His legacy is bracing:
- The legitimization of "dark" camps, where overseas torture took place regularly;
- The disaster at Abu Graib, where the same things happened (except someone took pictures);
- The attempt to constitutionally justify "extraordinary rendition," which is torture by another name;
- FISA courts, which keep discovery of what it has taken to get hold of suspected terrorists and their information out of the public eye; and
- Of course, the continued denial of civil and constitutional rights of those held at Guantanamo Bay for 17 years running, since they remain in a legal kind of limbo where we're not at war but they're declared excessively dangerous nonetheless.
Yoo, a professor at the University of California's main campus in Berkeley, is an unabashed believer in the maximum amount of presidential power that can be absorbed by our constitutional system, which is practically anything. He doesn't think that 45's threat to slam the country with an emergency declaration would be all that big of a deal. In fact, he compares it favorably to what other, far more competent presidents, have done even more than 200 years ago.
Yes. On Fareed Zakaria's CNN Sunday show, "GPS", Yoo compared 45's suggested need to place the nation on alert with:
- Jefferson's decision to purchase the Louisiana Territory in 1803, instantly doubling the size of the nation--an unprecedented end-run around the Congress, made by a president who, to that point, believed in strict construction;
- Lincoln's suspension of constitutional rights such as habeas corpus during the Civil War;
- Franklin Roosevelt's efforts to gain power during the Great Depression--something he actually announced he wanted Congress to do in his first inaugural address; and
- Truman's decision to seize the production of U.S. steel, thus subverting a steelworkers' strike in 1950, during the Korean War, an act declared unconstitutional by the Supreme Court in Youngstown Sheet and Tube v. Sawyer in 1951.
A Simple, Flawed Philosophy: The Unitary Executive Theory
Yoo's philosophy can be summarized thus: first, presidents can take as much power as they want as long as Congresses permit them to do it, the only barrier being impeachment and removal; and second, these issues were never meant to be resolved by the courts. The Founding Fathers, he postulates, never meant the courts to get involved in these issues, and they wanted the presidency to be a position in which the nation's leader could address crises as they arose and act quickly. This philosophy, called the unitary executive theory, was a vital part of what the obsequious Dick Cheney utilized to seize extraordinary powers while Vice-President, circumventing the hapless Bush-43, controlling the messaging and much of policy leading up to the Iraq War (Please see the movie "Vice" to observe the disastrous results.).
Yoo's philosophy can be summarized thus: first, presidents can take as much power as they want as long as Congresses permit them to do it, the only barrier being impeachment and removal; and second, these issues were never meant to be resolved by the courts. The Founding Fathers, he postulates, never meant the courts to get involved in these issues, and they wanted the presidency to be a position in which the nation's leader could address crises as they arose and act quickly. This philosophy, called the unitary executive theory, was a vital part of what the obsequious Dick Cheney utilized to seize extraordinary powers while Vice-President, circumventing the hapless Bush-43, controlling the messaging and much of policy leading up to the Iraq War (Please see the movie "Vice" to observe the disastrous results.).
It's a nice, neat position, based on what any member of the Federalist Society would agree with, especially the part about basing any constitutional position on what they think the Founding Fathers would have thought. So not only is the Constitution unarguable in its literal, constricted, most simplified sense, but what the Founders thought about it--or, better, what current Federalists thought they thought about it, is also unarguable and isn't worth the discussion--except what it does is disguise the extension of extraordinary powers behind a facade of insisted constitutional limitations--a built-in disingenuousness while a few people roam about, skirting accountability while convincing themselves that they, and only they, can solve the nation's problems (As 45 said during the campaign, "I alone can fix.").
That is all nonsense. The discussion about the balance and separation of powers has been going on since the Constitutional Convention--in fact, far before that--and played out again within the state ratification conventions, in which some of the votes were precariously close (Massachusetts, New York, Virginia) and nowhere near what one could call consensus. What we were left with, and now have with subsequent amendment adjustments, are the same kinds of compromises that:
It is, and always has been, an attempt to promote government power to accomplish what government sets out to do without skewing and leaning too far in one direction at the expense of other, equally salient interests, creating and reflecting the popular will.
Yoo thinks that impeachment is the kind of thing that can, you know, always take place if people care enough about it. But there have been exactly three impeachment movements against presidents in our history, and the two that actually went to trial took place amidst an atmosphere of overreach and therefore failed to convict (The other, that of Nixon, did not need to proceed to the trial phase before he resigned--which is a positive by-product of that process; he saw the writing on the wall, but only after Republicans turned on him at the last possible minute.).
What Yoo conveniently chooses not include in his argument--and did not choose to mention in his interview with Zakaria--is that the Founding Fathers did not foresee the development and institutional hardening of our two-party political system after floating into place: stable but inflexible, giving voters too little choice within a presidential democracy, not a parliamentary democracy where branch parties can flow and create temporary coalitions to address where a nation happens to be at a particular moment to create legislation and helpful policy. But they are here and they do create patterns of behavior that are undeniable. No significant politician today acts without checking over their shoulders at what the party faithful feel so that they do not become the party unfaithful.
Political parties have their internal discipline, where one who strays can be banished and ruined instantaneously for reasons having little to do with justice and the rule of law and far more about mobocracy and tribalism. Thus the seven Republican Senators who saw the unconstitutional set-up of their fellow party members against Andrew Johnson (the Tenure of Office Act, later declared exactly that by the Supreme Court), bad as he was, then crossed over and voted for his acquittal in 1868 were never elected again. Thus the Republicans who managed to finally get Bill Clinton to lie about his love affair in the Oval Office on record could pretentiously strut their religiously-conjured, quasi-legalistic charges against him into the Senate in 1998, only to find that Democrats called them out for a set-up that didn't rise to removable violations. So there was a winking at the rule of law (the law in this case being a non sequitur of court-ordered and bureaucratic arrangements having little to do with each other, kind of like a shish-ke-bob of ham, muskmelon and celery; hey, it's all food except they don't belong together, except they forced it down our throats anyhow) to arrange for a messy kind of justice because one side was too hypocritically angry (exposed by, in a way that reflected the twisted attempts at justice, a pornography mogul) to see a president's popularity (polling a consistent 70% at the time of the trial) to understand that what it was doing was off the rails. (Granted, what Clinton should have done was resign, which probably would have gotten Al Gore the extra 538 votes in Florida, except the by-then lividly crazy Republicans probably would have tried to impeach Gore for the 9/11 that probably would have happened anyhow.)
The Salience of the Courts, More or Less
But perhaps the utterance that was most revealing from Yoo was something he said as kind of an aside at the end of the interview with Zakaria: that in his view, the Founding Fathers could not have concluded that the courts were the places to take the issue of the declaration of a national emergency by a president--that Congress could control the issue by refusing to grant funding for whatever and however a president chose to accomplish its observance. That's assuming a consensus that Congress rarely, if ever, achieves about anything, the portentiousness of which would make members get over the grudges they keep for a long, long time--and which are all-too-fresh, what with Merrick Garland and the present shutdown ever-present in Democrats' minds. 45 knows this all too well, and can step on those wounds and create agony, even with his popularity numbers beneath 50 percent for nearly all of the last two years.
What the nation's going to look like when this stalemate ends will be ugly indeed, and maybe that's part of 45's plan to make people rely on him for an answer regardless of how bad things get. In his mind, it's still all dependent on him. He would be wise not to declare a national emergency for that reason, because then the courts will have to intervene. That is an interesting part of Yoo's thinking: Founding Fathers, again, could not and did not foresee that with Marbury v. Madison in 1803, John Marshall carved out a place for the Supreme Court to exist in terms of defining what the Constitution means--beyond what it was originally intended to do within a rather limited focus of solving interstate legal issues, desperately needed at the time.
One can make the argument that Marshall's declaration was extra-constitutional, an expansion of authority that has transcended time and circumstance but through acceptance and observance has established itself as deeply as any other aspect of our jurisprudence--except its rulings are respected as law only to the degree to which other legal entities appreciate them. They can be ignored, too, as Andrew Jackson did when the Court said he shouldn't make the Cherokees leave their native Georgia in the 1830s. This observer is waiting, too, for 45 to ignore, and announce like Jackson that he is ignoring, something it will rule on in the near future--especially as it relates to turning over documents such as the upcoming Mueller report.
The Dangerous Result: A Crisis Just Around the Corner
Wait and see. 45 will use what he will claim as his own unitary executive power--now a buzzphrase amongst Federalists--to justify a new wall, that of preventing the viewing of the Mueller report or the most significant, most damning parts of it, and dare even the Supreme Court to make him turn it over: as in, I dare you to come and get it.
Looking for a constitutional crisis? It's just around the corner. John Yoo started it to justify one disaster, creating quite another.
Be well. I'll see you down the road.
Mister Mark
That is all nonsense. The discussion about the balance and separation of powers has been going on since the Constitutional Convention--in fact, far before that--and played out again within the state ratification conventions, in which some of the votes were precariously close (Massachusetts, New York, Virginia) and nowhere near what one could call consensus. What we were left with, and now have with subsequent amendment adjustments, are the same kinds of compromises that:
- Also arranged for slavery to continue in the United States, but to end the slave trade after 1808;
- To count slaves as 3/5 of a person for purposes of the census to tax states fairly;
- To popularly elect members of the House of Representatives, but (originally) allow the state legislatures to elect U.S. Senators, and a special select few to elect the President (also originally) with independently determined votes; and
- To make one house of Congress directly responsive to the people, while the other house represents the states as separate, semi-sovereign entities, answerable to the Supremacy Clause in Article 6, a very large part of what the Civil War was fought over.
It is, and always has been, an attempt to promote government power to accomplish what government sets out to do without skewing and leaning too far in one direction at the expense of other, equally salient interests, creating and reflecting the popular will.
Yoo thinks that impeachment is the kind of thing that can, you know, always take place if people care enough about it. But there have been exactly three impeachment movements against presidents in our history, and the two that actually went to trial took place amidst an atmosphere of overreach and therefore failed to convict (The other, that of Nixon, did not need to proceed to the trial phase before he resigned--which is a positive by-product of that process; he saw the writing on the wall, but only after Republicans turned on him at the last possible minute.).
What Yoo conveniently chooses not include in his argument--and did not choose to mention in his interview with Zakaria--is that the Founding Fathers did not foresee the development and institutional hardening of our two-party political system after floating into place: stable but inflexible, giving voters too little choice within a presidential democracy, not a parliamentary democracy where branch parties can flow and create temporary coalitions to address where a nation happens to be at a particular moment to create legislation and helpful policy. But they are here and they do create patterns of behavior that are undeniable. No significant politician today acts without checking over their shoulders at what the party faithful feel so that they do not become the party unfaithful.
Political parties have their internal discipline, where one who strays can be banished and ruined instantaneously for reasons having little to do with justice and the rule of law and far more about mobocracy and tribalism. Thus the seven Republican Senators who saw the unconstitutional set-up of their fellow party members against Andrew Johnson (the Tenure of Office Act, later declared exactly that by the Supreme Court), bad as he was, then crossed over and voted for his acquittal in 1868 were never elected again. Thus the Republicans who managed to finally get Bill Clinton to lie about his love affair in the Oval Office on record could pretentiously strut their religiously-conjured, quasi-legalistic charges against him into the Senate in 1998, only to find that Democrats called them out for a set-up that didn't rise to removable violations. So there was a winking at the rule of law (the law in this case being a non sequitur of court-ordered and bureaucratic arrangements having little to do with each other, kind of like a shish-ke-bob of ham, muskmelon and celery; hey, it's all food except they don't belong together, except they forced it down our throats anyhow) to arrange for a messy kind of justice because one side was too hypocritically angry (exposed by, in a way that reflected the twisted attempts at justice, a pornography mogul) to see a president's popularity (polling a consistent 70% at the time of the trial) to understand that what it was doing was off the rails. (Granted, what Clinton should have done was resign, which probably would have gotten Al Gore the extra 538 votes in Florida, except the by-then lividly crazy Republicans probably would have tried to impeach Gore for the 9/11 that probably would have happened anyhow.)
The Salience of the Courts, More or Less
But perhaps the utterance that was most revealing from Yoo was something he said as kind of an aside at the end of the interview with Zakaria: that in his view, the Founding Fathers could not have concluded that the courts were the places to take the issue of the declaration of a national emergency by a president--that Congress could control the issue by refusing to grant funding for whatever and however a president chose to accomplish its observance. That's assuming a consensus that Congress rarely, if ever, achieves about anything, the portentiousness of which would make members get over the grudges they keep for a long, long time--and which are all-too-fresh, what with Merrick Garland and the present shutdown ever-present in Democrats' minds. 45 knows this all too well, and can step on those wounds and create agony, even with his popularity numbers beneath 50 percent for nearly all of the last two years.
What the nation's going to look like when this stalemate ends will be ugly indeed, and maybe that's part of 45's plan to make people rely on him for an answer regardless of how bad things get. In his mind, it's still all dependent on him. He would be wise not to declare a national emergency for that reason, because then the courts will have to intervene. That is an interesting part of Yoo's thinking: Founding Fathers, again, could not and did not foresee that with Marbury v. Madison in 1803, John Marshall carved out a place for the Supreme Court to exist in terms of defining what the Constitution means--beyond what it was originally intended to do within a rather limited focus of solving interstate legal issues, desperately needed at the time.
One can make the argument that Marshall's declaration was extra-constitutional, an expansion of authority that has transcended time and circumstance but through acceptance and observance has established itself as deeply as any other aspect of our jurisprudence--except its rulings are respected as law only to the degree to which other legal entities appreciate them. They can be ignored, too, as Andrew Jackson did when the Court said he shouldn't make the Cherokees leave their native Georgia in the 1830s. This observer is waiting, too, for 45 to ignore, and announce like Jackson that he is ignoring, something it will rule on in the near future--especially as it relates to turning over documents such as the upcoming Mueller report.
The Dangerous Result: A Crisis Just Around the Corner
Wait and see. 45 will use what he will claim as his own unitary executive power--now a buzzphrase amongst Federalists--to justify a new wall, that of preventing the viewing of the Mueller report or the most significant, most damning parts of it, and dare even the Supreme Court to make him turn it over: as in, I dare you to come and get it.
Looking for a constitutional crisis? It's just around the corner. John Yoo started it to justify one disaster, creating quite another.
Be well. I'll see you down the road.
Mister Mark
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