[Marxism] Even Bush's torture lawyer is scared of Bush

Louis Proyect lnp3 at panix.com
Mon Feb 6 12:46:32 MST 2017


NY Times Op-Ed, Feb. 6 2017
Executive Power Run Amok
By JOHN YOO

Berkeley, Calif. — Faced with President Trump’s executive orders 
suspending immigration from several Muslim nations and ordering the 
building of a border wall, and his threats to terminate the North 
American Free Trade Agreement, even Alexander Hamilton, our nation’s 
most ardent proponent of executive power, would be worried by now.

Article II of the Constitution vests the president with “the executive 
power,” but does not define it. Most of the Constitution instead limits 
that power, as with the president’s duty “to take care that the laws are 
faithfully executed,” or divides that power with Congress, as with 
making treaties or appointing Supreme Court justices.

Hamilton argued that good government and “energy in the executive” went 
hand in hand. In The Federalist No. 70, he wrote that the framers, to 
encourage “decision, activity, secrecy and dispatch,” entrusted the 
executive power in a unified branch headed by a single person, the 
president.

Many of Hamilton’s intellectual admirers today endorse the theory of the 
unitary executive, which holds that the Constitution grants the 
president all of the remaining executive powers that existed at the time 
of the founding. These include the powers to conduct foreign affairs, 
protect the national security, interpret and execute the law and manage 
all lower-level federal officers.

As an official in the Justice Department, I followed in Hamilton’s 
footsteps, advising that President George W. Bush could take vigorous, 
perhaps extreme, measures to protect the nation after the Sept. 11 
attacks, including invading Afghanistan, opening the Guantánamo 
detention center and conducting military trials and enhanced 
interrogation of terrorist leaders. Likewise, I supported President 
Barack Obama when he drew on this source of constitutional power for 
drone attacks and foreign electronic surveillance.

During the campaign, Mr. Trump gave little sign that he understood the 
constitutional roles of the three branches, as when he promised to 
appoint justices to the Supreme Court who would investigate Hillary 
Clinton. (Judge Neil M. Gorsuch will not see this as part of his job 
description.) In his Inaugural Address, Mr. Trump did not acknowledge 
that his highest responsibility, as demanded by his oath of office, is 
to “preserve, protect and defend the Constitution.” Instead, he declared 
his duty to represent the wishes of the people and end “American 
carnage,” seemingly without any constitutional restraint.

While my robust vision of the presidency supports some of Mr. Trump’s 
early executive acts — presidents have the power to terminate 
international agreements like the Trans-Pacific Partnership, for example 
— others are more dubious. Take his order to build a wall along the 
border with Mexico, and his suggestion that he will tax Mexican imports 
or currency transfers to pay for it. The president has no constitutional 
authority over border control, which the Supreme Court has long found 
rests in the hands of Congress. Under Article I of the Constitution, 
only Congress can fund the construction of a wall, a fence or even a 
walking path along the border. And the president cannot slap a tax or 
tariff on Mexican imports without Congress.

Nor can Mr. Trump pull the United States out of Nafta, because Congress 
made the deal with Mexico and Canada by statute. Presidents have no 
authority to cancel tariff and trade laws unilaterally.

Immigration has driven Mr. Trump even deeper into the constitutional 
thickets. Even though his executive order halting immigration from seven 
Muslim nations makes for bad policy, I believe it falls within the law. 
But after the order was issued, his adviser Rudolph Giuliani disclosed 
that Mr. Trump had initially asked for “a Muslim ban,” which would most 
likely violate the Constitution’s protection for freedom of religion or 
its prohibition on the state establishment of religion, or both — no 
mean feat. Had Mr. Trump taken advantage of the resources of the 
executive branch as a whole, not just a few White House advisers, he 
would not have rushed out an ill-conceived policy made vulnerable to 
judicial challenge.

Mr. Trump’s firing of the acting attorney general, Sally Yates, for her 
stated intention not to defend his immigration policy, also raises 
concerns. Even though the constitutional text is silent on the issue, 
long historical practice and Supreme Court precedent have recognized a 
presidential power of removal. Mr. Trump was thus on solid footing, 
because attorneys general have a duty to defend laws and executive 
orders, so long as they have a plausible legal grounding. But the White 
House undermined its valid use of the removal power by accusing Ms. 
Yates of being “weak on borders and very weak on illegal immigration.” 
Such irrelevant ad hominem accusations suggest a misconception of the 
president’s authority of removal.

A successful president need not have a degree in constitutional law. But 
he should understand the Constitution’s grant of executive power. He 
should share Hamilton’s vision of an energetic president leading the 
executive branch in a unified direction, rather than viewing the 
government as the enemy. He should realize that the Constitution 
channels the president toward protecting the nation from foreign 
threats, while cooperating with Congress on matters at home.

Otherwise, our new president will spend his days overreacting to the 
latest events, dissipating his political capital and haphazardly wasting 
the executive’s powers.

John Yoo, a law professor at the University of California at Berkeley 
and a scholar at the American Enterprise Institute, is the author of 
“Crisis and Command: A History of Executive Power From George Washington 
to George W. Bush.”



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