How the Presidency Regained Its Balance, Indeed

JB

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.