Orin S. Kerr in a post published at the Volokh Conspiracy Law Blog has pointed to a previous Supreme Court Case, which sheds light on the mendacity of Cheney’s assertion that he is not a part of the Bush Administration. The case is the 2004 Supreme Court Case, Cheney v. United States District Court For The District Of Columbia, and it is in the Brief for the Petitioners (Cheney), where the incongruity lies.

In the Brief for the Petitioners can be found some strong claims that the Vice President is indeed a member of the Executive Branch:

• This case presents fundamental separation-of-powers questions arising from the district court’s orders compelling the Vice President and other close presidential advisors to comply with broad discovery requests by private parties seeking information about the process by which the President received advice on important national policy matters from his closest official advisors.
• The President established the NEPDG to obtain from his most senior advisors, including numerous heads of departments, their advice regarding legislation that he should propose to Congress and administrative actions that the Executive Branch should take.
• Any attempt by Congress to regulate the President’s ability to obtain advice from officials in the Executive Branch would unconstitutionally interfere with powers expressly reserved to the President by the Constitution.
• During the Constitutional Convention of 1787, the Framers considered several times whether to provide the President with some form of advisory council that included representatives of the Legislature or Judiciary. See James Madison, Notes of Debates in the Federal Convention of 1787, at 487-488, 509-510, 569, 598-602 (W.W. Norton & Co. 1966) (debates of Aug. 20, 22, and 31 and Sept. 7, 1787). Each such proposal was rejected. The Framers chose instead to enshrine in Article II the President’s power to seek advice from those under his direct control. As Alexander Hamilton subsequently explained, the unity of the Executive would be destroyed if the President were “subject[ed] in whole or in part to the controul and co-operation of others, in the capacity of counsellors to him.” The Federalist, No. 70, at 472-473 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961) . The Opinion Clause thus explicitly confirms the President’s authority to gather information and opinions from his subordinates. The history of that provision, the structure of Article II, and the obvious constraints of the separation of powers make it clear that the President’s authority to receive opinions from Executive officers is not subject to interference from or control by the other Branches. The President may, of course, enlist the Vice President in the process of obtaining those opinions, as Congress has explicitly recognized. See 3 U.S.C. 106.

Justice Kennedy wrote the opinion which was joined wholly by Rehnquist, Stevens, O’Connor, and Breyer. Parts I, II, III, and IV were also joined by Scalia and Thomas. Stevens wrote a concurring opinion. Only Ginsburg dissented. In the opinion, Kennedy wrote:

Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’” United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that “[i]n no case . . . would a court be required to proceed against the president as against an ordinary individual.” United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807). See also Clinton v. Jones, 520 U. S. 681, 698.699 (1997) (”We have, in short, long recognized the ‘unique position in the constitutional scheme’ that [the Office of the President] occupies” (quoting Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982))); 520 U. S., at 710.724 (BREYER, J., concurring in judgment). As United States v. Nixon explained, these principles do not mean that the “President is above the law.” 418 U. S., at 715. Rather, they simply acknowledge that the public interest requires that a coequal branch of Government “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,” ibid., and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.

There was never any doubt that Cheney has wanted it both ways, depending on the circumstances. It’s funny that the brief doesn’t establish that the VP is an executive official but rather just assumes it. That was enough back then. Those were the days.

Dana Milbank has read the same brief that Prof. Kerr has, and also relays this little gem:

The explanatory task fell to White House spokeswoman Dana Perino, whose skin reddened around her neck and collar as she pleaded ignorance during the daily briefing: “I’m not a legal scholar. . . . I’m not opining on his argument that his office is making. . . . I don’t know why he made the arguments that he did.”

“It’s a little surreal,” remarked Keith Koffler of Congress Daily.

You’re telling me,” Perino agreed.

“You can’t give an opinion about whether the vice president is part of the executive branch or not?” Koffler pressed.

“It’s a little bit like somebody saying, ‘I don’t know if this is my wife or not.’”

Gary mentions Rahm Emanuel has introducing a bill to delete spending for Cheney’s ofice due to Cheney’s claims, when convenient. I understand the desire for action — any action — from the Democrats on this issue. But I keep thinking this is a mistake. Maybe you can help me see otherwise…

If the bill doesn’t pass (which is most likely), then it is merely a publicity stunt that attempts to embarrass the VP, administration and any Republicans who are forced to argue against it. In such a case, all sides seem a bit silly. Although I understand that the point is to force members of Congress to take a public position on his authoritarianism

If, by some stroke, the bill actually passes, it would be disastrous. You can’t pass legislation that targets a single individual, so this would be a lasting statement about the office of the VP. It would be taken to support Cheney’s perverse argument that he is not part of the executive.

The braver (and more appropriate) action here would seem to be to introduce articles of impeachment. The list of abuses is already long, and the refusal to obey an executive order in the handling of classified documents in the smoking gun. For those who say it would never succeed, Rahm’s attempt to defund the VP’s office is proof that this isn’t the prime consideration.