The man who developed the Bush Administration’s policy on executive power, John Yoo, has received a lot of attention recently, both in the Blogosphere and the MSM. Many of Yoo’s ideas are, to put it mildly, extreme and historically without foundation. But where did they come from? Has he always believed these things?
I went to law school with John; we were casual acquaintances. A couple of vignettes might be revealing:
1) During my first year (and John’s second), we were both enrolled in a seminar entitled “The Structure and Performance of the Administrative State”–a sort of advanced administrative law class. One key theme of the class was congressional control of, and often grotesque interference with, administrative agencies. Not surprisingly, we discussed what could be done about this. For John, it was an easy question: “it’s simple,” he said. “Nixon had the right idea. Just impound the Congressional budgetary appropriations.” Understand what John was saying here: if the President didn’t like something that Congress had decided to spend money on, he could simply order the Treasury not to release the money. it’s one thing to do this on a temporary basis for management purposes, as Presidents since Washington had claimed the power to do; it’s quite another to do so for policy reasons. For John, the President had the inherent authority just to rewrite the budget himself.
2) Like many other talented law students, John wrote a law review article–called a “Note”–for the law journal. It concerned the statutory interpretation philosophy of John Marshall, the first Chief Justice. Its title is “Marshall’s Plan.” Cute–better than any title of my articles. What the reader won’t know is that originally, it was quite different. It was originally called something like “Strange Bedfellows” and purported to show that John Marshall’s philosophy of statutory interpretation was the same as that of Justice Scalia. The original article tried to compare Marshall’s opinion’s and show that were Marshall on the court today, he would do what Scalia does, i.e. reject “legislative history” as a guide to interpretation and rely on “textualism.” All of which is very interesting, with one flaw: it isn’t true. You might like Scalia, but John Marshall he ain’t. According to the editor who worked on the piece, it relied on a series of, shall we say, very creative readings of Marshall opinions. “I made him take all of them out.” And what’s left is a very small footnote at the end of the piece sort of making the argument. (I should be clear: Yoo was not being dishonest: he just wasn’t able to see that his own ideological presuppositions are not the same as good scholarship. No wonder he found such a congenial home in the current administration.).
Does all of this prove anything? No–I certainly wouldn’t want to be held to everything I did or said in law school. People’s views change. But Yoo’s don’t seem to very much. And when he–or others who agree with him–argue that they have to defend broad Presidential power because of national security concerns, or because that’s just the fairest reading of the law, the rest of us have the right to exercise what the greatest 20th century constitutional scholar, Charles Black, once called “the sovereign prerogative of philosophers–that of laughter.”