For those who follow the torture lawyers — those attorneys who made spacious arguments that the President could order torture because, you know, he’s the President — John Yoo stands out. Yoo takes every opportunity to spout nonsense about the need to reassert executive authority. After all, the power of the Presidency has been horribly weakened over the last 35 years, he argues. [See his New York Times Sunday OpEd How the Presidency Regained Its Balance.]
But the president has broader goals than even fighting terrorism — he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the “erosion of the powers and the ability of the president of the United States to do his job” and noted that “we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.”
Turns out he’s made up the these argument only since his client, the Republican Party, has obtained control of the White House. Orin Kerr has found that, as recently as 2000, he attacked Bill Clinton for assuming unconstitutional executive powers:
“First, I think, in order to achieve their foreign policy goals, the Clinton Adminisitration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration. The second thing is that the Clinton Administration has displayed a fundmental disrespect for the rule of law. Not in the sense that they don’t make legal arguments to defend their positions, but the legal arguments are so outragous, they’re so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is. And the the third thing is a matter of consistency. I think one of the things the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton Administration, as I’ll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn’t say anything at all, and goes ahead and does what it intends to do anyway.” [From: http://volokh.com/archives/archive_2006_09_17-2006_09_23.shtml#1158560810]
President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law. [From: http://volokh.com/archives/archive_2006_09_17-2006_09_23.shtml#1158547048]
I’ve recently concluded, as I listened to Bush argue for “clarifying” the Geneva Convention’s Common Article III by, in effect, making “shocks the conscience” the key to interpretation, that the essence of modern Republicanism is situational ethics. Yoo again demonstrates the truth of my conclusion.
September 18th, 2006