John Yoo, one of the legal scholars most infamous for authoring the torture memos that broadly expanded presidential power in the War on Terror, has weighed in on Elena Kagan’s nomination for the Supreme Court. Examining Kagan’s 2001 paper “Presidential Administration“, he concludes that concerns about Kagan’s support for expanded executive power have been greatly overstated. In fact, according to Yoo, Kagan doesn’t support executive power enough. Here is part of his conclusion:
Alexander Hamilton first made clear that the president’s right to fire his officers and his substantive powers over foreign affairs and national security all flow from the same constitutional source. “The general doctrine then of our Constitution is, that the executive power of the nation is vested in the president,” Hamilton wrote in defending George Washington’s 1793 Neutrality Proclamation, “subject only to the exceptions and qualifications” in the text itself.
But if presidents cannot constitutionally command their secretaries of defense, as Ms. Kagan would allow, they certainly do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders.
The framers designed the presidency to play a modest role at home, using the veto to check Congress’s excesses. In foreign affairs, however, the chief executive should enjoy flexible powers to grapple with challenges abroad for which Congress is ill suited. Ms. Kagan seems to harbor a reverse image of the original presidency — vigorous domestically, constrained internationally.
Yoo’s article ends on a disingenuous note. We are living in an age where broad interpretations of executive power have become the norm rather than the exception. Someone unfamiliar with Yoo’s memorandums would be led to think that enlarged executive power only allowed the Bush administration greater room for acting internationally to prevent terrorist attacks on America – even if this did include torture. This leaves out the fact that it was also used to infringe on domestic civil liberties as well, including wiretapping and the detention of American citizens without trial. Partially as a result of Yoo’s rationale, we can no longer draw a clear line between international and domestic executive power and know precisely how and where it should be limited.