David Neff on Cheney's Rex Lex Political Views
I've just read an informative article by David Neff, the editor-in-chief of the Christianity Today Media Group, which includes Christianity Today, Christian History & Biography, and Books & Culture, among other publications. He also serves as moderator for the Christian History Blog. From reading his recent Christianity Today article, "Long Live the Law: What would John Calvin say to Dick Cheney?" (March 2009, Vol. 53, No. 3), I finally understand the problem with Cheney's political views.
Some readers might ask, "What took you so long?"
Well, the world is full of things to know about -- and even fuller of perspectives about those things. I've heard a lot of overwrought emotional opinions about various political issues and exaggerations about every politician that I know of. So unless somebody spells an issue out for me clearly and factually, I maintain agnosticism (unless I happen to already know something about the issue).
Moreover, the passing of a administration is a time for taking stock of where we find ourselves.
I won't go into the entire argument about the West's historical rejection of rex lex (the king is the law) in favor of lex rex (the law is the king), as set out in the article, for readers can click on the link and quickly read for themselves.
For his views concerning the return of rex lex in the American context, Neff draws upon Charlie Savage's book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. I haven't read Savage's book (and its title sounds a bit over the top), but Neff presents a reasonable case that the so-called 'imperial presidency' heralds the return of rex lex (a twentieth-century American trend toward increasing presidential power that had been reversed in reaction to Richard Nixon's presidential overreach). Here's the crux of his argument:
[O]ne young staffer in the Nixon administration, future Vice President Dick Cheney, became a champion of expansive executive power. Serving in Congress and in subsequent administrations, Cheney helped promote the theory of the "Unitary Executive," the idea that, in Savage's words, the White House should exercise complete control over everything in the executive branch, which could be conceived of as a unitary being with the President as its brain. Attorney General Ed Meese, then-Representative Dick Cheney, and others pushed that notion in order to reclaim the de facto presidential powers that were squandered by Nixon's overreach.Neff continues:
But after 9/11, the push to consolidate presidential power over national security issues took on new momentum. Sometimes Cheney's rhetoric has gone to extremes. For example, he told Fox News's Chris Wallace that because the President always has at his side a military aide carrying the nuclear "football," and because the President therefore has the ability to launch a nuclear attack at any time without checking with Congress, he is free of any responsibility to check with Congress in exercising his national security duties.
This is clearly an example of category confusion -- mistaking ability for authority, confusing capability for constitutional powers.
This nuclear argument is a huge leap along a trajectory outlined in earlier arguments Cheney made. For example, in his 1990 conversations with President George H. W. Bush, he argued that the President did not need congressional authorization to go to war in order to drive Saddam Hussein out of Kuwait. Indeed, Cheney later said that despite the fact that Bush sought congressional approval, if Congress had said no, he would have urged the President to launch Desert Storm over Congress's objections.
Despite the Constitution granting war-making power to Congress, Cheney has argued that Congress is essentially deliberative in nature, and therefore unsuited to deal with national security, something that always requires swift action. "The legislative branch is ill equipped to handle many of the foreign policy tasks it has been taking upon itself lately," he wrote. The executive branch, by contrast, was characterized by "decision, activity, secrecy, and dispatch," and therefore far better suited to deal with national security.
Nixon White House lawyer John Dean noted the flaws in Cheney's argument: "Cheney seems to be oblivious to the fact that the type of government he advocates is not, in fact, the government our Constitution provides . . . . His argument also assumes that a more agile, energetic, and fast-acting chief executive is the better system, but history does not support that contention. Presidential leadership has consistently shown itself less wise and less prudent than the slower but more deliberative nature of the system that we have."
Much of Cheney's perspective was summed up in a confidential memo written by former Deputy Assistant Attorney General John Yoo. He argued that the President's wartime powers give him, the CIA, and the military the discretion to do whatever he thinks is necessary, including coercive interrogation techniques that most experts consider to be torture. The President has a completely free hand, Yoo argued, simply by claiming national self-defense. Congress and the courts should have no say. The executive branch is not accountable.Neff presents a troubling picture of Cheney's views on presidential power as relatively untrammeled by limits set forth in the US constitution or by a division of powers among executive, legislative, and judicial branches. What is less clear to me is whether or not the Bush presidency consciously and actively adopted these views. That Cheney urged them is clear. That he succeeded is less clear.
This expansion of presidential power at the expense of the legislative and judicial branches has worried conservatives every bit as much as it has worried liberals. After all, it is a core conservative principle to mistrust concentrations of government power, especially at the federal level.
Neff, in contrast to Cheney, urges us to champion certain principles:
[M]utual accountability among the branches of government; rule by law, not by the raw assertion of power; and government actions limited by the nature of the liberties government is called to protect.He hopes that the Obama administration will hold to these principles, but also worries:
We are grateful that the new administration seems to understand this. But power has a way of corrupting. It shouldn't surprise us if this or future administrations are also tempted to expand their powers unreasonably.The problem goes beyond Cheney's political views on the executive branch. Untrammeled power is ever a temptation, not only to the right but also to the left.
John Calvin would likely say, "It's in our nature."