I Am the Law

John Yoo's troubling defense of Andrew Jackson

Damon W. Root | August 12, 2008

Prior to September 11, 2001, few Americans had any reason to know the name John Yoo. A law professor and former clerk for Supreme Court Justice Clarence Thomas, Yoo was just two months into his job as assistant attorney general in the Justice Department's Office of Legal Counsel when the terrorist attacks occurred. In the years since, however, his handiwork has become impossible to ignore.

Most notably, Yoo drafted the infamous 2002 "torture memo," which, among other things, maintained that the president could not be constitutionally prohibited from ordering torture during wartime, no matter what existing American law had to say about it. More generally, Yoo emerged as a highly effective advocate of the so-called unitary executive, the theory that by vesting "the executive power" in the presidency, the Constitution equipped the commander in chief with the "inherent" authority to go to war without congressional approval, nullify treaties, ignore the courts, and much more.

Since returning to academia in 2003, Yoo has remained a vocal champion of untrammeled executive authority. His latest effort, a Charleston Law Review article titled "Andrew Jackson and Presidential Power," is particularly outspoken. Not only does Yoo offer a flattering profile of America's domineering and controversial seventh president, he recasts him as a none-too-subtle precursor of Yoo's embattled former boss, George W. Bush.

As Yoo tells it, Jackson "reinvigorated the Presidency," transforming it into "the direct representation of the American people." As such, the president was uniquely empowered to see that "the will of the people should prevail, regardless of existing governmental and social arrangements."

To put it another way, Jackson saw himself as above the law. Which perhaps explains why Yoo is so interested in claiming him. As the legal scholar David Cole has noted, "Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same—the president can do whatever the president wants."

In Yoo's mind, Jackson's two greatest political victories—his 1832 fight against the Second Bank of the United States and his 1832-33 campaign against South Carolina's threatened secession over the "tariff of abominations"—apparently justify this very idea. As Yoo writes, both accomplishments stemmed from Jackson's "vigorous exercise of his executive powers."

It's hard to disagree with that last point. Jackson's veto of the bill reauthorizing the national bank, for instance, featured a message to Congress that broke with all previous tradition, spelling out for the first time a sitting president's legislative preferences. Opponent Henry Clay described this attempt to influence Congress as "hardly reconcilable with the genius of representative government." Similarly, Jackson responded to South Carolina's talk of nullifying federal law with the threat of overwhelming violence, declaring, "On your unhappy State will inevitably fall all the evils of the conflict you force upon the Government of your country."

Yet aside from being driven by Old Hickory's volatile personality, his two positions share nothing in common. On the bank issue, Jackson was something of a libertarian, arguing that the institution granted monopoly powers to politically connected elites. Yet when it came to South Carolina's talk of secession, Jackson was a ferocious nationalist, threatening to unleash steel and fire to preserve the union.

His politics, in other words, were all over the place, held together only by his considerable belief in his own righteousness. But why would anyone accept that as a reason to trust a single, fallible human being with unilateral war making authority?

Yoo offers an unpersuasive and unsatisfying account of Jackson's most notorious achievement as president: his central role in Georgia's expulsion of the Cherokee Indians, the shameful episode that culminated in the 1838 Trail of Tears. While acknowledging Jackson's "great responsibility for the tragedy," Yoo adds, "Under the standards of his day, Jackson's views can be said to represent the views of the voting public."

Yet as historian Amy Sturgis has argued, Jackson's "policy of compulsory removal of American Indians—besides enacting a national plan for what was essentially ethnic cleansing, coupled with the forcible redistribution of property from its rightful owners to those who had not earned it—was wildly at odds with the checks and balances inherent in the federal system." After the Supreme Court held Georgia's anti-Cherokee laws to be unconstitutional in Worcester v. Georgia (1832), Jackson simply refused to enforce the decision (as did Georgia), declaring that the Supreme Court was entitled only to "such influence as the force of their reasoning may deserve."

Imagine if President Bush had responded that way to the Court's recent decision in Boumediene v. Bush (2008), which recognized habeas corpus rights for enemy combatants held at Guantanamo Bay. Under Yoo's interpretation of both law and history, Bush would have been perfectly justified in doing so.

Thankfully, this brand of Jacksonian conservatism hasn't completely taken hold. But there's nothing comforting in the fact that Yoo's arguments still hold sway in the highest reaches of power. If Old Hickory teaches us anything, it's to beware of any leader claiming to be above the law.

Damon W. Root is an associate editor of reason.

Comments

Andrew Jackson|8.12.08 @ 12:13PM|#

Damon Root has written his editorial. Now, let him enforce it.

|8.12.08 @ 12:26PM|#

Hey Andrew Jackson-

Don't you know that The Cherokee Nation Will Return, Will Return, Will Returrrrrrrrrrrrr.....n, WILL RETURN.

|8.12.08 @ 12:31PM|#

Is there a citation to some of Yoo's work (or any other scholar's) that links the unitary executive theory of presidential power with the breadth of those powers?

It would be nice to see where that idea came from, since the question of in whom a power is vested is separate from the question of that power's breadth. Unitary executive theory speaks to the former but not the latter.

Andrew Jackson|8.12.08 @ 12:36PM|#

libertymike:

Sir, any more of that talk and I will beat you with my cane!

gmatts|8.12.08 @ 12:40PM|#

Does the Office of Legal Counsel exist in some black hole that is void of all consequences for its decisions and advice? Because Yoo has written some things that, while being employed by the gov't, give the justification for things that seem to be blatantly illegal.
I guess all you need as President to break the law is to have someone in the OLC write memos that provide dubious justification for breaking laws, all the while the writer of these memos is in no way held accountable for the positions he lays out.

Seward|8.12.08 @ 12:47PM|#

On the bank issue, Jackson was something of a libertarian, arguing that the institution granted monopoly powers to politically connected elites.

I may be mistaken, but if I remember what I've read correctly taking money out of the B.U.S. (which is what they eventually did) wasn't the Jackson administration favoring those politically connected to it?

Seward|8.12.08 @ 12:48PM|#

I mean, by taking it out and putting money in some other banks.

KipEsquire|8.12.08 @ 12:54PM|#

Just this morning another scholar whom Yoo cites in his article responded to it.

Oh, and I have some unkind words for Yoo this morning.

Alan Vanneman|8.12.08 @ 1:11PM|#

It's "interesting" (i.e., disgusting) that Yoo, not merely a lawyer but a law professor, effectively argues for a plebiscitary* dictatorship, rather than a government of laws. Andrew Jackson did what he thought was right. He was reelected. So he was right! End of story!

|8.12.08 @ 1:25PM|#

Apparently, the People are so incredibly sovereign that they do not have the authority to set up a system of governance that makes the chief executive subordinate to the laws passed by the legislature.

The People have all sorts of sovereign powers, just not that one.

|8.12.08 @ 1:37PM|#

Apparently, the People are so incredibly sovereign that they do not have the authority to set up a system of governance that makes the chief executive subordinate to the laws passed by the legislature.

Sure they could.

All you have to do to take the "unitary" out of "executive" is amend the Constitution (is how I believe the argument would go; personally, I don't have any detectable opinions on the unitary executive doctrine).

|8.12.08 @ 2:11PM|#

John Yoo? The torture proponent? Why would I read anything written by such an evil asshole?

Besides, Jackson was one of our worst presidents. Definitely a bottom ten member.

|8.12.08 @ 2:15PM|#

Perhaps, RC, you don't have an opinion about the unitary executive because you think it has something to do with the president not having to follow the laws passed by Congress. Which it doesn't.

|8.12.08 @ 2:16PM|#

Funny how we managed to go 125 years without needing to amend to Constitution to require the president to faithfully obey the laws passed by Congress.

|8.12.08 @ 2:26PM|#

Or 225, even.

|8.12.08 @ 2:37PM|#

Although I'm typing this in Old Hickory, TN, yes, Andrew Jackson was a typical tyrant.

Ruthless
There was a lot of alliteration in there, wasn't there?

|8.12.08 @ 2:45PM|#

It's an embarassment to me that the Democratic Party still honors Jackson, our genocidiest president. The Minnesota DFL Party dropped him from the Jefferson-Jackson Dinner name, and the rest of the party should follow suit.

Really, terrirble, despicable presidient. Worse than Bush.

Don't ever say I never criticize the Democrats.

|8.12.08 @ 2:54PM|#

Perhaps, RC, you don't have an opinion about the unitary executive because you think it has something to do with the president not having to follow the laws passed by Congress. Which it doesn't.

Actually, nobody has to follow laws passed by Congress, until they are signed by the President.

And, arguably, at least, nobody has to obey unconstitutional laws, even when signed by the President. And that includes the President.

The unitary executive controversy gets to what control the legislative branch can exert over the "internal" operations of the executive branch, specifically, as I recall, hiring and firing. Under the, you know, Constitution, what with its enumerated powers, divided government, and all that.

So, (assuming unitary executive is right), the President doesn't have to bend to obey (unconstitutional) laws that impinge on his (Constitutional) authority to run the executive branch.

Unless the Peepul amend the Constitution, of course.

|8.12.08 @ 3:15PM|#

"Internal" being the key word, RC. The Unitary Executive theory is about whether the President has to, for example, follow Congress's criteria for hiring a FEMA director as specified in the DHS authorization bill, or whether he and the AG have to follow the federal Civil Service laws' requirements about hiring career DOJ attornies.

It has nothing to do with Yoo's implausible statements about whether the President has to obey laws about torture, or wiretapping, or other external actions.

|8.12.08 @ 3:28PM|#

None of this discussion of the unitary theory of executive power is accurate, including Damon Root's comment (though joe's 3:15 remark comes close).

This has all been discussed ad nauseum at the Volokh Conspiracy, but basically the theory has to do with the allocation of power WITHIN the executive branch, not between it and other branches. Anyone who says otherwise (possibly including John Yoo) is using one term to refer to something different. Calling a tail a leg doesn't mean you can stand on it.

The unitary theory of executive power has to do with the President's authority to tell executive-branch employees how to carry out their duties; it views the President as the repository of all executive power subject to his delegation. Congress's grant of power to an executive agency would therefore grant it through the President, who is empowered to determine how that grant of power is exercised.

This has nothing to do with overruling or ignoring either the laws or the courts. Those branches' powers are not limited by this theory.

Mad Max|8.12.08 @ 3:29PM|#

I) "Don't ever say I never criticize the Democrats."

But the Whigs would have been worse! You, you . . . Whig!

II) The Founders set up a "unitary executive," meaning we'd have one President instead of (say) three or five Presidents sharing the power. That doesn't speak to the question of what the Presidential power actually is.

III) Congress has the power to make rules and regulations to govern the land and naval forces, and to define and punish crimes against the law of nations. That's what they did with their ban on torture. Since Congress acted constitutionally, there's no occasion to decide the hypothetical question of whether the President has to obey unconstitutional laws.

IV) The Jacksonian precedents Yoo cites don't help President Bush. (a) Jackson vetoed bills he believed to be unconstitutional or injurious to the Republic - exercising a power that is expressly granted to the President. Would that GW Bush did this more often! (b) Jackson threatened to suppress a nullification attempt by South Carolina. The constitutional question was state power v. federal power, not Congress v. the President. Congress had passed a law allowing the President to call out the militia to suppress insurrections when the ordinary courts couldn't cope with the insurgents. The only question was whether a state practicing nullification could be equated with an insurgent movement. It wasn't about the Pres defying Congress. (c) Contrary to myth, Jackson didn't disobey the US Supreme Court in Worcester v. Georgia. He had no opportunity to do so - assuming he wanted to. The US Supremes overturned a criminal conviction in a Georgia court and ordered that court to let the guy free. The Supremes didn't call on Presidential assistance against the Ga court - eventually, the Ga governor granted a pardon and the issue went away (as did the Cherokees, whose lawsuit the Supremes refused to hear).

V) The idea of John Yoo being the public face of "conservative" legal ideas is disgusting.

SIV|8.12.08 @ 4:46PM|#

It's an embarassment to me that the Democratic Party still honors Jackson, our genocidiest president

In terms of percentage of population FDR was much more effective at "ethnic cleansing" with his Jap internment.

|8.12.08 @ 6:09PM|#

SIV,

Some would consider dead people vs. live people to be a meaningful distinction.

|8.12.08 @ 7:52PM|#

""The unitary theory of executive power has to do with the President's authority to tell executive-branch employees how to carry out their duties; it views the President as the repository of all executive power subject to his delegation."""

Yoo probably thinks an Executive Order is the way a President creates law.

MJ|8.12.08 @ 10:35PM|#

"It's an embarassment to me that the Democratic Party still honors Jackson, our genocidiest president."

It's a bit difficult to disown your party's founder. Genocide, slavery, what a wonderful history your party has!

|8.13.08 @ 12:53PM|#

Nothing in either McCain's or Obama's run shows
that they will undo Bush's damage. America has gone over to a caudillo mentality, and it's going to take some time to undo it. If the libertarians are going to do anything about it, it will have to be from the other end, as far from D.C. as possible. Congress is a zombie, and the courts are overrun with Bush's pimps. It starts with the next flight out of D.C.

|8.13.08 @ 3:17PM|#

Beware of anyone who uses Andrew Jackson or Teddy Roosevelt as a positive example of the presidency.

|8.13.08 @ 8:54PM|#

Crisco,
Could you see your way clear to add Lincoln?

wicks cherrycoke|8.13.08 @ 9:36PM|#

Let's see if I understand this: a nationalistic leader, claiming to draw his authority from the majority of the citizenry and to be acting in their name, uses his personal charisma to override the legal and institutional contraints on his power, to subordinate law to his person, to cleanse and/or go to war with those considered outsiders to the nation, and uses military force to impose policy.

Hey Benito, ever hear of such a notion?

|8.15.08 @ 10:30AM|#

Screw Jackson, screw Woo, screw Root too. Cherokees saved Jackson in his early career as a soldier in battle. WOO, who? Oh I got it, is it John Woo - Thomas? Not sure. Must be PTSS that my great-great grandmother and her children suffered from the "Trail of Tears" (The Trail Where They Died - The Trail of Blood) authored and executed by Jackson. Still wondering!