New Boss, New Rules? Yoo and Bolton on Executive Power

Some corners of the blogosphere are having a belly laugh over an op-ed co-authored the other day by John Yoo and John Bolton, published in the NYT. The column is styled as a warning to incoming president Obama to beware the temptation to use the office of the president to unilaterally entangle the US in a “dense web of treaties and international bureaucracies.” In a nutshell, it looks like they are concerned that Obama will go all Koyto or landmine-treatyish or something, thus tying one of America’s economic or military hands behind its back. And so they remind Obama that the Constitution requires that treaties gain the approval of 2/3 of the Senate for precisely this reason, viz.,  

“to protect the interests of the states from being bargained away by the president in deals with foreign nations. The framers required a supermajority to ensure that treaties would reflect a broad consensus and careful, mature decision-making.”

So why the chortling? Well, because there are few men in America over the last eight years who have had less time for constitutional limits on executive power. Yoo, in particular, is the author of the notorious “torture memos” that offered a rather narrow definition of “torture” and which many people claim led directly to the horrors of Abu Ghraib.

Is there any more to this change of heart than the usual flip-flopping of principles that happens whenever one party takes over from another? Is there any relevant difference between the sort of executive power exercised by someone like George Bush, and the same power as it might be exercised by Obama? Bolton and Yoo argue that the key difference is in the kind of power likely to be affected. Eoconomic agreements, like Bretton Woods or NAFTA, might not need 2/3 approval in the Senate, but international agreements that touch on national security certainly do.  

Over at Volokh, Eric Posner argues that this is a bogus distinction:

Certainly, the framers did not make such a distinction, and Bolton and Yoo do not explain why there should be different rules for different types of treaties. If the Obama administration can further erode the Senate’s role in treatymaking, this will strengthen the president’s hand. John Yoo thinks that the president has the power, and ought to have the power, to make war, control American troops, and dominate American foreign policy; if he can do all that, why shouldn’t he also have the power to make the agreements that America’s foreign policy requires?

Essentially, Posner is asking the obvious question: Why shouldn’t Obama be entitled to the same presidential powers that Bolton and Yoo claimed for their guy?

There is one line of argument that preserves consistency for someone sympathetic to Yoo’s position. For Yoo, there is a crucial distinction between a treaty that touches on the state’s economic authority, and a treaty that limits its power to make war and direct national security. Since the primary task of the President, during a time of war, is protecting US citizens, any hindrance to that capacity, whether US and international law or even Congress, can be considered unconstitutional.”

John Yoo is heavily influenced by the writings of the Weimar political theorist Carl Schmitt. Schmitt believed that the liberal commitments to a division of powers, checks and balances, a charter of rights, and so on, are only sustainable during times of “normal” politics, i.e. peacetime. When faced with an existential threat, Schmitt argued, essentially, that liberalism shows itself up as a sham — that a liberal state will inevitably abandon all of these commitments in the name of self-preservation. In abnormal times, the state becomes highly centralised, almost monarchical in operation, with everything, including the rule of law, subordinated to the demands of national security and survival. It is easy to see how this line of reasoning could be used to justify an unencumbered executive in the post-9/11 era. 

In short, I don’t think Yoo and Bolton are being as inconsistent it might appear. Of course, that consistency comes at the cost of adopting an extraordinarily cynical view of liberalism democracy. and the state that borders on the nihilistic. 

For further reading: David Dyzenhaus of UofT has an excellent book on the subject of the newfound relevance of Carl Schmitt post 9-11.

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