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Yoo Tortures The Law Again

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He’s back, with another crackpot theory justifying arbitrary executive power in defiance of the plain language of several constitutional provisions as well as the structure and underlying theoretical basis of the Constitution.

As Stephen Holmes points out (and expands on in his new book), it’s not just that Yoo believes as a normative matter — contrary to the fundamental principles of liberal democracy– that power is most effectively deployed when it’s secret and unchecked, but his farcical attempts to locate the monarchical executive in the original meaning of a Constitution that (although it leaves the precise contours of executive power vague) plainly cannot support such a reading:

The Framers charged the President with protecting the nation, he tells us, “even if that meant fighting with the legislature to enforce the desires of the people.” True to their British heritage, Yoo also asserts, the Framers modeled the President’s war powers on those of King George III. They therefore refused to grant Congress even a concurrent power to commence war. At its core, the Constitution embodies the Framers’ intention to prohibit Congress from “encroaching” on the executive’s power to initiate as well as conduct war.

To make his contrarian claim ring true, Yoo whites out contrary evidence and draws dubious conclusions on the basis of fragmentary and carefully selected facts. He disregards the main thrust of the historical record and misrepresents the parts he acknowledges. He ferrets out (and exaggerates the importance of) scattered shreds of evidence that, at first glance, seem to back up his predetermined narrative. This cherry-picking of the sources may explain why he fits so comfortably into an administration known for politicizing intelligence, smothering doubts, silencing critical voices and fixing the facts around the policy.

But why would an aspiring legal scholar labor for years to develop and defend a historical thesis that is manifestly untrue? What is the point and what the payoff? That is the principal mystery of this singular book. Characteristic of The Powers of War and Peace is the anemic relation between the evidence adduced and the inferences drawn. The footnotes and citations teem with ambiguity and complexity, while the summary statements snap dogmatic simplicities. For instance, in a section devoted to the powers of war and peace in various state Constitutions, between independence and the ratification of the Constitution, Yoo uses selective citation to convey the impression that state executives not only possessed substantial foreign-policy powers but were also, when commanding the state militias, freed from any obligation to act according to laws passed by state legislatures. That his case is wobbly on both counts is the least that might be said. But what makes his misleading account additionally baffling is that he cites without comment the very provisions in several state Constitutions that deny the executive branch any power to act except “under the laws” passed by the legislative branch.

Even by the standards of this administration, Yoo is an embarrassment.

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