Tuesday, March 24, 2015

Unitary Executive Theory: How the GOP in Congress is Destroying Cheney's Life Work

 by Nomad

Former vice president Cheney must be watching in dismay as the Republicans in Congress are tearing apart a doctrine that he has spent his whole life promoting.

The now-infamous letter of the 47 Senators  may not be treasonous although some on the Left may think so. The  unsolicited advice to the Iranians may not be a violation of the Logan Act and some lawyers might disagreed.
Nevertheless, in one aspect, there is something distinctly peculiar about what Congress did and has been doing since President Obama took office.

This new activism is a reversal of policy that has been the long standing hallmark of conservative principles. That principle is known as the Unitary Executive Theory and one of its chief promoters has always been former Vice president Dick Cheney.

According to this doctrine, all executive authority must be in the President’s hands, "without exception." The President and other members of the executive branch have special rights and privileges that come with the office. And the legislative branch, according to the proponents, has no authority to question presidential power. The president as the head of state and  that preeminence required Congress to recognize its lesser position.

In fact, there's no explicit support for the Unitary Executive Theory in the Constitution. The Supreme Court ruled it was more or less a part of the separation of powers doctrine; that legislative branch and the executive branch were discrete entities.  Nevertheless, the exact limits for each branch is certainly something of a grey area of Constitutional law.

Whose Foreign Policy is it?
The Constitution is pretty clear about who is responsible for foreign policy. Only one branch of government is authorized to speak for the country. Since George Washington's time, foreign diplomacy was the domain of the executive branch alone.
The first Secretary of State Thomas Jefferson made that very clear what he thought about the subject. In 1790, he wrote:
'as the President was the only channel of communication between the United States and foreign nations, it was from him alone 'that foreign nations or their agents are to learn what is or has been the will of the nation'; that whatever he communicated as such, they had a right and were bound to consider 'as the expression of the nation';
In other words, only the president (or a person he authorizes) may speak for the nation.
Treaties, a binding contractual agreement recognized by two or more sovereign nations, must be formally ratified by the Senate. Article II, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the President of the United States to propose and chiefly negotiate agreements, Congress does not have any authority to conduct independent negotiations or the right to speak for the nation. Treaties require ratification by a super-majority of Congress.  

Non-binding agreements do not require any approval and has no special authority over them.An executive agreement is an agreement between the heads of government of two or more nations that has not been ratified by the legislature as treaties are ratified. Executive agreements are considered politically binding to distinguish them from treaties which are legally binding. 

This topic has been the cause of much debate recently as everybody knows by now. What is fascinating is how far the tables have turned. After all, the supremacy of the executive branch has, since Nixon, become a fundamental doctrine of modern conservatism. Today you'd never know it but whenever the Grand Old Party needed it, the Unitary Executive Theory was the Republican president's best weapon to an unruly Congress. 

Presidents Nixon, Reagan and George W. Bush have each used executive privilege in an attempt to avoid Congressional oversight. Although it was never actually a successful defense, it has become more and more refined over the years. 
And surprisingly, Dick Cheney has been there in every attempt.

Nixon's Rejection of the Law
In the Nixon administration, Cheney was a participating witness to the president's battle against Congress. Starting in 1969 in the Nixon administration, (Cheney eventually rose to become White House Chief of Staff under President.Gerald Ford.)

In the Watergate scandal he saw first-hand the clash between Congress and the president.

Eventually the third branch of government, the Supreme Court, was called in to referee the slugging match. At one high (low?) point, Nixon's attorney fought against a Congressional subpoena for the White House to turn over potentially incriminating recordings. The proverbial "smoking gun" which would likely prove that Nixon had committed high crimes.

The Supreme Court after some careful deliberations, recognized the necessity of keeping some executive secrets especially when it came to the communications between high level officials. They foresaw that a totally open system of government was impractical. 

In the case of United States v. Nixon in 1974, the court ruled:
"Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process."
However, they also added that the need for confidentiality was not a claim for absolute privilege. Executive privilege could not be evoked on non-specific grounds to block the enforcement of criminal statutes.
Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
In other words, for the president to say "I shan't, thank you very much" simply will not do. There had to be some actual pressing national security reason for confidentiality. 
(This was a Nixon mistake that young Cheney noted and it was technicality that he must have vowed not to repeat.)

Regardless of situation, the president must obey the law and the courts. Early in American Constitutional history, Marbury v. Madison, established that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: 
"It is emphatically the province and duty of the judicial department to say what the law is."
In the Nixon ruling, the Supreme Court was walking a very fine line.
The Justices pointed out that establishing a balance between the separation of powers and the need for checks and balance was crucial. If care was not taken, it could throw the entire system into a chaos of "constitutional confrontation between the two branches." 

Eventually, the Supreme Court would be drawn in as well with all the incumbent doubts of judicial partiality. The matter should have been more or less resolved. However, conservatives remained were outspokenly defiant. In claiming that Watergate was a trumped up case against the president, they ignored the court's decision. Ex-president unrepentant Nixon would say "when the president does it, it's not illegal". 

This was something that the ambitious White House aide Dick Cheney truly believed in. Decades later, Cheney would put his faith to the test as vice president under George W. Bush. But this time he would add his own name to the list of those above the law.

Iran Contra: A Challenge to Unlimited Authority
Years later, the matter resurfaced like a blast from a once dormant volcano. This time when President Reagan ran into his own scandal known as Iran-Contra, every bit as humiliating as Watergate. 

As a member of the committee investigating the scandal, Senator Cheney represented the minority in his support of Reagan. At issue was the president's decision to obstruct Congress and to mislead the American public. The president, it was then declared, had the right to conduct covert diplomacy, even if it meant deceiving  the American public. Even if it meant breaking a few laws. When they president does it....

According to their reasoning, the objectives of the policy outweighed the law, overruled the will of the people and superseded Congressional oversight. The ends justified the means. As one source explains:
[Cheney] was able to persuade some (but not all) of his Republican colleagues to sign a minority report vindicating Reagan not on the particulars or on the facts but on a theory of executive power that declared the Boland Amendments, as well as virtually every congressional law limiting the president’s foreign policy prerogatives, unconstitutional. They argued that Congress was to blame for all of the mischief: The president was forced to do blatantly illegal things only because Congress had inappropriately blocked his ability to do them legally.
The only problem with this idea- besides the immorality of it- was that, when everything goes pear-shaped, and the public finally learns about what's really going on in the Oval Office, the fallout, the responsibility for any ensuing catastrophe, falls solely on the president.
Who else? Since Congress had had no input- indeed, no knowledge of what was going on in the Oval Office- it could not be blamed.

Yet, in the Iran Contra scandal, that's not how it turned out. President Reagan, caught in a trap of his own making, simply denied responsibility. His signature was on the order to begin shipments to Iran but it was his His underlings that took the fall.
No need to shed many tears for them. They were all were eventually pardoned. 

That's how the Unitary Executive Theory worked in practice.

Our Country’s Foreign Policy Leader
Senator Cheney's philosophy was in full view in the minority report on the 1986 Iran-Contra investigation.
The country’s future security depends upon a modus vivendi in which each branch recognizes the other’s legitimate and constitutionally sanctioned sphere of activity. Congress must recognize that an effective foreign policy requires, and the Constitution mandates, the President to be the country’s foreign policy leader.
As a member of Congress, Cheney could hardly have left it at that. The minority report continues:
At the same time, the President must recognize that his preeminence rests upon personal leadership, public education, political support, and inter-branch comity . . . . No President can ignore Congress and be successful over the long term.
The powers of Congress, according to Cheney, and the powers of the President had to be balanced.
Congress must realize, however, that the power of the purse does not make it supreme. Limits must be recognized by both branches, to protect the balance that was intended by the Framers . . . . This mutual recognition has been sorely lacking in recent years.  
But Reagan hadn't just ignored Congress. He had lied to them on various foreign policy initiatives, namely secret money transfers to right wing rebel groups in Nicuargra.    
The president had lied to the American public as well. While he was talking about the war on terrorism, he was vainly attempting to deal with the Iranian Republic by selling them weapons in exchange for their influence in freeing hostages.
Not surprisingly the unchecked executive policy proved to be a disaster on many levels. Large sums of money went missing, government officials fell victim to international swindlers. and hostages were freed, only to be replaced by new hostages and, much to the delight of Iranian hard-liners, "the Great Satan" was exposed as a lying hypocrite.  

In the same reportof the affair , Cheney reportedly sought to change the entire system of checks and balances to match his ideology. As Joseph Lane writing for the Encyclopedia Brittianica blog, notes:
But Cheney’s minority report proved to be more than just a vindication of one president’s actions. It outlines a broad view executive independence that has proven very influential in defining Republican orthodoxy on executive power:
"Congressional actions to limit the President in this area [foreign policy] therefore should be reviewed with a considerable degree of skepticism. If they interfere with the core presidential foreign policy functions, they should be struck down. Moreover, the lesson of our constitutional history is that doubtful cases should be decided in favor of the President."
However, Cheney misses one important point. Oversight. An American president, after all, was never intended to be a king, unquestionable and unrestricted. If Congress doesn't provide some counter to overreach, then who will?

Given this philosophy of the unencumbered executive, any authority in Cheney's hands was a recipe for disaster.  Expanding the powers of the president and members of his staff gave rise to the "imperial presidency."

Another reason that  the conservative adherence to Unitary Executive Theory was so problematic was that it forces a direct confrontation between the two branches. Also it makes  any compromise more difficult and fair arbitration by an independent body nearly impossible. 
That's very different that the cooperative approach envisioned by the drafters of the Constitution.  It was also the warning the Supreme Court gave in the Nixon ruling.

On the other hand, when one party rules both House of Congress and the White House, then literally anything is permissible.
*   *   *
After Reagan and George H.W. Bush, the conservatives seemed to disregard the doctrine to suit their political needs. Congress, under the Republicans, had the right not only to question and influence foreign policy but even demand full disclosure of President Clinton's private life.
This was a departure from the tried and true policy that the Republicans had espoused.
In the 1990s, it was all about full disclosure -even if it meant exposing the president's most intimate sexual exploits. When Independent Counsel Kenneth Star, probed into the Lewinsky sex scandal, he actually declared that "absolutely no one is above the law."
Coming from a federal judge under Ronald Reagan, that's a joke waiting for a punchline. 

When it came to the Iran-Contra affair, practically everybody was above the law. As Bush, Reagan's successor, left office, he was kind enough to grant full pardons to six former officials in Ronald Reagan's Administration for their involvement in the arms for hostages deal. 
President Bush explained this decision as "trying to 'put bitterness behind us,'" That could be a rationalization for any miscarriage of justice. As exceedingly slow as they often are, the millstones of justice are supposed to "grind exceedingly fine." 
Under Republican presidents, they grind to a halt. 

A Return to the Untouchable President
The conservative's sudden reversal of policy Unitary Executive Theory during the Clinton administration didn't last very long. In the George W. Bush presidency, Cheney's philosophy returned with a vengeance.
Jennifer Van Bergen in an 2006 essay points out how President Bush made use of signing statements to allow such things as torture and NSA spying. The president had decided that he had the "unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants." 
Van Bergen writes
..these laws were legislative attempts to strip the president of his rightful powers. Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.
All of this reflects an absolute interpretation of the Unitary Executive Theory. And it had Cheney's finger-prints all over it.
In [Bush's] view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.
We were back to the Reagan "untouchability" and at that time, few Republicans saw anything amiss. Least of those was Dick Cheney.
At the time, journalist Helen Thomas noted:
Vice President Dick Cheney reportedly has been disturbed over what he sees as the erosion of presidential powers since the Watergate scandal and has urged Bush to take a stronger stand against what Cheney sees as congressional intrusions into the executive branch.
It might take some creative thinking and legal double-talk but in the end, any war crime could be rationalized under this approach. 
Cheney’s argument about the shape, scope, and justification for a certain vision of broad executive powers became, by the George W. Bush administration, a staple of Republican orthodoxy that justified many of the abuses of the War on Terror...
Most notably, administration officials "re-interpreted" what was considered torture, due process, the definition of a prisoner of war and how habeas corpus applied to suspects. 
In retrospect, what amazes historians is how easily five hundred years of law protecting civil rights from tyrants and kings could be ignored. And even today, justice is nowhere to be found. 

Cheney: The Keeper of Secrets
Interestingly, another aspect of the Unitary Executive Theory is the idea of  executive privilege. Wikipedia has this definition of that term.
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government to access information and personnel relating to the executive branch.
This has been a fixture of Republican politics since Nixon. In fact, the Watergate crisis brought the matter to a head when the Supreme Court ruled that the doctrine of executive privilege was legitimate but only in the strictest terms. Thus, any prosecutor must show that the material requested is "essential to the justice of the case."  

The legislative and judicial branches cannot subpoena documents simply to satisfy their curiosity. Otherwise, any disclosure from the executive branch is on a purely voluntary basis, not required by law or mandated by the Constitution.

The Supreme Court also made allowance for national security and that became a wide enough loophole for Dick Cheney. 
As vice president, Cheney put executive privilege to its full use by developing his own classification system for all of his official correspondence. Everything became a matter of national security and everything could be hidden from the prying eyes of Congress.

Asserting new classifications was in some ways a master-stroke of the evil genius of Cheney. Hiding behind national security concerns (exempted by the Nixon ruling) the new security classification process prevented Congress or the press from ever getting the full picture of what was really going on. 
Oddly enough, Cheney's preoccupation with secrecy ran contrary to an executive order signed by President Bush in 2003 which demanded agencies and "any other entity within the executive branch" to file reports on classified documents. 
His reasoning? 
As reported by the Chicago Tribune:
The vice president says his office is not an agency, and that the vice president is unique in having both an executive role and legislative role--he is president of the Senate.
Thus Cheney claimed that, as vice president, he was outside of the legal restraints of either the Executive or Legislative branches. Meanwhile, the President thought the executive branch, as a whole, was above the law.

The Hillary Clinton Conumdrum
Executive privilege is, in effect, the very opposite of transparency. also comes into play with the Hillary's private emails. As applied to the US government is also known as and 
Right up until the time Obama took office, anyway. 

There is, of course, a delicious irony here.
As the Republican-dominated Congress searches in vain for some crumb of wrong-doing on Clinton's part, they are willing to cast off the very doctrine that Cheney has tirelessly spent his entire career bolstering. 
Does Congress have the right to demand full disclosure of official documents? The answer is, at least, according to the Cheney creed, absolutely not. 

According to Supreme Court ruling, Congress would have to show that non-disclosure would be a clear attempt to thwart justice. In the Benghazi case, the definitive report clearly showed that the investigation panel could not even find any evidence whatsoever for the spurious allegations they had made earlier. 
The case that Hillary Clinton is somehow evading justice in her personal emails is even harder to prove. It's not even clear what she is accused of. 

Even so, thanks to Dick Cheney, Hillary Clinton can evoke executive privilege any time she wishes. Her cooperation is purely voluntary. 
One final irony. 
The maraschino cherry on the conservative hypocrisy cake. Only last year, Republicans in Congress were howling about the NSA snooping on the American public. How dare the Big Bad Government spy on innocent citizens? What right, they collectively moaned? 
Never mind that it was Mitch McConnell's Protect America Act of 2007 (PAA) that opened the doors for NSA snooping. 
Yet, today they have tossed out their pretend outrage in order to steam open the envelopes of Hillary Clinton's private emails to satisfy their seemingly insatiable curiosity.
*   *   *
Throughout his career, Dick Cheney (and the conservatives that followed him ) have preached the flawed and dangerous doctrine that the president was above the law and above Congressional micro-management.
Yet, today GOP dominated Congress feels it has every right to interfere in the domain of the executive branch. But.. what's become of the Unitary Executive Theory?
To hell with that!
Now the former vice president must watch as his own party makes a mockery of his most cherished principles.

Poor Dick Cheney. He has lived too long and now must watch in silence as his work unravels