Yesterday, I had a spirited debate with Berkeley Professor and former Bush Administration lawyer John Yoo at Christopher Newport University’s Center for American Studies (CAS). The debate was structured around the question of “Filling in the Gaps: Is Executive Prerogative Constitutional?”
Yoo served as the Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice (OLC) during the George W. Bush administration. He is best known as one of the authors of the so called “torture memos” that legitimated waterboarding and other interrogation techniques long defined as torture and violations of the Geneva Conventions. The debated however focused on the broader question of the rise of executive power in the executive states. Yoo has long been an advocate for a dominant executive power in the United States and has written books arguing that presidents have sweeping powers, particularly in the areas of foreign affairs and national security.
The debate predictably revealed almost inversive views of presidential power. Yoo warned that we are living in a period of “judicial supremacy” where courts have become too intrusive into political questions and crisis management. I have long complained of the relative passivity of the courts in avoiding such questions through excessively narrow standing doctrines and the rise of an uber-presidency.
Yoo pointed out that all of the presidents who have acted unilaterally or boldly without Congress or the courts are now ranked as our most popular. While this sounded a bit like a “Got War?” campaign for presidential popularity, I disagreed with Yoo’s account of both the Framers as well as presidential history. Yoo received the biggest response when he ridiculed Rand Paul’s pledge that as president he would limit this actions launching military campaigns in line with the Constitution and seek greater congressional involvement. Yoo said it was a laughable position that would was no way to attract support and that the most popular presidents were the “strong” ones who did not run to the Congress or the courts to protect the country. He compared electing Paul president to selected a drug dealer to head a police department. I strongly disagreed with Yoo’s recurring notion of a president who consults with Congress as “weak” as well as the analogy of Rand to a drug dealer.
Ironically, I will be debating Yoo again on Thursday. Despite our extreme disagreements, Yoo has always been a civil and engaging person in these debates. We spoke with students before the debate and had lunch with the faculty. Yoo was very eager to speak with students and we actually agreed on a couple items in this discussion about undergraduate core curriculum and some domestic legal issues.
I particularly enjoyed visiting the 260-acre campus in Newport News of Christopher Newport University, which is beautiful. Much of the campus has been built in the last 20 years and they planned it out beautifully. The level of excitement and success at the university is incredible. I particularly loved the statue of Christopher Newport at the entrance but asked about one anomaly: he has two arms when 1590 (early in his career as a privateer) he lost his right arm during his attempt to capture a prize ship off of Cuba. Yes, Newport was viewed as a pirate but he preferred privateer and he was a very cool historical figure. What I do not understand is why the school is not tapping into the whole Pirates of the Caribbean buzz as the Newport “Pirates.” How cool is that? (except for the challenge from any descendants of the pirates over trademark licensing following the Redskins ruling). By the way, the President of the University insisted that he simply commissioned a statue that depicted Newport the day before he lost the arm so it remains historically accurate. Can you tell that President Paul S. Trible Jr. is a former U.S. Senator?
Today I am in Utah to give two speeches at the Utah Valley University’s Center for Constitutional Studies. It will be an exciting day with other speakers including University of Chicago Professor Richard Epstein, Robert O’Neil, former president and professor emeritus at the University of Virginia, New York Times columnist Stanley Fish, professor of human resource management at Rutgers University Barbara Lee, expert on health information Deborah Peel, and Eugene Volokh, author and law professor at UCLA. I will be speaking this afternoon in Orem, Utah on free speech issues.
Why did you even bother? the man should be disbarred and improsoned.
Presidential power was the subject of the debate. As JT has said here many times, and what I agree w/, is that Obama is the King of abuses, making Nixon envious.
Annie: “How was the comment @ 4:39 “substantive”?”
Right? Self awareness is not a Glibertarian strong suit.
No worries. I’m not trying to remain anonymous; it’s just less confusing when other John’s are in the blog.
“U.S. military “boots on the ground” deployed to Africa to fight war on Ebola.”
Africa is not the taxpayer’s burden and this must be stopped by Congress.
The Executive branch does not have the power to deploy the military in Africa. The military does not exist to resolve medical problems. Africa can impose an effective quarantine.
“The Founders…assure…the…President…Commander in Chief…was free of all foreign influence…that its holder has sole and absolute allegiance, loyalty, and attachment to the U.S.”
The ineligible, expatriated-Indonesian president/commander-in-chief is squandering American taxpayer money in sympathy with the “foreign allegiances” of his foreign-citizen father which were precluded by the Founders when they increased the eligibility requirement from “citizen” to “natural born citizen” requiring two citizen-parents.
The President is not a King.
The People, the sovereigns, through Congress, tax, spend and act.
The President executes those acts.
Congress has the constitutional power to declare war and deploy the military. Congress has the duty to assure the Constitution has force and prevails.
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“It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to George Washington the following letter dated July 25, 1787:
“Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen (underlying “born” in the original).”
Jay’s recommendation did make it into the Constitution. Article II, Sec. 1, cl. 5 of the Constitution provides in pertinent part: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. . .” In this clause and in Articles I, III, and IV, the Founding Fathers distinguished between “Citizen” and “natural born Citizen.” Per the Founders, while Senators and Representatives can be just “citizens,” the President must be a “natural born Citizen.” Through this clause, the Founders sought to guarantee that the ideals for which they fought would be faithfully preserved for future generations of Americans. The Founders wanted to assure that the Office of President and Commander in Chief of the Military, a non-collegial and unique and powerful civil and military position, was free of all foreign influence and that its holder has sole and absolute allegiance, loyalty, and attachment to the U.S. The “natural born Citizen” clause was the best way for them to assure this.”
Spinnelli: ” I think the fact that JT points out that he and Yoo had a spirited, substantive, and civil debate escapes the haters here. They might prefer a cartoon of the debate.”
Haters? I never excused the very torture we executed the Japanese for using.
Yoo is the hater. If he wants respect, he has to earn it. Instead, he is treated equally with the professor, which is sick.
The guy said it would be OK to crush a terrorist’s child’s testicles, fer Chrissake.
And Nick calls me the hater and one who prefers cartoons.
BTW: how civil of you, Nick!
Civility is necessary for the proper function of courtroom procedures.
It is not necessary, or earned, when Yoo is out in public, where he should be ridiculed and harassed everywhere he goes.
A terrorist child can kill you just as quick as an adult. Any reason not to use enhanced interrogation on them as well?
Oops, sorry I mean Olly. Sorry!
How was the comment @ 4:39 “substantive”?
http://constitution.findlaw.com/article2/annotation16.html
It appears that JohnO is correct. So John what do you base your assertion that the Congress enforces the Consitution on?
I’m on record as being in the JT camp regarding presidential powers and the abuses we’ve seen. By pointing out the haters, my goal is to shame them into getting substantive. Unfortunately, some are shameless, others have no substance, an a select few are the double whammy.. C’est la vie.
“Executive Prerogative” seems to be the Executive branch version of the “Necessary and Proper” clause. It seems to be the logical “power” to the “you never want a serious crisis to go to waste” policy. Ignore ISIL until that point where it becomes a crisis and then use executive prerogative to justify action. Ignore the porous border until it becomes a “humanitarian” crisis and then use executive prerogative to justify action. Overwhelm the immigration system until it becomes a crisis and then use executive prerogative to grant amnesty.
Executive prerogative is a tyrannical weapon in the hands of a President disinterested in the separation of powers. It’s proper use requires humility and we haven’t seen that in the Executive branch since Ronald Reagan.
No
Doesn’t the Supreme Court enforce the Constitution ultimately?
Torture by deliberate omission.
Churchill on Coventry.
Roosevelt on Pearl Harbor.
Houston on the Alamo.
No matter the motivation, pain is inflicted by deliberation. War is hell. Combat is a mother——. Stuff happens.
What was My Lai, madness?
Rationalize and justify the pain. You will if it’s your daughter/wife.
“Necessity is the mother of invention.” – Unknown
“Congress orders what America will do and enforces the Constitution.”
Um no. The enforcement arm of government is the Executive.
Water boarding or drone strike, which would you personally choose? Hmm….
One “hater”… does not a group of “haters” make.
Stop obsessing about “the haters” and focus on the issues.
anonymous, That’s cool, I’m glad I’m not related to you or my life hopefully won’t ever depend on your actions.
“I have long complained of the relative passivity of the courts in avoiding such questions through excessively narrow standing doctrines and the rise of an uber-presidency.”
Congress has failed in its duty to assure adherence to the Constitution by all three branches. Congress has given free rein to the Executive and Judicial. The Executive and Judicial engage in power grabs through overreach and omission.
Constitutional power exists in the sovereigns, the citizens, the people the voters. That is the Congress. Congress, by the people, decide what the nation will do.
The Congress, then Senate, then Executive and Judicial.
Congress orders what America will do and enforces the Constitution.
The Executive must carry out those orders.
The Judicial must assure that actions comport with the orders of Congress.
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The inmates have taken over the asylum.
“I’ll be honest. I’m a Bush hater, hate, hate, hate.” 11:36am.