Wednesday, May 26, 2010

Protests Too Much

This is rich -- John Yoo thinks we should be concerned that Supreme Court nominee Elena Kagan might not take a sufficiently broad view of executive power. That's kind of like saying that Tiger Woods is concerned that she's single.

John Yoo was Deputy Assistant Attorney General in the Bush Administration and wrote the infamous "torture memo." He takes the broadest view of executive power around, and his reasoning isn't even remotely responsible. In the torture memo, for example, he said that, in light of the President's power as Commander in Chief, a statutory prohibition against torture had to be construed so as not to apply to interrogations undertaken pursuant to the Commander in Chief authority, and he didn't even mention Congress's war powers. It's one thing to reach a conclusion after considering both sides, but he just ignores the other side.

And he's still doing it. Even in his Times piece, he describes the view that Congress can insulate agency officials from the President's removal power as "simply wrong." Simply wrong! His evidence -- Justice Scalia's dissenting opinion in Morrison v. Olson. He doesn't mention that the vote in that case was 7-1 -- Justice Scalia was alone in dissent. He goes on to say that "From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities." He doesn't even mention that this hasn't been the law at least since the Supreme Court's decision in Humphrey's Executor in 1935, more than 70 years ago.

So boy, I'm really concerned that John Yoo might not approve of Elena Kagan. Actually, I'm not. His disapproval is more like a recommendation.


Peter said...


My con law professor once chastised me for not reading the dissenting opinions in Supreme Court cases. He said "today's dissent is tomorrow's law."

I wonder whether you dismiss other dissenting opinions the way you dismiss Scalia's? For instance, how about Stevens' dissent in Citizen's United?

Holding a minority opinion does not make one wrong. It is the reasoning of the dissent and not the fact of the dissent that should be challenged.

For the record, I enjoy your blog. I sometimes disagree with you, but you always make me think.

Anonymous said...

Peter, there's a difference between recognizing that a dissent presents a legitimate (albeit not controlling) opinion about the law and citing a dissent as an accurate statement of the law.

Jon Siegel said...

I agree with anonymous. My point is not that Justice Scalia was wrong. My point is that Yoo says that the other side is "simply wrong" and cites Justice Scalia's dissenting opinion as his proof. It's a little much to say that a side that got seven votes out of eight is "simply wrong."