It's not illegal when the President does it
by Glenn Greenwald
I began writing a post in response to this truly ridiculous Op-Ed by John Yoo in this morning's NYT -- in which Yoo gleefully celebrates every authoritarian transgression of the Bush administration, from torture and pre-emptive wars to endless invocations of presidential secrecy, the issuance of "hundreds of signing statements" declaring laws invalid, and even what Yoo calls the President's assertion of his power to "sidestep laws that invade his executive authority" (what we used to call "breaking the law") (emphasis added in all instances).
But then I thought better of it, because, at this point, anyone who fails (or refuses) to recognize that the President does not have the power in our system of government to violate laws by invoking national security concerns is never going to recognize that. Yoo's Op-Ed is so flagrantly frivolous that it ought not be taken seriously. He even goes so far as to claim that the "founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." How can you be on the faculty of a major law school and say this?
It is indeed true that the President has the power to "check" legislation that he considers "wrongheaded or obsolete" -- by vetoing bills before they're enacted into law, not by violating them after they're enacted into law. The whole point of Hamilton's Federalist No. 73 is to explain the purpose of the veto power, and specifically that "the case for which it is chiefly designed" is "that of an immediate attack upon the constitutional rights of the executive." That is how the President in our system of government defends against Congressional encroachments on his power and imposes "checks" on "wrongheaded or obsolete legislation" -- by vetoing such bills (an action which is then subject to being overridden), not by secretly violating laws at will.
(There's more.)
I began writing a post in response to this truly ridiculous Op-Ed by John Yoo in this morning's NYT -- in which Yoo gleefully celebrates every authoritarian transgression of the Bush administration, from torture and pre-emptive wars to endless invocations of presidential secrecy, the issuance of "hundreds of signing statements" declaring laws invalid, and even what Yoo calls the President's assertion of his power to "sidestep laws that invade his executive authority" (what we used to call "breaking the law") (emphasis added in all instances).
But then I thought better of it, because, at this point, anyone who fails (or refuses) to recognize that the President does not have the power in our system of government to violate laws by invoking national security concerns is never going to recognize that. Yoo's Op-Ed is so flagrantly frivolous that it ought not be taken seriously. He even goes so far as to claim that the "founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." How can you be on the faculty of a major law school and say this?
It is indeed true that the President has the power to "check" legislation that he considers "wrongheaded or obsolete" -- by vetoing bills before they're enacted into law, not by violating them after they're enacted into law. The whole point of Hamilton's Federalist No. 73 is to explain the purpose of the veto power, and specifically that "the case for which it is chiefly designed" is "that of an immediate attack upon the constitutional rights of the executive." That is how the President in our system of government defends against Congressional encroachments on his power and imposes "checks" on "wrongheaded or obsolete legislation" -- by vetoing such bills (an action which is then subject to being overridden), not by secretly violating laws at will.
(There's more.)
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