Calling Constitutional Scholars Yoo and You.
Professor Yoo has been an advocate for executive freedom of action, most especially in extraordinary circumstances such as wartime. He makes a compelling case.
However and alas, President Obama has taken executive freedom to a new and brazen level. As Krauthammer notes in his recent Government by Regulation. Shhh (though Rob beat him to the punch), Obama has foisted upon us, through simple administrative fiat, Medicare end-of-life counseling, the so-called "death panels."
A couple questions: Given that eliminating this feature of Obamacare was essential to its passage, have knock-down, drag-it-out legislative battles such as last year's Obamacare sausage-making become, in effect, democratic "skits," in which lawmakers merely pretend to carry out their Constitutional function? And is this not a compelling case against a strong executive?
Troy Senik thankfully notes one clever, tactical method for Republicans to undermine the administrative state, but it might be time for more strategic, Constitutional push-back against the executive, lest we drift toward a nation of men, not laws. Right? And if so, how?
What say you (Yoo)?
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Jun '10
Re: Calling Constitutional Scholars Yoo and You.
Ironic, isn't it that left has been the most vociferous about presidential power? In his classic 1973 book The Imperial Presidency, Arthur Schlesinger Jr., a very left-wing historian, was arguing for the primacy of the Congress in the constitutional scheme and decrying the accretion of power in the executive. But, of course, that was in the aftermath of Nixon and Watergate. I don't think Professor Schlesinger had any problem with presidential overreach when his beloved JFK was president. Only true conservatives want to see limited powers in government, regardless of which faction has the reins at any given time. The left is alway situational in this regard, conservatives have to avoid that temptation.
Nov '10
Re: Calling Constitutional Scholars Yoo and You.
It tends to benefit Democrats more than conservatives to have a powerful executive because Democrat presidents will use all of that power and push the envelope besides. Republican presidents have a proclivity for not using the power they have because they get hammered by the media and they think that matters for some reason. Conservatives would benefit by having a less powerful executive since they can’t get a Republican president that will use it anyway.
Of course, it is a pipe dream to believe that cutting back the power of the executive is going to stop Democrat presidents. They will just do as they please anyway and the media will applaud.
Troy Senik has agreat idea. Republicans are so bad at telling their story they need all the help they can get. Sending multiple disapproval resolutions to Obama to veto would at least get publicity and let the public know what is going on, since Republicans will otherwise never tell them.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Contemporary leftists tend to oppose the expansion of executive power when it comes to foreign policy but advocate expansion when applied to domestic affairs. They believe that the government must regulate, prohibit, and subsidize in order to establish the ideal state of affairs at home.
Jul '10
Re: Calling Constitutional Scholars Yoo and You.
Did the Founders even foresee the kind of regulatory power that executive agencies now arrogate to themselves?
Writing regulations is what Congress should do when they pass bills. To allow unelected bureaucrats to write regulations rather than just enforce laws made by the legislative branch strikes me as a violation of the separation of powers.
Re: Calling Constitutional Scholars Yoo and You.
There is an important distinction between foreign affairs and domestic affairs. Thinkers from Locke and Machiavelli, if not before, understood that a good constitution ought to give an executive a wide berth where national security is concerned, because in foreign affairs, the future is quite unpredictable and the risks of national harm are high. Foreign threats are unlikely to be fully anticipated by legislatures and the existing laws. That's why, in my view, the Framers of our Constitution created a President whose primary mission was to protect the country from foreign threat and this is where they expected the executive's main powers to rest. National security threats demand the speed, dispatch, and energy that only the executive can bring to bear.
Domestic affairs are the opposite. The challenges are not sudden and unanticipated (except for, perhaps, natural disasters). Legislatures can and should address domestic problems with careful investigation, deliberation, and eventually new laws. Unlike foreign affairs, domestic affairs lack the need for immediate speed and force of response. The costs of an error in domestic affairs generally outweigh the benefits of acting quickly -- quite the reverse from national security matters. So here, in my view, the Framers designed the Constitution to give the President a check on Congress through the veto -- to restrain the legislature, not spur it to radical action. In the case of Obamacare then, administrative agencies are given some discretion in the legislation itself, as is the case with many areas of regulation. But that is not a mandate to the executive to promulgate regulations in areas of health care that were left untouched by Congress or to enact new regulations against the clear wishes of Congress. In these areas, the President is supposed to limit the federal government's intrusions into private civil society, not press them farther.
Edited on Jan 3, 2011 at 12:20pmOct '10
Re: Calling Constitutional Scholars Yoo and You.
Am I wrong, or do I remember a time when the eyeball to eyeball showdown between the congress's control of funding and the executives power of veto lasted sometimes for months over a matter of substance? We are saddled with the reality of a statist media, and a public complacent in the go along to get along method. Only men of statesmanlike courage can break this stranglehold. Winston Churchill sat on the back bench from the time of the Versailles treaty until Hitler began the bombing of London, a period of over 20 years, seldom gaining ground and never giving an inch.
Confrontation is the only way any of this can be done. We've had 60 years of collegiality. The powerful keep gaining power, and the timid keep surrendering it. And the rest of us non-governmental types endure the frustration of watching our liberty dissolve into serfdom.
May '10
Re: Calling Constitutional Scholars Yoo and You.
I wonder that, too. Tocqueville surely saw it, as Michael Ledeen points out in Tocqueville on American Character, a relevant excerpt of which is here (and from which I snatched the "democratic skits" line). Please check it out; it's almost scary how prophetic the guy was.
Thanks, and thank goodness. But what can be done about it, aside from shining a shaming light on the practice, as Troy suggests? Acting "against the clear wishes of Congress" would seem to merit a Constitutional challenge, no? Or are we stuck with this unhappy by-product of a powerful executive, which is so necessary in other contexts?
May '10
Re: Calling Constitutional Scholars Yoo and You.
Professor Yoo muses on what a a "good constitution ought" to do. I prefer to ask what our actual constitution permits. It gives Congress the power to declare war. That is to say, even in the realm of national security and foreign threats, they saw fit to divide power among the three branches of government.
It is folly to imagine that the executive can be invested with the sweeping powers Professor Yoo would give it in matters of national security, and that presidential power will stay confined there, rather than bleeding into the domestic realm. Already we see national security being invoked to spy on the phone calls of Americans, to put them through naked body scans, and to grope them at the airport. Why does Professor Yoo imagine that we can draw a neat line between national security and domestic matters? You'd think a world leader never used his power over the military to seize domestic control before.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Well, of course, Conor, a president who is eager to arrogate power for himself (Obama/Chavez) will try hard and play games to do so. Prof. Yoo is explaining why he can't- if the legislature is doing its job- because there are veto powers, and enough time to implement them. That is often not the case in foreign affairs.
And, of course, the president(s) you are again railing against worked with the Congress- consulting and getting supporting legislation. Yours and Sullivan's objections regard differing interpretations of the legislative authorities and cases where politicians vote and change their minds later for political reasons, then try to get courts to do their jobs, as with military tribunals and intel surveillance.
But this whole death panels issue is one that is quite misunderstood. 1) Every state has an end-of-life counseling law- in my state, you are always lectured on executing a "health care directive" to set up end-of-life plans. All this does is federalize what is already in place. 2) No one is refused treatment- get out the checkbook, and you will be treated. The argument is over whether Medicare/ObamaCare will pay for the treatment.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Conor Friedersdorf:
It is folly to imagine that the executive can be invested with the sweeping powers Professor Yoo would give it in matters of national security, and that presidential power will stay confined there, rather than bleeding into the domestic realm.
In Professor Yoo's defense, it is not he who would give it; it's the Founders who have given it, with their intentionally vague language re executive power in foreign affairs and war, and with various SCOTUS decisions confirming same, as his book lays out.
Yes, as you say, the "bleeding into the domestic realm" is predictable. But the question is (I think): Would the Court grant such a power grab as Constitutional, since no crisis--and hence no corresponding (and arguable) necessity--exists?
Dec '10
Re: Calling Constitutional Scholars Yoo and You.
Professor Yoo: "But that is not a mandate to the executive to promulgate regulations in areas of health care that were left untouched by Congress or to enact new regulations against the clear wishes of Congress."
However the Obama administration freely enacts new regulations against the clear wishes of Congress. Clear, as in written in detail into law. The Clean Air Act specifically regulates emissions of those substances considered dangerous to 250 tons, per year. The EPA made up their own number when promulgating the limitations for regulating carbon dioxide emissions. So they just made up a new limit of 25,000 tons and Admiistrator Jackson had this to say:
"The EPA admits that it is "departing from the literal application of statutory provisions." But it says the courts will accept its revision because literal application will produce results that are "so illogical or contrary to sensible policy as to be beyond anything that Congress could reasonably have intended." "
(Source:http://online.wsj.com/article/SB10001424052748704471504574447090218534138.html )
Wow.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Duane Oyen:
[...]But this whole death panels issue is one that is quite misunderstood. 1) Every state has an end-of-life counseling law- in my state, you are always lectured on executing a "health care directive" to set up end-of-life plans. All this does is federalize what is already in place. 2) No one is refused treatment- get out the checkbook, and you will be treated. The argument is over whether Medicare/ObamaCare will pay for the treatment. · Jan 3 at 3:02pm
Hey, buster, let's not get side-tracked!
Whether or not it was legitimately a nasty proposal is irrelevant. It was still ostentatiously withdrawn to smooth passage, and therefore it must not be returned by fiat if the legislative process is to retain meaning.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Can you give examples of circumstances where the legislature has insufficient time to address matters of national security?
Nov '10
Re: Calling Constitutional Scholars Yoo and You.
Based on historical precedent, it was folly to imagine that George Washington would gracefully surrender power at the end of his second term. He did it because he was following the Rules and obeying the Law — a concept that seems to be alien to Obama and everyone in his administration.
But Professor Yoo is right. National defense is the first priority of any federal government, and a national leader must have the power and authority to act quickly.
Sep '10
Re: Calling Constitutional Scholars Yoo and You.
Scott Reusser
Thanks, and thank goodness. But what can be done about it, aside from shining a shaming light on the practice, as Troy suggests? Acting "against the clear wishes of Congress" would seem to merit a Constitutional challenge, no? Or are we stuck with this unhappy by-product of a powerful executive, which is so necessary in other contexts? · Jan 3 at 2:38pm
How do we curb these current near-dictatorial executive power plays? Soft civil disobedience, such as companies refusing to comply (I loathe that word) with any regs that originate from exclusively executive edicts will result in court battles all the way to SCOTUS. (Lower court rulings would likely side with the Democrat-controlled executive). But that also may be prohibitively costly. Someone smarter than me, like Professor Yoo, give me some hope! What is the answer?
Nov '10
Re: Calling Constitutional Scholars Yoo and You.
All of you are tip-toeing oh-so-carefully around the elephant in the living room.
When the Federal Government goes completely off the rails, when it no longer obeys the Law, when it no longer respects the principles of our Founding Fathers, when it makes a mockery of elections and the democratic process, when it simply ignores the will of 70% of its citizens and rules by fiat, that is a recipe for Revolution.
We are going to get nowhere until Ricochet is willing to discuss the "R" word, because, by 2012 at the latest, that may very well be the only real option we have to save ourselves from socialist serfdom.
May '10
Re: Calling Constitutional Scholars Yoo and You.
I too question the difference between the authority of the executive branch regarding foreign and domestic affairs. As is evident, war can very easily provide presidents with a pretext for crippling domestic controls. The attempt at granting the executive branch broad powers for foreign affairs and delimited powers for domestic affairs has a very poor historical record. Historically, war has been the health of the state. The threat of foreign attack has been used to justify everything from the Patriot Act, to warrantless wiretapping, to financial surveillance, to price controls, to restrictions on free speech.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Lady Kurobara: All of you are tip-toeing oh-so-carefully around the elephant in the living room.
When the Federal Government goes completely off the rails, when it no longer obeys the Law, when it no longer respects the principles of our Founding Fathers, when it makes a mockery of elections and the democratic process, when it simply ignores the will of 70% of its citizens and rules by fiat, that is a recipe for Revolution.
We are going to get nowhere until Ricochet is willing to discuss the "R" word, because, by 2012 at the latest, that may very well be the only real option we have to save ourselves from socialist serfdom.
The willingness (or ability) of the American people to wage a successful revolution are about as firm as the desire of Charlie Sheen to become a Gregorian monk. Americans care about Miley Cyrus getting lifted on government weed, not revolution (or secession).
Edited on Jan 3, 2011 at 6:09pmMay '10
Re: Calling Constitutional Scholars Yoo and You.
It's very strange that Lady Kurobara thinks it's too dangerous on national security grounds for Congress to restrain the power of the presidency... but she is perfectly content talking about revolution as a solution to overweening government.
May '10
Re: Calling Constitutional Scholars Yoo and You.
Conor Friedersdorf: It's very strange that... is perfectly content talking about revolution as a solution to overweening government.
It’s not strange at all. The latitude the president has with regard to foreign affairs is in place to preserve our rights as a nation and as citizens of that nation. Channeling that same power in a domestic direction with the level of Constitutional defiance that Lady K. describes is tyranny. I don’t think she’s talking about overweening government. Lady K is talking about a potentially irreparable loss to our freedom and that is a catalyst for revolution. I would be careful to dismiss anyone who brings it up as being “content” to call on it as a solution. That’s like saying the homeowner who feels threatened by an invader is “content” to pull out their firearm. All things being equal they would just as soon not have the situation and be enjoying a good night’s sleep. But, do you notice how many people in America own firearms? It’s a serious discussion, why we have so much at stake, and why this next Congress had better fix it.