Balkinization  

Monday, September 18, 2006

How the Presidency Regained Its Balance, Indeed

JB

Many people have critiqued this op-ed by John Yoo in Sunday's New York Times, and I won't repeat their arguments here. I'm particularly interested in Yoo's suggestion that the President is simply restoring a vision of power that was unwisely diminished in the past 30 years. Even putting aside the historical inaccuracies in Yoo's claims, the elephant in the room is why Congress reasserted its powers in the 1970's. The reason was disgust at Executive overreaching. The President broke the law and spied on the American people in the name of national security. He resigned in disgrace. His party was punished at the polls, and the opposition gained seats in Congress. They used their increased power to correct his excesses in ways that Yoo does not like.

What lesson can we draw from this episode? Is it that the President is finally obtaining the correct degree of power he should always have enjoyed but for a wicked and power-hungry legislature? Or is it rather that in the long run a system of checks and balances tends to punish aggrandizement with diminution, so that if one branch overreaches, the others will eventually respond?

I dispute Yoo's suggestion that the Presidency was in eclipse between 1974 and 2001. But even if he is in the slightest degree correct, it was the fault of Richard Nixon as much as any other person. Eager to expand Presidential power, he ended up provoking opposition that contracted it instead.

Now once again we have a President pushing the constitutional envelope, and, in Professor Yoo's words, "declar[ing] that the Constitution allows the president to sidestep laws that invade his executive authority," a President following "the founders['] inten[tions] that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." (I think the latter claim is historically specious, but I shall let it pass).

Does Professor Yoo think that in the long run these aggressions will go unchecked, and that a pendulum pushed so hard will not eventually move back in the opposite direction? Does he seriously think that in a system like our own, the piper will never have to be paid? Of course, if the President's party remains popular forever, and controls all the branches of power forever, he will meet with little opposition. But our system, thankfully, makes that quite difficult. As soon as the President and his party falter, lose popular support, and control of all three branches, the defections, and then the investigations, will begin.

The President has justified his authority on the basis of crisis, or as Professor Yoo once put it, on the need for "creative solutions" to the threats we face. Yoo himself was the apologist for many of these "creative solutions" at the OLC, eager to tell his superiors that they could do whatever they wanted, regardless of statutes, decisions, or treaties that might appear to the contrary. But crisis cannot last forever, fear cannot be sustained indefinitely, and incompetence will eventually become manifest. And when this happens, the political forces once held in check will be unleashed, slowly at first, and then with increasing force. What was once justified as creativity now looks like rank illegality, what was once praised as resolution now looks like disconnection from the real world, and what once was cheered as boldness now looks like arrogance and hubris. When that happens, the other branches, seeing the opportunity, will assert themselves at the President's expense. Madison had a name for it; I believe he called it ambition countering ambition.

Given Professor Yoo's proud defense of presidential prerogatives, it would be ironic indeed if his handiwork ultimately proved so unpopular that it led to a political reaction that rejected the Administration's claims and created new legal and political restraints on the Presidency.

Ironic it would be, but it has happened before-- with Richard Nixon's presidency in the early 1970's-- the very moment that Yoo regards as the high water mark from which we have so precipitously fallen. Before Professor Yoo celebrates the glorious achievement of an unbridled Presidential authority, he might consider whether his eagerness to please the Administration's ceaseless demands for power will ultimately backfire, and whether in the long run he will prove the unwitting catalyst of a new diminution in the powers of the Presidency.


Comments:

As I understand it, Bush and Cheney share Yoo's basic view that the executive was unreasonably restricted by illegitimate legislative usurpations after Watergate.

This view is profoundly ahistorical, particularly for anyone who claims any sort of fidelity to the "original" Constitution. The fact is that the size, scope and power of the executive have grown far beyond what anyone in the eighteenth century could have imagined.

I am not saying that fidelity to the original spirit of the Constitution requires us to govern today's society with an eighteenth century executive -- such an undertaking would be absurd. But it does mean that the executive is far more powerful, and therefore more dangerous, than it was in the eighteenth century, and therefore needs to be more closely restrained.
 

Reminds me of "How Stella Got Her Groove Back" by Terry McMillan as a title. Yoo is hallucinating.
Best,
Ben
 

Yoo must be thinking of the original european founders of this country - the ones who colonized it.
 

Yoo, of course, has no skin in the game any more. So he's free to spew whatever garbage he likes. After all, we expect nothing less from our professors than ceaseless promotion of their own insane, grand-unifying-theories-of-everything.

What's even sadder than Yoo's delusions is the fact that major American newspapers still print them as though they were worthy discourses, merely because he once occupied an office at OLC. A prestigious achievement, to be sure. But how long are we supposed to permit him to dine out on that story? Particularly when we can all see he's completely in outer space on this issue.
 

for me, the key to whether or not yoo and his ilk really believe themselves or are merely apologists for the present administration will be if they still hold the same views when the inevitable day comes when the office of the presidency is held by a member of another political party. my guess is that we will see an entirely different spin on the inherent powers of the office of the president, but endless spin on how their positions have not really changed.
 

I don't think it's a coincidence that the period in which presidential power was curtailed was one where Congress was solidly and for a long time controlled by a different party than the President, and, more important, by a party that had a different view on foreign policy. Nixon tried to continue in the style of Johnson, but Johnson's party had switched its views. Naturally, Congress started taking back the authority it had been happy to delegate to Coolidge, Roosevelt, Eisenhower, Kennedy, and Johnson (Hoover and Truman omitted purposely).
 

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