The Office of the Vice President has argued that it is exempt from complying with an executive order as it is not an "entity within the executive branch that comes into the possession of classified information". The letter from the National Archives to the Attorney General writes that the Office of the Vice President believes this is true because it has both legislative and executive functions.
Firstly, the executive order extends back to 1995 and was re-issued by the Bush Administration more recently. The Office of the Vice President did submit these statistics reports for a couple of years, but stopped in 2003.
Secondly, executive orders do not have the force of law, they have the force of procedure internal to the executive branch. So Henry Waxman's comment that Cheney is "saying he is above the law." is not necessarily true. Cheney is saying he is above the President's executive authority and executive orders, which probably does not make George Bush a happy camper.
Where it may intersect with legislative prerogatives is because it is classified material. Unfortunately I am not familiar enough with US law in this area to comment with any certainty.
I originally thought that Cheney was going to argue that the Office of the Vice President was not directly supported by legislation as other executive bodies are, such as the Department of Agriculture, the Department of Defense, etc etc. I was ready to explore if that was true, but the argument that the Vice President is both executive and legislative means that there is no separation of powers and no checks and balances.
By this mechanism, because the President can veto legislation then the President has legislative functions; because the legislative can over-ride a veto and legislative which executive bodies can exist, then they have executive functions; and because the executive nominates and the legislative approves judges then both are judicial as well. It becomes an absurd argument with little care for the US constitutional structure.
The Vice President is mentioned several times in the US Constitution:
I.III The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. II.I The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. II.IV The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.Note the old time spelling of choose. Cheney's office isn't arguing that it is not part of the executive, rather that it is a executive-legislative chimera of an office with the constitutional lines from Article I presumably making the Office of the Vice President exempt from executive orders unless they are described as an agency of the executive and legislative. Which is also absurd. I think the easiest explanation for all this is the Office of the Vice President didn't want to comply with the executive order, and this description of why, after the fact, is just an attempt to explain it away. There are more serious issues here though in terms of executive authority; the main one being, the President is the head of the Administration - and the authority vested in an executive order as a procedural outline and as force of procedure, stems from the President's authority in the executive. Cheney is saying figuratively that the Vice President is not under that administrative or procedural authority. This is more worrying for George Bush as it is a direct challenge and repudiation of his authority. Update: The President backed down.
White House deputy press secretary Dana Perino said it's clear that the president's executive order never intended for the vice president's office to be treated as an "agency."Under Carl Schmitt's conservative political philosophy the political, or sovereignty, is decided by who can call the exception. The Vice President just called exception on the President - Cheney has declared he is sovereign over Bush. It appears there is legislation behind the executive order which governs the archiving of classified material. So the little struggle over the executive order may become moot as the full force of constitutional law, as opposed to the force of executive procedure, is brought to bear on this issue. Update II: I discussed the Schmittian outcome in more detail on Gary Sauer-Thompson's site: Sovereign By Exception.
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