Eric Posner (E) has been busy mocking the realignment of
political principles of both the Left and Right now that the
person possessing the executive power will wear a blue jersey
instead of a red one. In December E’s b.s. detector was
triggered by the shifting positions
of Bush critic David Cole. Now it’s the Right’s turn for a little
smacky-face: in a New York Times editorial by Johns Yoo
and Bolton, E’s noticed a
re-acquired interest in emphasizing limits on executive power.
Some
speculate that this is E blasting away at John Yoo for Yoo
being inconsistent on the topic of executive power. But that’s a
petty summary because E’s lede is, indeed,
the lede: “It didn’t take long for conservatives to
rediscover limits on executive power. You’d think
something—if not philosophical consistency, then at least
manners—would cause them to hold off until, say, inauguration
day.” (Emphasis mine)
E does snipe at Johns Yoo and Bolton’s (partial) defense of the
need for a supermajority of votes in the US Senate to ratify a
treaty. But what is more valuable about E’s comments is his
underlying meta-critical position regarding how day-to-day
partisan politics shape and influence the “principles” that
ideologically-bound partisans hold. Notably, that the principles
are determined by the degree of power those partisans enjoy. A
strong, unitary executive is defensible if you’re a GOPer and
there’s a POTUS-R (and it’s not so much the case if your
preference is a POTUS-D). And now, as January 20, 2009 is
at-hand, the inverse will be the case. This change allows us to
gauge the extent to which arguments made in favor of or against
the Bush Administration’s claims about executive power were
grounded in veiled partisanism or in some other, deeper
conception of the executive that persists despite the particular
partisan affiliation of the current POTUS.
But given E’s post and regardless of the misunderstanding that E
has found an “inconsistency,” it is interesting that it is
Professor John Yoo who is making this case. Prior to this, in the
pages of the New York Times, Yoo has explained,
approvingly, of how the executive power has regained the
“energy”
necessary to act in the post-9/11 age. In the Wall Street
Journal he has
defended Congress’s explicit legislative reprimand of the
judicial branch when the Supreme Court “limited” executive power.
And yet E points out that for no articulated reason Professor Yoo
has shifted his emphasis when discussing executive power in order
to find a
limit that he believes exists on executive power.
This may not be an inconsistent position in terms of Professor
Yoo’s broader vision of executive power, but it is certainly a
decisive shift in what Yoo chooses to emphasize when explaining
executive power in public (he’s speaking of limits instead of
prerogative).
Yoo, rightly or wrongly (probably the latter, but I’m a
relativist without a JD so what do I know…), is despised in many
quarters of the interwebs. Haters consider Yoo a nefarious
spectre haunting the W era and a figure viewed as an immanently
evil force during the aftermath of 9/11. I won’t presume that I’m
the intellectual equal to Professor Yoo and challenge his
credentials or actual arguments that he made on behalf of
President Bush, but I don’t believe it’s disrespectful to suggest
that Yoo is aware of his public image and reputation.
When Professor Yoo ties himself to an op-ed, he is not the writer
of a sensitive piece of legal reasoning that intricately works
through an argument based on his interpretations of specific
statutes and precedents. Instead the action is provocative: he is
an influential public figure offering a first draft of arguments
regarding a specific issue on which he is treated as an
expert. He is legitimizing the terms and tactics that will
trickle down and be regarded as “facts” to other less capable
pundits and eventually to grass-roots partisans.
So when Professor Yoo goes from being a crucial defender of
executive power to pontificating on its limits, it’s kind of a
big deal. And without any other statement explaining the impetus
for his change of tone, the advantage goes to a Schmittian
like E and his cynical theory of the relationship between
partisans and their principles.
P.S. In order to read some of Professor Yoo’s academic papers
check out his UC Berkeley
page (current through 2006).
P.P.S. And way back in 2005: a Posner/Yoo
threesome with John Bolton in the middle. Sexy.
