Not surprisingly, Boalt Hall monarchist John Yoo has taken to the pages of the McPaper to argue that the Supreme Court went too far in constraining the powers of the King of America. His claim that the Court “tossed aside centuries of American history”–presumably based on his argument that the Constitution established a system in which the executive had similar powers to the powers Blackstone attributed to the British crown–is simply not serious. (And, indeed, even he seems to be aware that these arguments wouldn’t fly.) In addition to that, however, here’s some classic (to put it charitably) evasion of the key issue:
As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes.
Except, of course, that what Bush did doesn’t fall into either the “with” or “without” category of Congressional approval, but falls into the third category of acting against the will of Congress, and “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” As I mentioned in the previous post, Bush’s actions are nothing like Lincoln’s, and Lincoln never made anything like the assertions of presidential power than Yoo and Bush have. And, of course, You wants to have it both ways on the question of whether the conflict with Al Qaeda is a war. The President is “waging war” when this can be used to enlarge the powers of the presidency, but when the existing law constrains the President in some way the conflict with Al Qaeda becomes sui generis and requires even more power (and presumably Bush will no longer be “waging war” when it comes to the question of whether the Geneva Conventions are applicable as well.)
In addition, Yoo also claims that “[t]he circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA.” But, of course, there’s nothing about having the executive branch conduct trials that inherently prevents incompetent prosecution tactics or prevents crazy people from making spectacles of themselves during proceedings (assuming that these proceedings have any due process at all); it just means we wouldn’t know about it. Moreover, since the “pathetic (and probably insane) bit-player” was convicted, it is (to put it mildly) not clear how ordinary judicial processes can’t protect national security. And if they don’t, Bush is free to use military tribunals that conform to the requirements of legislative enactments, and if these are inadequate he can urge Congress to change the laws.
…In fairness, as Pithlord notes in comments, it’s not strictly accurate to say that Yoo wants to give the President the same powers Blackstone saw inherent in the British monarchy. He wants to read the Constitution to give the president more powers than an 18th century British monarch:
Blackstone did *not* claim that Crown prerogatives in relation to war and the military were beyond Parliamentary regulation. On the contrary, if Parliament had said that the King’s military commissions had to have the same procedures as his courts martial, then they damn well had to have the same procedures. (Indeed, it was an offence akin to treason in eighteenth century England to assert that there were prerogatives of the Crown that could not be modified by Parliament — a view associated with the Jacobites who wanted the Stuarts back. Blackstone would presumably have had Yoo handed over to the local constabulary.)