HackWatch: John Yoo Edition

Monday, January 5th, 2009

Per Jacob Sullum’s post at Hit & Run on the John Yoo/John Bolton piece in the New York Times, I think we have a new addition to our HackWatch feature.  Yoo, who under President Bush has argued that the president has the power to unilaterally withdraw from treaties, now wants the Senate to reassert its treaty power, because he fears the sorts of entanglements into which President-Elect Obama might get us enmeshed.

Yoo gets an 9 out of 10 on the somewhat-arbitrary Hackery Index.  The only ameliorating factor, here, is that Yoo’s hackery seems more issue-oriented than strictly party-oriented. That is, he isn’t explicitly arguing that Republican presidents should have more power than Democratic presidents.  Rather, he believes the president should have  plenary power to negate treaties pertaining issues broadly related national security, but wants the Senate to reassert itself on treaties related to domestic policy.  Of course, the issues where Yoo wants plenary executive power happen to be issues where he agrees with Republicans, and the issues where he wants more Senate control are those issues where he doesn’t trust Obama.  But Yoo does at least have a constitutional argument for making the distinction. It just happens to be a crappy one.

If you see an example of a pundit, politician, major blogger, or other Beltway creature who’s done a 180 on this or another issue, please send it to us, with links, and “HackWatch” in the subject line.

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12 Responses to “HackWatch: John Yoo Edition”

  1. #1 |  Jeff | 

    It was John Bolton, not Michael, though the Freudian slip was pretty awesome.

    /both no-talent ass clowns

  2. #2 |  Mister DNA | 

    Jeff,

    I get the feeling that the Two Bobs are probably John Bolton fans, as well.

  3. #3 |  SJE | 

    Radley, perhaps you should calibrate the Hackery Index, so that Hi 9 = Yoo. That is pretty Hack-tastic.

  4. #4 |  claude | 

    Whats it take to get a 10?

  5. #5 |  John Jenkins | 

    I hate to side with Yoo on anything, but I think that the constitutional argument that the president has the authority to abrogate all treaties is not that far-fetched (though I think it would apply to all treaties).

    By way of analogy, cabinet secretaries (like treaties) are subject to the approval of the Senate, and all of them serve at the pleasure of the president. Now, the treaty power requires approval of 2/3 of the Senate, so there is a difference that might justify different treatment, but given the plenary nature of the President’s power in international affairs, I would argue that the difference is not sufficient to require the President to acquiesce to treaties that he believes are no longer in the best interests of the nation.

    Of course, if a treaty is not self-executing and the congress has enacted legislation (whether signed by the president or effected after overriding a veto) giving effect to a treaty, then the president is without authority to disregard the law, and the power to abrogate treaties is meaningless.

  6. #6 |  Lior | 

    Since Yoo was at the forefront of the argument that the president’s “war-making” authority extends into the US, him suddenly seeing the light about the distinction between “foreign” and “domestic” is quite amusing.

  7. #7 |  Nando | 

    John Jenkins,

    As far as I know, every treaty ratified by the Senate becomes part of US law. Therefore, the President is bound by law to follow them and cannot, unilaterally, decide that the treaty is no longer valid. This must be done by the Senate and approved by the President, just the way that the treaty was ratified. It is part of our checks and balances and keeps both in check.

  8. #8 |  SJE | 

    Nando: Jenkins seems to be pushing the “plenary” executive theory that was orginally advanced by Yoo et al. Of course, this constitutional theory has been trashed, although Bush et al continue to act as if they are above the law.

  9. #9 |  John Jenkins | 

    @Nando: Some treaties are “self-executing,” while others require congress to enact statutes to give them effect. See Missouri v. Holland, 252 U.S. 416 (1920) and Medellín v. Texas, 552 U.S. ___ (2008). A treaty does not become part of domestic law when ratified by the Senate.

    @SJE: You are mistaken. I am referring to the president’s plenary authority to negotiate with other states on behalf of the United States, provided in Art. II, § 3 of the Constitution. The legislature has no formal role in that process, other than in appropriations and the Senate’s advice and consent role provided in Art. II, § 2. I don’t think anyone seriously disputes the President’s authority in that regard. See http://law.onecle.com/constitution/article-2/34-conduct-of-foreign-relations.html for a discussion. Even when operating in that arena, the President is limited by the Constitution and other laws of the United States.

  10. #10 |  John Jenkins | 

    Sorry, the last sentence of the first paragraph of the prior post should read A treaty does not *necessarily* become part of domestic law when ratified by the Senate.

  11. #11 |  jwh | 

    Claude,

    Obama will give you your 10 by April Fool’s Day…….guaranteed.

  12. #12 |  qbit | 

    well, john yoo also said that if the president says to torture children sexually, thats ok.

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