John Yoo attacks Kagan for agreeing with Supreme Court majority that presidential power is not unlimited

Blog ››› ››› ADAM SHAH

In a New York Times op-ed, John Yoo -- author of the infamous torture memos -- attacked Elena Kagan for agreeing with the Supreme Court majority rather than Yoo himself on the limits of presidential power. Yoo, a law professor and Philadelphia Inquirer columnist, previously urged a filibuster of anyone Obama nominated.

By attacking Kagan for not having the same extreme views as he does on executive power, Yoo does at least provide a rejoinder to those who forward the myth that Kagan will act as a rubber stamp on war on terror policies.

In his Times op-ed Yoo attacks Kagan for stating views of presidential power that are "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." Yoo goes on to attack Kagan for not adopting his own and Justice Scalia's views that congressional attempts to limit the president's control over the executive branch are unconstitutional:

In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. "I acknowledge that Congress generally may grant discretion to agency officials alone," Ms. Kagan wrote, and "the president must respect the limits of this delegation."

Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton's centralization of authority in the White House because it fostered "accountability" and "effectiveness"). But she argued that the Constitution gives the president no power to prevent Congress from doing so.

This is simply wrong. Article II of the Constitution vests in the president alone "the executive power" of the United States. As Justice Antonin Scalia wrote in his dissent from the court's 1988 decision upholding the constitutionality of the Office of the Independent Counsel, "this does not mean some of the executive power, but all of the executive power." (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)

It must be noted that the legal analysis of the president's inherent powers Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public. Additionally, the Justice Department reportedly specifically repudiated Yoo's claim that the Fourth Amendment had "no application to domestic military operations."

Furthermore, at least one of the Bush administration's claims of executive authority went too far even for Scalia. In Hamdi v. Rumsfeld, a case in which a majority of justices rejected the Bush administration's power to hold U.S. citizens as enemy combatants on U.S. soil without access to civilian courts, Scalia went even further than the majority. In a dissenting opinion joined by Justice John Paul Stevens, Scalia argued that Congress had not authorized the suspension of habeas corpus and therefore the executive branch did not have the power to hold citizens like Hamdi. (Congress has since authorized detentions in the Military Commissions Act.)

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