John Yoo on the Intent of the Framers: In a New York Times op-ed defending the Bush Administration's approach to Executive Power, John Yoo makes the following claim:

[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.

Any ideas as to what historical evidence supports this claim?

An Interesting Contrast: One more thought on John Yoo's op-ed. It's interesting to contrast Yoo's comment about the Bush Administration's view of the Executive power with what he wrote a few years ago about the Clinton Administration's view of Executive power. Here is Yoo today:

A reinvigorated presidency enrages President Bush's critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. . . .

The changes of the 1970's occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon's use of national security agencies to spy on political opponents. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.

These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks.

Contrast this with what Yoo wrote back in 2000 on the Clinton Administration's approach to executive power, as I blogged about back in February:

President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.

Source: John C. Yoo, The Imperial President Abroad, in Roger Pilon, ed., The Rule of Law in the Wake of Clinton 159 (2000).

  To be fair, in the 2000 essay Yoo suggests that he himself favors a strong executive, such that having an "imperial presidency" isn't all that bad. But I think it's interesting that in 2000, Yoo thought that President Clinton was "exercis[ing] the powers of the imperial presidency to the utmost," with the resulting "costs to the Constitution," whereas today he seems to lament that before Bush the Presidency was excessively weak and not playing its proper strong constitiutional role. Am I missing something, or are these statements diametrically opposed to each other?

More on John Yoo's Criticism of the Clinton Administration: I mentioned John Yoo's 2000 essay on the Clinton Administration's view of executive power in my earlier post, and while it's not online, I did find a video of him presenting the paper at the Cato Institute. The substance of Yoo's talk begins around the 26:30 mark. It's very interesting to watch. At the 28:30 mark, Yoo states his basic view that the Clinton Administration's foreign policy has undermined the rule of law in three fundamental ways:

First, I think, in order to achieve their foreign policy goals, the Clinton Adminisitration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration. The second thing is that the Clinton Administration has displayed a fundmental disrespect for the rule of law. Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outragous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is. And the the third thing is a matter of consistency. I think one of the things the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton Administration, as I'll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn't say anything at all, and goes ahead and does what it intends to do anyway.

  Yoo's first example is the Clinton Administration's creative intrepretation of the Anti-Ballistic Missile treaty in early 2000. The treaty blocked building an ABM system, but the Clinton Administration wanted to start building a radar system that would be the beginning of an ABM system. According to Yoo, the Clinton avoided the treaty obligations by interpreting the treaty implausibly to allow for building radar that might be the beginning of an ABM system. Yoo criticizes this creative executive interpretation for "trampling on the Senate's role" in making treaties and avoiding having to go through a democratic process to change governing policy.

  Yoo's second example is Administration's expansive approach to executive war powers, and the fact that the Administration was eager to act without Congressional approval in deploying troops. Yoo argues that the Clinton Administration was "one of the ones that most easily goes for the gun in foreign affairs" among recent Presidential Administrations, and states that while most Presidents had "never admitted" that the War Powers Act was constitutional and binding on the Executive Branch, they had always complied with it anyway until Clinton violated the Act in Kosovo. Yoo criticizes the Clinton Administration for never offering a public explanation for its apparent violation of the War Powers Act.

  Finally, Yoo criticizes "liberal academics" for their failure to criticize the Clinton Administration for taking these steps. Yoo suggests that these liberal academics are only interested in opposing conservative Administrations, and that they have been silent in Clinton's case because they approve of his politics. Yoo ends with a criticism of the Clinton Administration's willingness to cede U.S authority to international law and international organizations.

Julian Ku on Me and Yoo: Over at Opinio Juris, Julian Ku argues that John Yoo's criticisms of the Clinton Administration in 2000 aren't inconsistent with his defense of the Bush Administration today. If you've been following this thread, definitely check it out.