John Yoo Worries About Presidential Presumption

Jacob Sullum | January 5, 2009

In a New York Times op-ed piece, John Bolton and John Yoo, former Bush administration officials not known for expressing concern about executive branch power grabs, urge Congress to demand that the president respect its constitutional authority...to reject international agreements that Bolton and Yoo do not like. While evading the Treaty Clause's requirement of approval by two-thirds of the Senate was OK in the case of Bretton Woods, GATT, and NAFTA, they say, it is clearly improper when dealing with climate change agreements, the Law of the Sea Treaty, and the International Criminal Court. Bolton and Yoo, who as a Justice Department attorney notoriously argued that the president can do pretty much whatever he wants in the name of national security, conclude by slyly suggesting that Republicans in the Senate help the incoming Democratic president "strike the proper balance between the legislative and executive branches that so many have called for in recent years."

Comments

cunnivore|1.5.09 @ 12:17PM|#

While it doesn't surprise me that Bolton and Yoo completely reversed their positions now that the shoe's on the other foot, what does surprise me is that they're advertising that fact. Do they seriously think ANYONE is going to take them seriously?

I mean, if I were a partisan hack, I would at least try to lay low while the other party's in power to avoid this kind of gotcha-begging.

thoreau|1.5.09 @ 12:20PM|#

Do they seriously think ANYONE is going to take them seriously?

A lot of major media outlets will probably give them column space or air time. Attention is everything. And they will do well on the lecture circuit.

|1.5.09 @ 12:21PM|#

The most stomach-churning part of this whole episode is that it suggests that Yoo's torture-mongering doesn't even come from a principled opinion about the President's power under the Constitution, but that that whole line of argument was just a pretext for partisanship.

|1.5.09 @ 12:22PM|#

pretty. freaking. ballsy. Of course, it's not like it's coming as a surprise to anyone that those two are partisan hacks.

|1.5.09 @ 12:22PM|#

It's only partisanship, unconstitutional, or terrorism when the other guy does it.

|1.5.09 @ 12:24PM|#

Joe, so the only thing worse than being a torturer is being an unprincipled, partisan torturer? Principled or not, woo is a war criminal in my book.

LGF Fan|1.5.09 @ 12:26PM|#

domoarrigato | January 5, 2009, 12:24pm | #
Joe, so the only thing worse than being a torturer is being an unprincipled, partisan torturer? Principled or not, woo is a war criminal in my book.

SOCIALIST!!

|1.5.09 @ 12:26PM|#

While evading the Treaty Clause's requirement of approval by two-thirds of the Senate was OK in the case of Bretton Woods, GATT, and NAFTA, they say[...]

I'm lost. Which of those had to do with Bolton, Woo, or Bush?

|1.5.09 @ 12:28PM|#

Pupal lawyers are a pretty low form of life (sorry Pro L), but it somehow still surprises me that Yoo's students don't bombard him with rotten fruit on a daily basis.

|1.5.09 @ 12:28PM|#

Do they seriously think ANYONE is going to take them seriously?

Considering how many pundits, politicians, and other assorted professional idiots get away with this shit (reversals, being utterly wrong, etc.) all the time, I think they are totally justified in thinking people will take them seriously.

thoreau|1.5.09 @ 12:28PM|#

If somebody really, truly believes that torture is necessary for safety, he's amoral and dangerous and needs to be kept away from the levers of power, but at least you can sort of understand how it came to be that way, how he got twisted. He's scared, and fear messes up the mind. Not a justification, just an explanation. Perhaps you can pity him, even as you keep him away from power.

But if his stance on torture depends on the party in power, then he doesn't even have fear as a possible explanation. There's no way to pity him as somebody who fell into the trap of fear.

|1.5.09 @ 12:30PM|#

domo,

Oh, he's a criminal either way.

But as a human being, it seems quite a bit worse to argue for torture because you 1) like torture and 2) want your party's leader to have unlimited power, than to argue that a strict adherence to the Constitution requires you to give the President that latitude.

|1.5.09 @ 12:32PM|#

No offense taken--I'm hardly pupal. I've been licensed to seize money for 13 years.

|1.5.09 @ 12:34PM|#

Happy New Year, Reasonoids!

I warned these dumbass Bush acolytes that they were going to be unhappy with the precedents they set while the retarded son was POTUS. Now they expect to convince an overwhelmingly Democratic congress to take the power away from the golden boy president (after the executive semen is wiped from congress's collective chin, of course)?

Good luck with that, you shortsighted retards.

|1.5.09 @ 12:35PM|#

What is especially disgusting about guys like Yoo (and his boss) is that they apparently want to act without consequences. I could dredge up some tiny amount of respect for the man who says, "I was so completely conviced that this guy knew where the boogeyman was hiding, that I ripped out his fingernails one by one. I did that because I thought it was right, and I will accept any consequences; lock me up, execute me, let the judgement of society and the law prevail."

|1.5.09 @ 12:37PM|#

J sub D,

Indeed. Standing on the shoulders of myopic, syphilitic midgets.

|1.5.09 @ 12:39PM|#

. . .are more myopic, syphilitic midgets.

|1.5.09 @ 12:57PM|#

Don't forget the Flawed, sleazy, vindictive hypocrites.

*tips hat to Thoreau*

Kolohe|1.5.09 @ 12:58PM|#

I never knew until reading the above that Bretton Woods, GATT, and NAFTA were not approved by 2/3 of the senate. (NAFTA was approved by a majority vote in both houses of congress - a vote that was part of the structure of previous legislation that granted the President fast track authority. I can't find similar information on the legislative history of the other two agreements)

Nonetheless, the question was asked at the time is "are trade agreements 'treaties'?" (asked to Lawrence Tribe during committee hearings on the Uruguay round) Although the answer would seem to be trivially "yes", I can see how they worked around it. Congress can authorize, through its normal enumerated powers, whatever tariffs it feels like. So, presumably, it can delegate part of this power, or at least tell the president, 'get what deal you can get (to the countries we name), and then if we agree, will pass a bill of revenue (starting in the house, like final passage of NAFTA was) that makes our tax structure conform with that agreement. While it may seem suspect from a formalism standpoint, the fact that Congress is definitely involved makes it stink far less as an executive power grab. Yes, the fact the standard is lowered from 2/3 in the senate to simple majority in both houses is somewhat troubling as a precendent, but, as I said, as long as they stick with enumerated powers, the fact that it's part of a treaty is a bit superfluous - i.e. the US Government could just do the same thing unilaterally.

Last, although I have no doubt that both Yoo and Bolton will rediscover (or already have) that there is an Article 1 to the constitution (as Orin Kerr's rules state they will), it is a bit of a strawman in this case, because I pretty sure both these men were for GATT/WTO and NAFTA as it is a pretty standard Republican position outside the Paul and Buchanan wings of the party.

gmatts|1.5.09 @ 1:05PM|#

Good to see Bolton take some time away from advocating that the US must bomb Iran. Without Congressional approval, of course.

|1.5.09 @ 1:06PM|#

P Brooks,

That's exactly what I've been arguing for years. If these people were true patriots (fighting for the ideals the founders laid out in the constitution) they would do what they thought needed to be done then respect the rule of law and take the consequences. That's what a hero is.

Instead these authority fellators want to change the laws (thus ideals) the torture was supposed to protect.

Nigel Watt|1.5.09 @ 1:08PM|#

On this line of thought, can y'all un-annex Texas so we can go on our way? The annexation was approved by a joint resolution.

Lester Hunt |1.5.09 @ 1:18PM|#

Ah, the chickens' homecoming. At least I can enjoy it as comedy.

mark|1.5.09 @ 1:23PM|#

Frak John Woo and John Bolton. I understand hypocritical people are a way of life, but the sheer cynicism of their remarks makes me understand how much the Republican party is utterly and completely worthless.

I also understand that chances are they're doing this in order to stir the pot, but frankly I think they're worthless, should be brought up on war crimes or at the very least ridiculed for stupidity anytime and every-time they speak.

They have every right to speak and say their piece, but I have every right to ignore any business that bothers to post their tripe in their pages, or bothers to waste airtime on people who have no sense of ethics, no sense of decency and no sense of honor.

Frak both of them.

shecky|1.5.09 @ 1:36PM|#

Shorter Mr. Yoo:

Please, Mr. Obama, don't crush my son's testicles.

|1.5.09 @ 2:30PM|#

To paraphrase Mencken, "The unitary executive is the theory that the Republicans know what they want, and deserve to get it good and hard. "

gmatts|1.5.09 @ 2:35PM|#

"On this line of thought, can y'all un-annex Texas so we can go on our way?"

Even if this were to happen now, it would, regrettably, be 8 years too late.

|1.5.09 @ 2:49PM|#

How much to take Oklahoma with you?

|1.5.09 @ 4:07PM|#

Let us have New Mexico, too, and we'll call it even.

cunnivore|1.5.09 @ 4:12PM|#

The entire Big 12 can go to Mexico as far as I'm concerned.

Andy|1.5.09 @ 4:29PM|#

Frak John Woo and John Bolton

That's John *Yoo.* John Woo directed such films as Mission Impossible 2 & Hard Boiled. John Yoo is a hard ass who made it his mission to destroy the Constitution.

D.R.M.|1.5.09 @ 5:52PM|#

The early, Founder-era Congress did distinguish between trade treaties that touched on tariffs and other sorts of treaties. Trade treaties that touched on tariffs have been held by Congress to require House approval, given the House's special Constitutional authority in the matter of revenue bills. There is accordingly over two centuries of precedent in distinguishing trade treaties from other treaties.

So the argument works out that for the class of treaties that require House approval, it is reasonable to only require a simple majority of the Senate, while for other treaties the 2/3rds requirement of the Constitution is retained.

That is procedurally sensible; why should tariff treaties have a higher burden than either tariff laws and treaties?

It also is consistent with the general outlines of the Senate's role. As quasi-sovereign entities (who, for example, controlled their own militias), the states were given maximal influence over matters directly affecting American sovereignty (through their appointed Senators), while national taxation was deliberately isolated from the Senate by putting it in the purview of the House.

Then, finally, this system, both logical on its own merits and flowing from the general scheme of powers in the Constitution (if not explicitly called out in the text), has been firmly established by long precedent and convention.

It is not, of course, a direct imperative of the written Constitution to separate the classes this way, but it certainly looks to be a well-established distinction in the customary Constitution.

Joel|1.5.09 @ 6:19PM|#

That's John *Yoo.* John Woo directed such films as Mission Impossible 2 & Hard Boiled. John Yoo is a hard ass who made it his mission to destroy the Constitution.

Hm. Which one has done the most harm?

gmatts|1.6.09 @ 12:12AM|#

"Let us have New Mexico, too, and we'll call it even."

You mean you'll take it? For nothing?

I mean, suuuurrrrre. As much as we really need New Mexico, you can have it. First Texas gone? And now New Mexico? It'll be tough getting by without you guys, but fine. It's yours. You drive a hard bargain.

mark|1.6.09 @ 1:23PM|#

Wow, Frak me for screwing his name up! LOL
ah well. I should know better, always post temperately, not in haste.

And Face Off was a fun movie.

|1.7.09 @ 8:41AM|#

John WYoo thinks that a wartime president has the constitutional authority to take his face... off!