Cheney 101

I’m watching Cheney’s Law right now, since the Sox game prevented me from watching the initial airing, and so far it’s fantastic, there will absolutely be full posting on it in the afternoon. But while I’m watching, I think it’s a good idea to provide y’all with some background on Cheney and his influence. After all, a true ninja can not achieve victory without first knowing the battlefield.

First, the Unitary Executive Theory. This is the basis, the legal wellspring of every move Cheney et al has made toward increasing executive powers. Here’s how it works. A number of lawyers working for Attorney General Edwin Meese, back in the Reagan years, were asked to find a legal basis for pushing back against the renewed Congressional powers that came about after Watergate and the investigations of the Church Committee. Their conclusion was that the Constitution gave the President total control over the entire Executive Branch, free of any restraint by either Congress or the courts. They cited as their central piece of evidence Federalist #70, in which Alexander Hamilton argued for a unified executive.

Now, to anyone reading the piece without an agenda, Hamilton was explaining why having one President was a better idea than having, for example, a Roman-style triumvirate, not why the United States should have a totally unaccountable executive. This didn’t seem to bother Meese’s lawyers. Now those same lawyers, and their disciples, are in charge. So we have the Administration’s top lawyers, clinging to the basic Nixonian principle that (to quote the man himself) “When the President does it, that means that it’s not illegal.”

Second, the “signing statement.” We all remember our basic lessons on how a bill becomes a law, right? If not, take a moment below to refresh:


So Cheney’s boys have added another step to the process. After the President signs a law, he can attach a statement to said law, which lays out how (or whether) he plans to enforce it. For example, the McCain Amendment of 2006 (scroll down to SA 1977) prohibited “cruel, inhuman, or degrading treatment or punishment” of anyone held in the custody of the U.S. Department of Defense. However, a signing statement attached to said bill made it clear that the President has the right to ignore that ban entirely if, in his judgment, the defense of the nation requires it. Fun, right? If we’re going to run the government this way, one begins to wonder why we need Congress at all.

The final thing we’ll go over is the idea of “Commander-in-Chief,” which is clearly central to Bush’s self-image. Article II of the Constitution declares that “the President shall be Commander in Chief of the Army and Navy of the United States.” Which means, despite his constant claims otherwise, that George W. Bush is not my Commander-in-Chief. He’s my President (not that I’m happy about it), but as I’m a civilian, thus not a member of either the Army or Navy, that’s all he is. So whenever someone tells you that you should believe the President, because he’s “our Commander-in-Chief,” then unless you’re a current member of the armed forces, they’re full of it. Why does the Administration use the term so often, then, you may ask. Because commanders aren’t accountable, whereas presidents, being elected representatives, are.

Sorry to turn an otherwise relaxed site into a lecture hall, but without this background, this week’s posts won’t be nearly as interesting. And the last thing I want to do is bore y’all into catatonia in my second week here. Till next time, folks.

4 thoughts on “Cheney 101”

  1. First and foremost : don’t apologize for ‘turning the site into a lecture hall’ – politricks is SO SICK since you came aboard. The only reason it was relaxed before was because nobody was writing for it…now this shit is great.

    On to the actual post – I’ve had a huge question since Bush started doing all this wild shit, then coming with the whole ‘I’m the President’ thing: when he does illegal things that aren’t in the name of US security – like say, cheating to win the Presidency, etc, does that then make it legal for all of us to break these rules? I can’t think of a specific [good] example, but how can something only be legal for the president? Bit of a quagmire, no? I guess what I want is for someone to commit a crime, and for their defense to be ‘well, the government did it – and it was warrantless – so I thought I could do it too’. We should set that up – I’ll invade someones house and oust them as a dictator or something…

  2. Yeah, that’s actually been one of the chief criticisms of the Bushies, the old line from Justice Brandeis: “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” It would be really fascinating, though, for someone to attempt that sort of defense, especially if they then went 10th Amendment, claiming that “sure, I’m not the Commander-in-Chief, but ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ So because the Constitution doesn’t explicitly give the President the power to spy on my neighbors, doesn’t that mean I have it?”

  3. Bush’s transgression of U.S. Constitutional law are indeed grave in light of Justice Brandeis’ remark. Not that I wouldn’t be interested in a glimpse of U.S. anarchy, but since it seems taken for granted in the scope of these posts that the constitution is worth preserving (or is it simply that Bush is reprehensible in his hypocrisy, in his relation to the constitution?), it seems worth harking back to some of that crusty old political theory (or not so crusty: there’s been plenty written about this recently, too): some would say that *the* defining feature of sovereignty is “the power to decide the state of exception” in law (see Carl Schmitt on Wikipedia). This means that insofar as you can call Bush sovereign in some capacity, he is simply playing his part by breaking the rules. The ruler maintains an ambiguous relation to the law, both inside and outside it.

    The problem which you are all highlighting is that Bush isn’t sovereign, or at least *shouldn’t* be in a representative democracy where the people supposedly hold the power. But then I think: how do we have the authority to confer authority on Bush through elections? Who gave us this authority historically? And who gave them the authority to give us authority? The philosophical problem of authority seems to be that it has no stable origin– it has only a “mystical foundation.” It is precisely through authority’s enforcement *and* transgression of the law that it asserts itself as authority.

    That said, I would never want to deny that Bush’s administration has more flagrantly transgressed constitutional law than others. I would only be reluctant to name transgression itself as a problem unique to that administration, and not as a historical problem common to many administrations, perhaps even a philosophical problem of authority itself…

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