I Am the Law

John Yoo's troubling defense of Andrew Jackson

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.