John Yoo Worries Again About the Abuse of Executive Power

In a National Review Online essay published yesterday (and noted by Mike Riggs this morning), Berkeley law professor John Yoo criticizes President Obama's "recess" appointment of Richard Cordray to head the Consumer Financial Protection Bureau. This is not the first time that Yoo, who as a Justice Department attorney during the Bush administration became notorious for pushing executive power to alarming extremes, has urged President Obama to respect constitutional limits on his authority. In January 2009, before Obama had even taken office, Yoo warned him against the temptation to sneak "a new Kyoto climate accord" or other international treaties through Congress without the requisite two-thirds vote by the Senate. Lest you think that Yoo worries about presidential presumption only when the president is a Democrat, he opens his NRO piece by conceding that he is "often" a "zealous advocate of executive power...when it comes to national security issues." The implication is that the president's powers ebb when he is not dealing with such issues. Yet given how elastic the concept has become, it would not be hard for Obama to offer a national security rationale for efforts to alleviate global warming or protect consumers of financial services from fraud. How can the nation be truly secure, after all, if the world is in turmoil because of catatstrophic climate change or if Americans stop borrowing money because they're afraid of being cheated? If overeating is a national security issue, pretty much anything can be. Still, Yoo makes some good points:

The Senate is not officially in adjournment (they have held "pro forma" meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional "recess." Rather, Obama is claiming the right to decide whether a session of Congress is in fact a "real" one based, I suppose, on whether he sees any business going on.

This, in my view, is not up to the president, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers. The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.

Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).

He kinda ruins it with that gratuitous swipe at the end, however. Such blatant partisanship makes it difficult to persuade people by pointing out that "even John Yoo thinks the president has gone too far this time." To be fair (if that's the right word), Yoo did have the courage of his convictions in defending Obama's authority to go to war in Libya without congressional authorization, saying Obama reached "the right result" based on "the wrong reasons"—i.e., he should simply have said "because I'm president, that's why" instead of embarrassing himself with silly interpretations of the War Powers Act. 

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  • ||

    Yoo'll be sorry!

  • ||

    The Senate is not officially in adjournment (they have held "pro forma" meetings, where little to no business occurs, to prevent Obama from making exactly such appointments).

    Fun fact: The Senate passed the payroll tax cut last month during one of these pro forma sessions.

    Since the Senate can't conduct business when it is in recess, and it is in recess when it is only there pro forma, I guess that payroll tax bill never got passed.

    Oopsie!

  • L_E_S||

    False, the 'pro forma meetings' is a reference to there not being a quorum. And anyway, you're thinking of the House (they passed the senate version of the pay-roll tax extension; they're starving the beast!)

    Right now 95% of senators are in their home states. In no REAL or TRADITIONAL sense are they in session.

    It's one thing to support this new version of filibustering; it's another to act like it's some sort of Obama plot or logical-fallacy.

  • ||

    Disclaimer: I thought the morning links said "John Woo". Makes a lot more sense now.

  • ||

    Who, the rug-pisser?

  • ||

    STFU. Also, Yoo've been detained, bitch.

  • CalebT||

    John Yoo, Republican?

    RACE TRAITOR!

  • ||

    HAIL OBAMA! HAIL DEMOKRAT! SIEG HEIL!

  • CalebT||

    Will it be like that TOS episode, "The Enemy Within"? Will Obama's black and white halves separate into two distinct beings?

    My bet is on the white side being the total pussy.

  • o3||

    moar peoples' republic of berkeley academic activism.

  • GILMORE||

    Yoo, who as a Justice Department attorney during the Bush administration became notorious for pushing executive power to alarming extremes, has urged President Obama to respect constitutional limits on his authority.

    Executive Authority, and dismantling of the constitution = ITS OK WHEN OUR TEAM DOES IT! NOT YOOOOOOOOOO

  • bubba||

    It seems to me that John Yoo is being consistent. The President has authority over the military, not over the congress. the War Powers squabble is actually consistent with that. I think he argued that Obama has the power to make war, but he does not have the power to misinterpret the law.

  • Mensan||

    "... but he does not have the power to misinterpret the law.

    Yeah, that's the Justice Department's job.

  • Paul||

    Yoo, who as a Justice Department attorney during the Bush administration became notorious for pushing executive power to alarming extremes, has urged President Obama to respect constitutional limits on his authority.

    And this is why we can't get anywhere in this damned country.

    It's just a bunch of opportunistic career hacks trying to hamstring eachother with the same tools and weapons.

    You get a guy in one administration who's trying to expand executive authority like it's going out of style, then he goes into the 'private sector' and becomes part of the commentariat, bitching about executive power.

    In a few more years, Eric Holder will go to work for some think tank and be doing the exact same thing.

  • CalebT||

    In Newt Gingrich and Rick Santorum's defense, when they got kicked out of office, they continued advocating for the same shitty authoritarianism they advocated while in office.

    Santorum/Gingrich 2012: "Consistency!"

  • Amakudari||

    Santorum does have a frothy consistency.

    My sincere apologies.

  • ||

    In a few more years, Eric Holder will go to work for some think tank and be doing the exact same thing.

    They have think-tanks in federal prison?

  • Binky||

    Yoo know they do.

  • Gojira||

    YELLOW PERIL!!!

  • Peril Streep||

    Opium and Change!

  • MJ||

    Why is taking a minor Bush adminstration bureaucrat to task for an apparent inconsistancy in thought more importtant than the President and the Senate Majority Leader completely turning around whether a "pro forma" session can block a recess appointment?

    Aren't the hyprocrisies of people who currently hold tremendously powerful offices a little more important right now?

  • Skip||

    Because taking minor Bush administration bureaucrats to task is the only thing the Obama worshippers like.

  • ||

    John Yoo speaking out against the expansion of executive power is like a pimp speaking out against extra-marital sex.

  • BB Onegin||

    According to Yoo, "It is up to the Senate to decide when it is in session or not."

    Actually, it is not. According to Article I, Section 5 of the Constitution, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days."

    The Senate has not recessed, because the House has not approved a recess.

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