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John Yoo: Lincoln Was Worse Than Bush

Via L,G & M, I ran into this interview of John Yoo:

NYTimes: Which president would you say most violated laws enacted by Congress?

[YOO]: I would say Lincoln. He sent the Army into offensive operations to try to stop the South from seceding. He didnít call Congress into special session until July 4, 1861, well after this had all happened. He basically acted on his own for three months.

The interesting thing about this is Yoo claimed that Lincoln's actions were consistent with the Constitution. I do not recall him ever claiming Lincoln's actions violated laws enacted by Congress. I wrote about this issue back in 2005:

A Supreme Court opinion cited by Yoo/Bybee to support their assertions of plenary Presidential power is The Prize Cases, decided in 1863. To Yoo/Bybee, the Prize Cases stand for the proposition that the President has unfettered power to act to defend the security of the Nation. But what did the Prize Cases actually say? The Prize Cases involved the seizure of certain vessels who tried to defy the blockade of the South declared by President Lincoln prior to the formal declarations by Congress of an insurrection. Subsequently, four months later, Congress did make such declaration. So does this buttress Yoo/Bybee's point? Let's see:

By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.

If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral." . . . This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

. . . Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands."

. . . If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States.

. . . On this first question, therefore, we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion which neutrals are bound to regard.

If this is support for the Yoo/Bybee view, I don't see it. Lincoln took up arms, via blockade, against the insurrection, formal and declared, of the Southern states. What that has to do with the matters at hand is not clear at all to me. Moreover, Congressional acts are cited as authority for the President's actions. Surely this does not argue for unfettered Presidential Commander in Chief power. In essence, the Prize Cases, the Apollon case and others cited by Yoo/Bybee relate to the President's ability to act in defense of the country when the country is attacked. Think Pearl Harbor. The question of waiting days or weeks for Congressional action to act in defense of the Nation is what those cases were about. If Bush were to have acted to stop the 9/11 attacks without Congressional authorization then the analogy would hold. But unless Bush is acting in ways to stop specific attacks that are imminent and by known parties now, then these analogies do not hold. What Yoo/Bybee argue for is that the President can turn the country into a police state by invoking Commander in Chief powers. And this is simply ludicrous.

What's interesting to me is that Yoo has reversed his view that Lincoln acted within law (and by analogy, in his original construct, so had Bush). Now Lincoln was the "most lawless." Perhaps he does not understand how he undermines the proposition that he was giving his "best legal advice" to the Bush Administration by these strange claims.

Dave Noon of L, G & M also notes the continuation of Yoo's bizarre argument that the Founders were creating a new government figure with King-like powers:

That would require [. . .] that we discover some proof that the framers -- operating on republican principles that far exceeded those existing in the British constitutional monarchy -- suddenly decided that the president should enjoy greater war prerogatives than the dreaded king of England had at his disposal.

Yoo repeats his line of thinking in the NYTimes interview:

The idea is that the presidentís power grows and changes based on circumstances, and thatís what the framers of the Constitution wanted. They wanted it to exist so the president could react to crises immediately.

This is, of course, silly. But what is of particular interest is that it certainly undermines the idea of a "textualist interpretation" of the Constitution, generslly revered by conservatives. The reality is that Yoo does not even have to go there to make his defense of Bush. He should have worked harder to analogize Bush's actions to Lincoln's actions. A hard road I admit, but better than the blather he provides. He truly makes ridiculous arguments. If you are interested in reviewing again why they are ridiculous, see this.

Speaking for me only

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    I haven't read the Yoo memos in a while (none / 0) (#1)
    by andgarden on Wed Dec 30, 2009 at 08:05:15 AM EST
    but my recollection is that he didn't even bother to cite Youngstown. You'd expect better work from a tenured law professor.

    Of course, he went to high school at a crosstown rival, so. . .

    Interesting post.. Looks like George (none / 0) (#2)
    by oculus on Wed Dec 30, 2009 at 10:27:40 AM EST
    W. Bush had constitutional authority to attack Saudi Arabia following 9 11.

    P.S. Would SCOTUS include such Latin phrases today or reference Minerva?