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.