Elizabeth Cheney, Bush Legal Counsel
What a 1988 college thesis by the former vice president's daughter tells us about the Bush presidency.
From beginning to end, it's clear that Cheney looks upon the model of the powerful executive approvingly. Her most forceful conclusion is that the Founders "certainly did not intend, nor does history substantiate, the idea that Congress should legislate specific limits on the President's power." To ensure American security, it needs to recognize that the "nature of military and foreign policy demand the 'unity of a singular Executive.' "
One cannot help but see echoes of this conclusion in the administration in which her father was so influential. The Bush White House repeatedly embraced the philosophy of acting first and asking for approval later, especially on issues that involved the power of the purse. They embraced a position that Cheney found repeatedly in history: "The president's duty to protect national security sometimes come before his responsibility to keep Congress informed."
This crusade against oversight was not new to Dick Cheney. In November of 1987, just six months before Elizabeth submitted her thesis, a report he commissioned following the Iran-Contra affair argued that "[c]ongressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism."
For Cheney, apparently, the Constitution and rule of law are no more of a check on this unitary power than Congress. During the Civil War, Abraham Lincoln's suspension of habeas corpus and imposition of military tribunals present no legal dilemma to her. "To assert that the Constitution is a shield of protection 'for all classes of men, at all times and under all circumstances,' " she writes, "is to deny the nation the right of self-preservation. There have been and will be times in the experience of the country when constitutional provisions will of necessity be suspended to guarantee the survival of our democracy." The Supreme Court's chief justice was wrong in declaring his actions illegal in Ex Parte Merryman because his power "was actually an assertion of the power of the people."* How he divined that will of the people, Cheney does not explain.
On the first page of her paper, above a neat signature in blue ink, she attests, "On my honor I have neither given nor received unauthorized aid on this thesis." Her father may not have written her thesis, but before and after its publication, he held unwaveringly to its ideas. As a report on an exit interview the outgoing vice president gave with CBS notes:
While Cheney could not say whether any action by a president in wartime should be considered "legal," he pointed to historic precedents for presidents taking extra-legal measures in order, he said, to protect the Constitution against all enemies, foreign and domestic.
That statement could well have been printed on the cover of his daughter's thesis.
Correction, Jan. 30, 2009: This article originally referred to Ex Parte Merryman as a Supreme Court case. It was a circuit court order written by Roger Taney, the chief justice of the Supreme Court, who was sitting on the circuit court at the time. (Return to the corrected sentence.)
Zac Frank is a speechwriter and freelance journalist in New York City.