The un-American constitutionalism of John Yoo

If you're not quite aware of the extent of the damage the Bush Administration and its legal underpinners intend to inflict on the United States before they're done, you ought to check out Glenn Greenwald's post from the other day on former Justice Dept. official and current Berkeley law professor John Yoo's views on the separation of powers in times of war and peace.

Glenn quotes an article in the San Francisco Chronicle that quotes Woo:

We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.

I see two main problems with this view:

1) As Glenn rightly argues: "[I]t's always the case in America (or at least it used to be) that 'Congress enacts the laws, the president enforces them, and the courts interpret them.' That's pretty fundamental to how our country works. In fact, the whole structure of the Constitution is based on that system — not just the 'Peacetime Constitution' we have, but the actual Constitution itself.

Indeed, the constitutionalism that Yoo espouses isn't really American at all: "[The] arrangement [of the separation of powrs and of checks and balances] isn't really a side detail or something that shifts based on circumstance. It's pretty fundamental to the whole system. In fact, if you change that formula, it isn't really the American system of government anymore."

2) It may be argued that a temporary shift of gravity to the executive branch is justifiable in a time of crisis. But, even here, the president would not be constitutionally permitted either to enact laws or to interpret them. The president is, after all, neither a legislator nor a judge. The implication that he (or she) is executor, legislator, and judge is nothing more than a recipe for tyranny. Every schoolchild in American knows better (or should know, if so many weren't being left behind).

Theorists like Yoo – along with practitioners like Cheney advisor David Addington – have long argued for a unitary executive. It is their intention to re-expand presidential power in the post-Vietnam, post-Watergate age. But the problem is not just Bush’s willful lawbreaking itself but that such lawbreaking may go on indefinitely.

This is, after all, a time of war — a long war, a perpetual war. So are we told. So are we threated. The terrorists, however identified, are not about to surrender. Terror, however defined, is not about to end.

The facile Machiavellianism that forms the dark side of Bush's worldview (the one shared, ironically or not, by much smarter people like Yoo and Addington), the other being Manichaean idealism, holds that there is no peace, only war, that times of peace are only interludes between wars, that, in fact, life is war — the life of the Lockean individual in the marketplace, the life of the sovereign state in the geopolitical arena, the life of America in a hostile world.

Given this worldview, Yoo's formulation of the distinction between wartime and peacetime constitutionalism breaks down and becomes one. If there is only war, there is only wartime constitutionalism. Legislators may still enact laws (presumably) and judges may still interpret them (presumably), but the shift of gravity to the executive branch, to the Oval Office, is total. The presidency rises above Congress and the courts, American constitutionalism is un-Americanized, and such quaint notions as the separation of powers and checks and balances go the way of the Geneva Conventions — they get in the way, and must therefore be abandoned.

In Bush's America, the America dreamed up by people like Yoo and Addington and implemented by people like Cheney and the Republican rubber-stampers in Congress, the president enacts laws, interprets laws, ignores law, and is essentially a law into himself (or herself).

Don't think this isn't possible. It's happening right now.