Marginal Utility

by Tom Bozzo

Unlike perennial contender Donald Luskin, whose buffonery doesn't exactly set policy, Berkeley law professor John Yoo is a key architect of the theories of executive power under which George W. Bush claims the power to eavesdrop on your communications without a warrant, declare you an enemy combatant and lock you up without access to counsel indefinitely, subject you to interrogation tactics that constitute torture by any sensible definition of the term, etc.

In today's NYT, Yoo tries to explain how these arrogations of power and many more are just Bush's good faith effort to restore the system of checks and balances back to their natural state. To buy this argument, you'd have to have failed American history somewhere in middle school age, having believed that the Founders declared independence to establish a more perfect monarchy.

But Yoo's column has one whopper that transcends the mere dangerous misguidedness of his theories, and into just total stupidity. That is:

The changes of the 1970’s occurred largely because we had no serious national security threats to United States soil...

Oh, really?

A close runner up is:

[A] fragmented legislature is obviously much easier to game than a chief executive.

Obviously, it depends on who the chief executive is. Insofar as Bush hadn't exactly run on a stronger-executive platform, I suspect that the Administration's monarchists found themselves an especially easy-to-game chief executive.

Addendum: Charles Pierce also remembers this "Cold" war at Tapped.
Pierce also reminds us that the "What part of 'The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish'" award goes to:

[Yoo:] The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. [Emphasis added.]

More analysis of other substantive errors in Yoo's column may be found at LGM, Greenwald, The Heretik, TalkLeft, and the Volokh Conspiracy. Elements of the Bush apologist contingent are quiet on the subject, though I recall Ann asserting, in the course of taking her shots at Judge Anna Diggs Taylor on the NYT op-ed page, the following:

[The WPE] isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law. It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president... Why should the judicial view prevail over the president’s?

The last is easy enough — even I remember Article III, Section 1 (q.q.v.). As for "isn't arguing that he's above the law," you certainly may define "the law" such that the statement is technically true, but it's nevertheless "sheer sophistry." The argument, in slightly less gross summary, is that supposed limitations on Congress's legislative power place the president above some legislation passed by Congress (and signed by the president), but not all of it. On the face of it, Article I, Section 8 appears to give Congress pretty broad latitude to regulate the U.S. Government and "any department or officer thereof," and Article II, Section 3 doesn't directly circumscibe "the laws" that the president "shall take care... be faithfully executed." So an armchair observer of constitutional law might be forgiven for thinking that "president not bound by legislation (or other equivalent law)" is an extraordinary claim. We may "need to take it seriously," but not so much because it withstands serious scrutiny outside the confines of friendly law reviews as that the consequences of ignoring the power grab are dire.