The Case Against Obama: Why John Yoo is Wrong

 

Benedict ArnoldJohn Yoo argues that Obama’s executive action on Iran does not violate the law: 

Today, conservatives disagree with President Obama’s use of these constitutional reservoirs of power to reach for the mirage of a rapprochement with Iran. But those same powers have served presidents from Lincoln, who invoked broad executive power to fight the Civil War and free the slaves, to FDR, who brought the nation into the war against the Axis powers, to Truman and Reagan, who, respectively, oversaw the Cold War at its beginning and toward its end. The next president will need those powers again when he or she quickly turns policy toward Iran in the opposite direction.

In the next weeks, conservatives will have ample opportunity to persuade the American people against the Iran deal on its merits. Presidential candidates will explain the steps they will take to undo the damage that Obama has inflicted on our national security. But they will make a serious mistake if they seek the short-term political end of defeating the Iran deal by crippling the Presidency’s long-term powers to defend the nation.

In contrast, Andrew McCarthy argues, in the National Review, that Obama deserves impeachment for his deception over Iran:

The Constitution forbids providing aid and comfort to America’s enemies. And the Framers’ notion that a president would be punishable for deceiving Congress regarding the conduct of foreign affairs meant that lawmakers would be obliged to use their constitutional powers to protect the United States — not merely shriek on cable television as if they were powerless spectators.

Well?

John Yoo’s defense of presidential power has good historical precedent. Mr. Yoo proves himself not to be a sunshine patriot, but a man who believes in his country deeply. However, Mr. Yoo has entirely missed the central issue. It is not long-term presidential power that is at issue. It is the intentional deception of Congress to the end of providing aid and comfort to an American avowed enemy.

The Corker Bill was passed while the President was deceiving Congress about the nature and scope of the agreement that was to be crafted in Geneva. Even after the signing of the agreement, the so-called side deals have not been completely disclosed to Congress. These side deals contain absolutely critical elements that Congress would never have considered.

The extent of the deception is huge. The agreement in reality constrains Iran in almost no material way regarding nuclear weapons, and thus releases all sanctions upon Iran in exchange for nothing. The Iranian regime has been an avowed enemy of America since its inception. On a weekly basis, for 35 years, mass rallies have been held in which the phrase “Death to America” is screamed repeatedly. The signing of the agreement has not only brought no change in this behavior, but prompted both the chief negotiator and the Supreme Leader of Iran to reiterate their contempt for America and their willingness to do everything in their power to damage it.

In his deception about the nature of the negotiations with Iran, the President has shown both total contempt for the Constitutional authority of Congress and wilful, treasonous behavior in consort with an enemy of the United States of America. That is the issue.

Regards,

Jim

Published in Foreign Policy, General
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  1. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    If Congress is “deceived” into granting the President powers over and above what is laid out in the Constitution, I tend to hold Congress to blame more than the President.

    If Congress gives powers to the President that they shouldn’t have, that doesn’t make the President in violation of the Constitution. It means that Congress betrayed and weakened the Constitution.

    If the argument is that the President was so mendacious that it counts as “high crimes and misdemeanors”, well then there’s a process in place for Congress to hold him to account, but that still wouldn’t make the Corker Bill or the President’s executive action unconstitutional.

    Congress gave him the authority, fair and square, with eyes wide open.

    If the deal is a bad one, they have a duty to vote against it. If the deal is based on lies to Congress, they have the option to impeach. In any scenario I see, the buck stops with Congress.

    • #1
  2. user_891102 Member
    user_891102
    @DannyAlexander

    #1 Misthiocracy

    But see here:

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/21/is-the-iran-deal-constitutional/

    I’m not sure that ConLaw admits of Jewish halacha-style “lehatchila-versus-bedieved” distinctions.

    • #2
  3. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Danny Alexander:

    But see here:

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/21/is-the-iran-deal-constitutional/

    I’m not sure that ConLaw admits of Jewish halacha-style “lehatchila-versus-bedieved” distinctions.

    Yabbut, from the link:

    As Jack Goldsmith and Marty Lederman have argued, the deal could be legally valid without congressional approval if it is a nonbinding executive agreement. But that, of course, means that a future president (or even President Obama himself) could renege on it at any time.

    I personally believe this interpretation to be true. If an international agreement isn’t ratified as a treaty, that means it’s not a treaty. It can still be constitutional though. It’s merely an agreement between the foreign country and the current administration.

    After all, President Obama is merely promising in this agreement to refrain from taking certain actions as President.

    If the President can refrain from deporting illegal aliens without violating the Constitution, surely he can also refrain from taking actions against an enemy regime as well.

    A treaty binds Congress, and the nation as a whole, to certain actions, but a treaty is not required for the President to simply promise to another country to refrain from taking certain actions while that President is in office.

    It’s sorta, kinda, similar to NAFTA, which is not a treaty (though it was passed by an Act of Congress). Under NAFTA, the US promises to refrain from a particular action (i.e. charging tariffs).

    • #3
  4. user_82762 Inactive
    user_82762
    @JamesGawron

    Mis,

    I think you have also failed to grasp the issue. Corker has nothing to do with it. The Corker process has been useful in exposing the real problem. The President of the United States has deceived Congress in that he claimed he was conducting foreign policy in the interests of the United States of America as is his sworn duty. He was to conclude a deal on the basis of real concessions in the area of nuclear weapons and on the basis of the change in behavior that this “deal” would bring.

    The actual arrangement as the Corker process has managed to reveal is that there is nothing that Iran is giving up. The Iranian chief negotiator and the Supreme Leader have been most helpful in making it clear no less than one week after signing that they consider the United States an enemy and will pursue a policy of damage to the United States.

    In short the President has created a grand cover story to hide his treasonous intent. He has aided and abetted the designs of a foreign enemy power. He has done so against the advisement of his own defense establishment and the vast majority of Congress. Needless to say every poll shows that the vast majority of the American electorate are dead set against this deal even as they have not been fully informed of the utter absurdity of this non-treaty, non-agreement, non-detente, nonsense.

    The President is guilty of the highest crime that he could commit.

    Regards,

    Jim

    • #4
  5. Mark Thatcher
    Mark
    @GumbyMark

    The Corker deal allowed Congress to have an authority it simply did not have before then.  That’s because Congress gave up the ability to determine when sanctions could be lifted against Iran.  It initially did this under the Bush Administration under the theory it did not want to tie the President’s hand.  It was extended under the Obama Administration.  The only reason there is even going to be a Congressional vote is because of the Corker deal.

    The root cause of the problem is Congress long-standing abdication of its authority in this area, an abdication that reaches back decades (though others like Prof Yoo would insist Congress has no role in this area).

    • #5
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