25 May, 2009Issue 9.5North AmericaPolitics & Society

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Cheney’s Duel

Steven Wilson

cheneyBruce P. Montgomery
Richard B. Cheney and the Rise of the Imperial Vice-Presidency
Praeger Publishers, 2009
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When Joseph Biden called Dick Cheney “the most dangerous vice president we’ve had“, you could be forgiven for thinking that he was referring to the fact that Cheney was the first sitting second-in-command to shoot a man in the face. If so, Biden must stand corrected: in 1804, Aaron Burr fatally shot Alexander Hamilton in a duel. Of course, unlike Cheney, Burr actually intended to shoot Hamilton, and Hamilton did not apologize to Burr for the inconvenience. Sadly, the polling of the early Republic being what it was, it is impossible to say whether Burr’s approval rating also fell to 13%.

Biden’s “most dangerous” comment came in response to a question about Cheney’s theory of vice-presidential power: Cheney asserted that the vice-president, as president of the Senate, is a member of the legislative branch and is therefore exempt from rules that apply to executive branch officials. Cheney’s unique constitutional theory would severely limit the president’s ability to regulate the actions of his number two. Yet in every other respect, Cheney’s constitutional reasoning would extend presidential power. Cheney’s first argument about vice-presidential independence applies to a specific dispute over the release of classified documents. But Cheney’s second argument about presidential power—the so-called “unitary executive theory”—would fundamentally alter the balance among the branches of the US government. This latter effort may well be Cheney’s lasting legacy, although the precise form it will take depends largely on the choices of the Obama administration.

Bruce Montgomery’s latest book takes on the extraordinary double-task of placing Cheney’s expansion of the powers and authority of the office of the vice presidency in a historical context, as well as tracing the development of Cheney’s peculiarly absolutist conception of executive power. Montgomery succeeds on both counts. The real strength of the book, setting it apart from the laudable account of Barton Gellman’s Angler, is its historical perspective, which successfully interweaves two analytical narratives. The first traces the evolution of the office from a “springboard to nowhere but oblivion”, not worth “a pitcher of warm spit”, as described by one-time occupants Theodore Roosevelt and John Nance Garner respectively, to one that can justifiably be described as “imperial”. The second explores Cheney’s own political evolution starting from his positions in the Nixon and Ford White Houses, where he witnessed first-hand the fall of presidential power. These formative experiences caused Cheney to develop an obsessive preoccupation with restoring presidential power to its nearly unlimited bounds, particularly where national security was concerned.

When one considers the history of the office, the eight years of Vice-President Cheney seem even more remarkable. For the first 15 years of the Republic, the vice-president of the US was the second-highest vote-winner in the presidential race. In 1804, the 12th Amendment changed that rule—and relegated the office to obscurity for more than a century. Only in 1933 was the vice-president invited to attend Cabinet meetings. Then in 1947, Congress made the vice-president a statutory member of the National Security Council. Even with these modest enhancements, as late as the 1970s vice-presidents still “arranged their own housing and went begging for speech writers at the White House.” By the time Cheney took office, the vice-president enjoyed, “a large and professional staff, a West Wing office, a separate line item in the executive budget, and an official residence.”

According to Montgomery, the rise of the vice-presidency under Cheney had more to do with the personal proclivities of President Bush than the institutional resources of the vice-president’s office: Bush voluntarily chose “to delegate broad swaths of his presidential power to his more experienced deputy”. In this respect, the rise of the vice-presidency may not be a permanent phenomenon as the role of the office is almost entirely contingent on the relationship between the president and his running mate.

Yet Cheney must be given some of the credit for exploiting the potential of a heretofore insignificant office. The vice-president does not serve at the pleasure of the president, and is the only constitutional created office that spans the branches. Cheney was able to exist in a constitutional no-man’s land, shielded from congressional scrutiny and oversight by the doctrine of the unitary executive, exempt from executive reporting requirements to the Information Security Oversight Office by claiming to be a part of the legislative branch as well. In such a role, he was able to act with the complete authority of the president in almost any area he chose.

Early indications are that Biden may be consciously framing his vice presidency in contradistinction to Cheney’s, taking a far less active role within the West Wing. In any event, it does not appear that President Obama shares his predecessor’s proclivity to hand over key decisions to his deputies and advisers.

However, Cheney’s efforts to recast the role of the executive branch may have a more permanent impact. Cheney’s obscene insult to Patrick Leahy on the floor of the Senate might just as well have been meant for Congress as a whole, as well as the judiciary. The war on terror provided an ideal context for Cheney’s ends as he “endeavoured to transform the state of emergency into a new and permanent status quo on behalf of executive power”. Unlike many other vice-presidents, Cheney was undeniably at the end of his political career and thus had no need to consider his future career. Instead, he placed his elevated office at the centre of the administration’s drive toward secrecy and complete control over detainees.

But the Bush-Cheney administration’s “long war”, is only the latest battle in Cheney’s longer war—a war that dates back to 1974. In that year, Congress expanded the Freedom of Information Act and enabled federal judges to review (and overturn) executive branch decisions to classify certain documents. As then-President Ford’s chief of staff, Cheney opposed the legislation, an experience Montgomery details extensively, and he has worked to undermine it ever since.

At the book’s conclusion, the reader might well be left feeling disconcerted. Montgomery’s unsettling narrative demonstrates how, within the context of a vigorously asserted unitary executive, even a deputy within an office as historically superfluous as the vice-presidency can thwart congressional oversight and evade legal frameworks with stupefying ease. The sinister glee with which Cheney welcomed the moniker “Darth Vader” might refer to more than his penchant for “advanced interrogation techniques”. For Cheney, the so-called “resurgence of Congress” in the 1970s did not bring balance to the constitutional force; it dangerously chained the executive leviathan and exposed the US to unprecedented threats. If the US Constitution was to exist in a brutish Hobbesian world, it required an executive branch leviathan to protect it.

Cheney’s bid to beat back Congressional encroachment on executive authority might have been “nasty” and “brutish”, but it is proving not to be short: indeed his vocal campaign for executive power has continued as he sets himself up as the Republican Party’s chief opponent to administration policy on interrogations and national security. Interestingly, he does not appear to find the new administration entitled to the same degree of secrecy which he once demanded. Today, Darth Vader is very much in the limelight—so much so that according to one prominent commentator, Cheney “is the Republican Party today”. President Obama is proving to be decisively indecisive as to how how he will approach the alleged crimes of the previous administration, despite rising demands from inside his own party for a truth commission and Cheney’s recent combative attitude, almost daring the president to go after him. A failure to expose the actions of key perpetrators within the Bush Administration, including John Yoo, David Addington, Alberto Gonzales, and Cheney might prove to be the fatal analogue to President Ford’s pardon of Nixon in the name of national unity. The old imperial ambitions will live on and the lesson learned will once again be that there are no legal repercussions for flouting the will of Congress and the Supreme Court.

In short, Cheney’s vice-presidency is over, but the constitutional duel is not. In this respect, a comparison to Aaron Burr may be apt. The Cheney vs. Congress fight charred Cheney’s reputation, just as the Burr vs. Hamilton duel dealt a fatal blow to Burr’s career. But in the duel itself, Burr won. Cheney might have won as well.

Steven Wilson is reading for an MSc in Politics at Christ Church, Oxford. He is a managing editor at the Oxonian Review.