The Yoo-Turley Debate: Two Antithetical Views Of Presidential Power

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.