John Yoo: An Executive Without Much Privilege





[John Yoo, a law professor at the University of California at Berkeley and a scholar at the American Enterprise Institute, is the author of “Crisis and Command: A History of Executive Power From George Washington to George W. Bush.”]

PRESIDENTIAL power has emerged as a potential topic of controversy in the nomination of Solicitor General Elena Kagan to the Supreme Court. Her supporters from both parties argue that she is a defender of executive power, citing her work as the Obama administration’s advocate in the federal courts. This very claim has made critics nervous about her commitment to civil liberties and her views on using the criminal justice system in the war with Al Qaeda.

True, Ms. Kagan has defended some of the Bush administration’s counterterrorism policies on wiretapping and the detention of terrorists without criminal trial (policies on which I worked as a deputy assistant attorney general under President George W. Bush). But these positions provide little hint about what a Justice Kagan would think about executive authority sitting on the bench in time of war.

When defending its national security policies in court, this administration prefers to rely on Congress’s Sept. 18, 2001, authorization to use military force against those responsible for the 9/11 attacks rather than the president’s inherent powers as commander in chief and chief executive. President Obama may agree with George W. Bush on the usefulness of military commissions to try some terrorists, but he has different ideas about what gives a president the power to create them.

Though Ms. Kagan’s thin record makes it difficult to draw many conclusions on her personal views, her academic work still provides hints into her thinking on this issue. In 2001, she published a 140-page article in The Harvard Law Review, “Presidential Administration,” written when she held no brief for the administration. Some have suggested that because her article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.

This is a mistake that could only be based on reading just the first page of her article. Choosing not to study a treatise on presidential administrative policies containing 527 footnotes is an understandable act of self-preservation. Nonetheless, those who persevere will find that her article clearly and directly rejected the theories supporting the executive branch’s broad constitutional powers. Rather, it is in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch’s powers are quite limited....


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