Crisis and Command

Crisis and Command by John Yoo reviewed by Timothy Sandefur

John Yoo did not title his book Crisis and the Constitution, and for good reason: It is not about the Constitution. Starting with a list of "great presidents" assembled by a Federalist Society poll of 85 historians, Yoo describes how each one expanded the reach of the office, and concludes that they were great "because they were so bold as to assert power with extraordinary vigor ... in the most contested or doubtful circumstances." This is a clever tactic, because it enables Yoo to defend limitless presidential power while avoiding specifics. Challenged to justify any particular example, he can always back off and say he's only describing history. Yet the cumulative effect is to argue that presidents may legitimately do whatever they can get away with.

Yoo implies, without actually saying, that James Polk's fraudulent declaration of war on Mexico, Andrew Jackson's defiance of Supreme Court decisions supporting the rights of the Cherokees, and Franklin Roosevelt's order sending innocent Americans of Japanese ancestry to internment camps, were all consistent with their constitutional authority. ("The debate over the necessity" of Japanese internment "continues," Yoo claims; does it really?) For 446 pages (not including footnotes), one looks in vain for any principled limit on presidential power. The only acts Yoo expressly disapproves of are those that aroused significant Congressional opposition, as in Watergate or Andrew Johnson's impeachment. Johnson was a failure because "Congress disagreed so sharply over the executive branch's definition and use of its constitutional powers." So are presidents the judges of their own authority, up to the very moment when they are impeached?

For Yoo, the answer seems to be yes. In 1846, Polk secretly ordered soldiers onto Mexican territory, provoking a military response, which Polk then pretended was an attack on America. The resulting war snatched away a third of Mexico's land, which was illegally annexed by statute to provide new land for slavery's expansion. How can this accord with the president's duty to enforce laws made by Congress, let alone with principles of justice? Yoo doesn't explain. Instead, he writes, "A president with a modest view of his constitutional powers would have shrunk from provoking a war over the Texas border, not to mention invading Mexico. Only by fully exercising the powers of the Presidency, laid down by Jackson, could Polk have realized his dream of reaching the Pacific." Does this mean that Polk's "dream" justified his actions? Why should we not prefer "modest" presidents who respect justice? Are such concerns irrelevant? Yoo doesn't say. He admits that "Presidents like Lincoln and FDR may have gone too far at times," but adds, "we forgive them their trespasses." Do we? Yoo never explains how to identify "trespasses," or when and why they should be forgiven.

One might add that the "powers of the Presidency" were not "laid down by Jackson," but by the Framers, who envisioned a vigorous but law-abiding executive. Yoo seems to think those powers expand simply by assertion. The few instances when he condescends to legal argument make the enormity of this conclusion stark: Congress, he complains, is prone to delay as "a result of the internal structure of Congress, which suffers from serious collective action problems. The passage of legislation through both Houses with many members is so difficult that the Constitution can be understood to favor inaction." It is remarkable to hear "checks and balances" labeled a "collective action problem," but if that's what they are, they were purposely designed to prevent swift, decisive, unjust, and regrettable actions by ambitious officeholders.

It's true that "The unpredictability, suddenness, and high stakes of foreign affairs were the very reasons for the Framers' creation of an independent executive branch," but a king would have been independent, too, and the Framers did not create a king. They were not awestruck by the prospect of a generalissimo dictating to the multitude. Hoping, in Jefferson's words, to "bind [the president] down from mischief by the chains of the Constitution," they created a government of limited and enumerated powers. Yoo, who regards "the notion of an unchecked executive, wielding dictatorial powers" as "a myth," thinks limits on presidential discretion "place the nation in a straitjacket," hindering commanders who should swell their muscles to the utmost limit of political opportunity.

The problem isn't Yoo's conclusions, but his slippery method. While shrugging at presidential "trespasses," he barely mentions Congress' counterbalancing power - its authority to regulate the armed forces is first mentioned on page 421 - and engages in a long tu quoque argument that because Democrats usurped power in the past, they can't criticize Republicans now.

Most misguided of all is Yoo's reliance on the "greatness" poll, which tilts the argument in favor of aggressive presidents in unhappy times. Just as hard cases make bad law, we often call leaders "great" only after many citizens have died violently. Lincoln was doubtless a great man, who saved America in its darkest hour, but was the average person really happier in his day than during, say, the administration of Grover Cleveland? The Founders contemplated a peaceful nation of productive citizens who respected the law and cherished liberty. A leader who holds a steady course through an uneventful era of prosperity deserves the term "great" at least as much as the men who in Yoo's vision boldly stride through history, realizing their "dreams" at the expense of the just and free.

Timothy Sandefur is a principal attorney at Pacific Legal Foundation in Sacramento.

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