Yoo-thenizing the Constitution

April 3rd, 2008



While I was living in Mexico City in February 1995, the newly elected Mexican President Ernesto Zedillo arrested Raul Salinas, the brother of Zedillo’s powerful and wealthy predecessor, Carlos Salinas. Raul was arrested for a high profile assassination among other suspicions. It was a glorious moment in Mexican history.

As a friend told me the story at the time, Carlos, despite having completed his Presidency a few months prior, sent security forces loyal to him and his allies, to intervene in the arrest. In response, Zedillo sent the military to ensure the arrest took place. Additionally, Zedillo made a grand declaration that would fundamentally alter the future of Mexico and begin its transformation from a corrupt third-world banana republic into a free, liberal democracy. Zedillo asserted that “Today, nobody… absolutely nobody, is above the law. We are no longer a country of powerful men, but a country of powerful laws!” Because, in essence, THAT is the difference between democracy and dictatorship, the difference between freedom and authoritarianism. The rule of laws and equal justice under the law for all, rather than the rule of the whims of men regardless of how they arrived at their position.

This is why the memo revealed this week, written by the then-Deputy Assistant Attorney General, John Yoo, for the Department of Justice (how ironic is that?) is so terrifying. Yoo seemed to feel that by fiat, authorized by no written law and certainly by nothing written in the Constitution, the President could suspend the Constitution. Yoo wrote that, “Our office recently concluded that the Fourth Amendment had no application to domestic military operations.” Since Yoo felt no official declaration of war by Congress was even needed to conduct “military operations” within the U.S., it effectively gives the President unlimited powers to unilaterally end Constitutional rule (if the 4th amendment, which guards against unreasonable search and seizure, is arbitrarily dispensable, what part of the Constitution isn’t?).

Yoo asserts that because the President holds the title of “Commander-in-Chief” that this “sweeping grant vests in the President the ‘executive power’,” and allows him to usurp “specific enumeration of the powers-those ‘herein’-granted to Congress in Article I.” Yoo claims that this unlimited power is a simple pragmatic reading of the Constitution, because of, “the functional consideration that national security decisions require a unity in purpose and energy that characterizes the Presidency alone.”

Particularly in the midst of the “War on Terror,” a war without foreseeable end, what limits on presidential power would this view of government recognize? How would we be different than a dictatorship, with Congress allowed to write laws only when the President sees fit, and the President allowed to declare anything he wants to be law?
Officers of the military, cabinet members and the President himself have sworn to “preserve, protect, and defend the Constitution of the United States, against all enemies, foreign and domestic.” But Yoo’s take would turn this pledge on its head. The President cannot both abrogate the Constitution and preserve, protect and defend it as well.

In fact, I argue that John Yoo himself is an enemy of the Constitution, one from whom it needs protection and defense. But if we kick him out, where is he to go? He can’t go to Mexico, since it has become a more democratic country than Yoo wants. Maybe he would feel more comfortable in Russia with Vladimir Putin or in Iran with Mahmoud Ahmadinejad. Then he can fully appreciate what it means to live in a country where limits on Presidential power reside in the desires and mind of, “the Presidency alone.”