John Yoo and (the Myth of) a Weakened Presidency

by Peter Spiro

John Yoo’s op-ed in the Sunday New York Times left me scratching my head on a number of points. I’m most mystified by his claim that the presidency of the last 30-35 years has been weakened as an institution (he’s got Dick Cheney to quote here, but that might not persuade everyone on the question). Were the Reagan, Bush I, and Clinton administrations weak, especially on the foreign policy front?

As Yoo himself highlights, Bush elder invaded Panama and Clinton bombed Kosovo without congressional authorization, to which you could add other episodes (including Grenada, the Tripoli bombing, and Haiti); and he’s clearly correct that the War Powers Resolution has been flouted. How does that support his characterization of “Congress’s bulked-up power”? The Congress of the 70’s and 80’s flailed in trying to rein in the White House, even in the wake of Vietnam.

Yoo misses the mark with respect to the courts here, as well. Far from being “increasingly assertive over the last three decades,” on war powers and national security the courts were nowhere to be seen, in the 20th-century tradition of judicial non-participation. It wasn’t for nothing that Harold Koh entitled a 1988 article, Why the President (Almost) Always Wins in Foreign Affairs. Only with the recent terrorism cases has the judiciary become more willing to interject itself, and then only in response to executive, not congressional, power-grabbing. (As for Yoo’s parenthetical attempt to spin Hamdan as “less a rebuke of the presidency than a sign of frustration with Congress’s failure to update our laws to deal with the terrorist menace,” is a response really required?)

The old balance balance was in some ways in the natural order of its historical context, and was accepted by all relevant constitutional actors. When presidents undertook relatively minor military operations such as Grenada and Panama, for example, there would be some catcalling about the War Powers Resolution, but no formal institutional prounouncements would issue from Congress, the courts would duck, and after the dust settled the exercise of presidential power was accepted as constitutionally legitimate. Bush himself was acting consistently with that balance when, for instance, he withdrew from the 1972 ABM treaty on his own authority.

So Bush inherited a presidency that was hardly enervated. Has he reinvigorated it by (to use the examples Yoo highlights) engaging in preemptive war, datamining communications, detaining terrorists without formal charges, and establishing military commissions? Hardly. The Administration has overreached where it had no need to (the old regime would effortlessly have persisted through the post-9/11 era), and the result has been devastating for the presidency. Yoo has it exactly backwards. Where the presidency had been strong, it is now weak.

In an essay in this month’s Atlantic, Jonathan Rauch observes that “history judges good presidents by what they do, bad ones by how long they take to undo.” The question here might be, how long will it take to undo the damage George W. Bush has done to the very institution whose authority he has claimed to protect.

(Over at VC, Orin Kerr asks on what basis Yoo suggests that “the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action”; Marty Lederman calls Yoo’s claim “ridiculous”, and this answer is as good as any other.)

Update: Orin has added this post with a flashback to the somewhat different views of executive power that Yoo held during the Clinton Administration.

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