Dick Cheney and the rule of law

For a man with "other priorities," democracy can be such a hassle.

Published December 21, 2005 5:42PM (EST)

Vice President Dick Cheney cut short his trip to the Middle East and Asia to get back to Washington in time to cast the tiebreaking vote on a $40 billion budget-cutting bill in the Senate today. We don't doubt that the need to vote on the measure was inconvenient for Cheney. He surely had -- as he did when it came time to serve in Vietnam -- "other priorities."

But Article I, Section 8 of the U.S. Constitution gives Congress authority over the money required to "provide for the common Defence and general Welfare of the United States," and bills don't get out of the Senate without majority support. So when the White House couldn't get more than 50 of the 55 Republicans in the Senate to make a show of budget discipline by imposing cuts in Medicare, welfare and student loans, Cheney had to come home from his trip early to cast the deciding vote. That's how the system is supposed to work. Article I, Section 3 of the Constitution says so: When senators are "equally divided," the vice president, as president of the Senate, gets the tiebreaking vote.

Is it inconvenient? Inefficient? Insufficiently "agile" sometimes? Yes, it's all of those things. But we're betting that nobody in the Bush administration entertained the idea of simply imposing $40 billion in budget cuts by secret administrative fiat. Our government -- our democracy -- doesn't work that way, and everyone knows it.

Or at least we thought that everyone knew it. As Cheney made his way back to Washington Tuesday, he defended the Bush administration's decision to spy on American citizens without warrants -- as Congress had required in the Foreign Intelligence Surveillance Act of 1978 -- as part of a broader White House effort to expand the powers of the executive branch. "I believe in a strong, robust executive authority, and I think that the world we live in demands it," Cheney told the New York Times. The vice president said he believes that that the pendulum of power swung too far toward Congress and the courts after Watergate and Vietnam, and that it's time for it to swing back toward 1600 Pennsylvania Ave.

Cheney may well be right -- there are arguments to be made for a stronger executive, just as there are arguments to be made against it. But those are arguments to be made as part of a debate, not justifications for avoiding one. When the Bush administration decided that it wanted to start spying on American citizens without the warrants the law requires, it could have gone to members of Congress or their constituents and argued -- as Cheney did Tuesday -- that it's "the right thing" to do and "ought to be supported." We could have had a debate about that. Maybe, in the process, we would have had a high-minded discussion about the relative powers of the three branches of government. More likely, amid the passion and the panic that followed 9/11, Congress would have rolled over and given the president just about any power that he requested. See Patriot Act, passage of.

Instead, the White House -- enthralled with Cheney's visions of a powerful executive and John Yoo's promise of infinite presidential powers -- simply took for itself what it might have been given if it had asked. The ultimate irony: In taking the power for itself, the Bush administration may have done damage to its war on terrorism and its vision of executive power as well. Judges on the Foreign Intelligence Surveillance Court have already indicated an unwillingness to issue warrants based on information obtained through warrantless wiretaps. And if a terrorist suspect were ever charged with a crime based on such information, he'd have a solid argument for repressing illegally obtained evidence, or the fruits thereof, at trial.

Meanwhile, Congress will begin investigating the warrantless surveillance program early next year. Maybe that will lead to legislation -- as if it's necessary -- explicitly curtailing the spying program. Maybe it will lead to sanctions against those involved in it. But at the very least, it should lead to the debate Cheney says he wants to have about the power of the presidency. But because of the way Cheney and Bush went about their surveillance work, that debate will occur in the context of a discussion about the abuse of presidential power, not the need for more of it.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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