are appointed by the president directly, others with the advice and consent of the Senate. Either way, their relationship with the president is constitutionally legitimate and shouldn?t be obstructed by VP meddling. And what if the president allows or encourages the VP to meddle? The results you can judge for yourself! Unless the President clearly spells out the lines of authority in public (and nothing seems to have been committed to paper in Cheney?s case) the results can undermine statutory lines of authority painstakingly created over decades to ensure the president not only can carry out his policies but gets the advice he needs before making difficult decisions. When part of the White House secretly goes operational, experience shows the results always rebound against the presidency.

Full post as published by Balkinization on June 11, 2008 (boomark / email).