On John Yoo

Ken AshfordBush & Co., Constitution, Courts/Law, War on Terrorism/TortureLeave a Comment

Never in my life have I witnessed such incredible incompetence in a constitutional scholar.

I am referring to John Yoo, Bush’s legal advisor on torture and detainee policy, and his gloriously boneheaded op-ed in the New York Times.

Yoo makes this wildly absurd claim:

[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.

This is simply flat-out wrong, and there is absolutely no historical support for Yoo’s assertion.

Of course, Bush himself said the same thing once:

"The legislature’s job is to write law. It’s the executive branch’s job to interpret law."—Austin, Texas, Nov. 22, 2000

The Constitution quite clearly says in Art. II, Sec. 3 that the President "shall take Care that the Laws be faithfully executed".  It does NOT say that he "shall take Care that the Laws be faithfully executed, unless those Laws be wrongheaded or obsolete."

What Yoo is suggesting amounts to a presidential ability to "veto" judicial decisions.  This is decidedly not what the Founders intended.

But don’t take my word for it.  Read Alexander Hamilton:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

The power to interpret laws belongs to the courts.  So says the Founders, in their own words.

It’s a fundamental truth, even acknowledged by the current conservative Supreme Court.  In Hamdi v Rumsfeld, the Court specifically rejected the whole unitary executive theory

[The Government’s position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Now, some of you may think that, because I’m a lawyer, I know these concepts like "separation of powers" and "checks and balances" and all.  And you may think that I have Hamilton’s quotes at my fingertips. 

But the proposition that the President can interpret or ignore "bone-headed laws" simply at will flies in the face of simple sixth grade civics.  Appeals to Alexander Hamilton aren’t even needed.  Heck, you can even go to the U.S. government’s own education-for-kids website and find a clear example of how utterly wrong Yoo and Bush are.  Here’s a snippet from Ben’s Guide to US Government for Kids:

Courts decide arguments about the meaning of laws, how they are applied, and whether they break the rules of the Constitution.

But Yoo thinks the President gets to decide.  As Greenwald asks: "How can you be on the faculty of a major law school and say this?"

GW law professor Orin Kerr is on the case here and here and here.

RELATED: Yoo also wrote:

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap.

The problem is that the President, constitutionally speaking, does not legislate.  He can (and perhaps should) advocate that the "gap" in laws be filled, but he simply cannot unilaterally decide to "fill the gaps" (a euphamism for changing the law) himself.  Again, there is no historical support offered by Yoo to suggest that this is what the Founders wanted.

He’s just wrong.  Plainly, simply, and wildly wrong.

UPDATE:  Funny.  Yoo was against expanding  executive powers before he was for it.  Here’s what he wrote about Clinton back in June 2000:

"President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law."

Anonymous Liberal has even more on Yoo v. Yoo.