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

180px-john-yooturley_jonathanYesterday, 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.

300px-CaptChristopherNewportStatue01I 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.

88 thoughts on “The Yoo-Turley Debate: Two Antithetical Views Of Presidential Power”

  1. I find it ironic that we can’t dunk an enemy’s head and threaten them to give us important information in order to save thousands or millions of lives, but we can bomb the enemy and kill thousands of innocent people along with them in the process.

    However, we have branches of government to keep each other in check. The president should not be given executive power in areas of war. On the other hand, we have a Congress that is only motivated by being re-elected and party lines, not what’s right for the country; they fiddle faddle while the country desinegrates and degenerates.

  2. From Carl Eric Scott at the National Review

    So I went to a Constitution Day debate that featured a leading conservative champion of robust, but scrupulously constitutional, presidential prerogative power for foreign policy and military purposes, John Yoo. Yoo’s performance was in general very under-whelming—either he was off his game or is simply a much better writer than speaker—but here’s the shocking thing: he barely even mentioned the president’s promise to just say the hell with the separation of powers.

    Much better in all ways was his opponent, the Democrat-voting scholar Jonathan Turley. He at least mentioned it, and with some heat. He at least brought some passion to the table, saying that Obama, whom he voted for, “is the president Richard Nixon wanted to be!” and that “Obama’s becoming the danger the Constitution was designed to avoid!” Wow. The audience, mostly students at Christopher Newport University, warmed to his comments all right.

  3. Jill: Thanks for that FYI. And I agree with everything else you said about weak leaders and the ineffectiveness of torture.

    Shulte: Whatever about torturing child soldiers; Jill was talking about torturing children in order to elicit information from parents. Apparently, it’s the same old same old with you.

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