Yoo to Conservatives: Reverse Course

The latest issue of the National Review has an article by Berkeley law prof John Yoo that invites serious thought and discussion—very serious thought. Here’s the gist:

In the Reagan era, conservatives stood for a “unitary executive” and White House control over administrative agencies (administered through OMB’s OIRA); and for judicial deference to administrative agencies (Chevron deference became near-totemic). Congress was the enemy—the engine of government run amok. Conservatives, John Yoo says, should now “mov[e] beyond” those commitments. What he’s actually urging is a broad-scale reversal: Ditch judicial deference. Re-examine INS v. Chadha, which declared the legislative veto unconstitutional (and which conservatives at the time celebrated as a rousing victory). Re-embrace Lochner—the epitome of “the idea of natural rights that actually informed the Framing.” And, get the institutional landscape right:

Conservatives have correctly shared the Founders’ fear of excessive lawmaking, but they have focused on the wrong source: Congress. They should shift their aim to the administrative agencies, which are the greatest threat to our liberties today.

In plaintext (and John Yoo makes it very plain): apart from opposition to made-up due process or equal protection rights, just about everything Antonin Scalia (let alone the late Bob Bork) taught us was, or is now, wrong. All that, from a highly credential conservative, FedSoc hero, and diehard defender of presidential power (at least in foreign affairs)

I’m with Professor Yoo on most of the issues. And I, like, totally support his wake-up call. However (and I’m sure John would agree), an alarm bell is not a program, only a call to develop such a program. That’ll take very considerable effort, comparable to the energy conservatives invested in creating the program they’re now being asked to reconstruct. Start with a few down-to-earth difficulties:

  • House Republicans have championed the REINS Act, which would require congressional approval of “major” agency regulations. It’s an endrun around Chadha; it’s constitutional; and it fits John Yoo’s agenda—up to a point: while increasing congressional control over agencies, it would wipe out judicial control over major agency regs. Technically, the act preserves APA review. But is a court really going to say that Congress mis-interpreted its own statute, or that its approval was “arbitrary and capricious”? (It may well have been; but then it’s the business of Congress to be arbitrary and capricious.) Between congressional and judicial review, which is it to be?
  • As I write and you read, EPA is constructing a global warming regime of unprecedented proportions—not because the Supreme Court deferred to the agency but because it didn’t and told EPA, more or less, that it had to regulate greenhouse gases. And the agency that’s going to town on that ruling (Massachusetts v. EPA) isn’t some headless Fourth Branch outfit: it operates at the feet and the commands of the President. Are we really against judicial deference, and for a “unitary” executive and presidential government?
  • Much government lawlessness has to do, not with excessive regulation but with a failure to enforce laws that are on the books: immigration law, NCLB, the Controlled Substances Act, Obamacare. What’s the remedy—mandamus actions? More to the point, should there even be a remedy, judicial or otherwise? Come 2017, should President Jeb Bush restore the rule of law by enforcing, at long last, the requirements of Obamacare, the Dodd Frank Act, NCLB, etc.? Or, considering those laws, would it be better if the President’s duty—the “faithful execution” of the laws—were understood to encompass the power to shirk?

The questions may well have answers. I just don’t know what they are.

John Yoo’s plea for rethinking is obviously and explicitly prompted by situational, political concerns: the old conservative program is no match for the Obama administration. Most constitutional thought is prompted by such concerns. But a constitutional program can’t be purely tactical—not because you want to be high-minded, but because you must be strategic. First, a constitutional program will take a lot of time to implement; and over that time, political alignments will shift. Thus, you can commit to a program only if it promises to stop your enemies and, moreover, can’t do much harm in their hands in the foreseeable future. Second, neither federal courts nor for that matter the public will pay much heed to purely tactical maneuvers: any credible program will have to look plausibly constitutional.

The conservative legal program of the 1980s illustrates the dynamics. Of course, it was political: “Deference” was a way of stopping Skelly Wright’s and David Bazelon’s D.C. Circuit. “Originalism” was designed to stop William Brennan. And the “unitary executive” was an artful way of saying that Ronald Reagan meant to bring the regulatory enthusiasms of the 1970s to an end. However, the program was not purely short-term and situational. It was difficult then to imagine political circumstances under which it would not be conducive to limited-government ends. And a great deal of intellectual and organizational energy went into the program both before and after its critical period. The judges who turned the ho-hum Chevron decision into a foundational canon (then-Judge Scalia, Ken Starr, et al.) had thought about administrative law for a very long time; they were ready. Originalism, which is supposed to hold all of this together, did not originate in the academy but in, of all places, the Department of Justice—which, one can safely say, was less interested in hermeneutic theory than in Roe v. Wade. However, conservatives invested enormous intellectual effort in transforming originalism into a winning constitutional program, and equal organizational effort in making it stick.

John Yoo thinks, and says, that that program has failed. If he’s right, the task at hand isn’t to overturn this, that, or the other case or doctrine; it’s to re-think the foundations and to unite conservatives behind some other credible program that promises to hold up.

What a wonderful world that would be.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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  1. Richard S says

    A related point. In light of the problem of three felonies a day, is it time to rethink the jury. Is it time to reconsider the jury’s right to rule on law and fact, as was originally the case. The jury, after all, was designed to enforce community standards, no? In today’s context, the jury could serve as protection against arbitrary enforcement. And it would also pick up another old function of the jury system, one that the founders discussed–educating the citizenry.

    • John Ashman says

      I think using the same standards for convicting a criminal, that the 10th Amendment is in force until proven non-applicable without a reasonable doubt, you would see a lot of 9-0 votes of “unconstitutional” versus the SCOTUS 5/4 “constitutional” absurdity.

      Because if 4 “experts” are saying that a law is unconstitutional, then it’s obviously flawed and simply doesn’t pass the smell test. SCOTUS isn’t supposed to be some pure democracy voting on shades of gray. If 9 people can’t agree that a law is Constitutional, it’s not.

  2. Richard S says

    P.S. How about a sunset provision. Write statutes that only give rule making power to the bureaucracy for 5 years, or perhaps a Biblical 7?

    • John Ashman says

      An amendment stating that ALL laws must have an expiration date, not to exceed 10 years. It would dramatically reduce the time Congress has to make new laws, as they will constantly need to revise and pass old ones, spending much time debating in the process, and with procedural nonsense.

        • John Ashman says

          Well, I think corporations should be limited to those activities which are impossible to achieve with small, private business, such as building cars or a wireless telecommunications system. This is how it used to be. You got a limited corporate grant to achieve a particular goal and get your money back with limited risk because of the benefit to society.

          Incorporation is essentially fascist in nature, creating unequal protections, ostensibly for acts that won’t compete with non-incorpoated business. Obviously, this has been entirely misused and abused, with the purpose being solely to make money with an unequal advantage.

          • Epstein's Mother says

            Corporations should be limited to those activities which are impossible to achieve with small, private business?

            First, you realize, right, that a “corporation” is just a legal designation used for liability and tax purposes?

            Second, didn’t Ronald Coase get the Nobel for showing that where corporations exist they exist precisely because they can do whatever they are doing better than an individual or small group of individuals?

  3. John Ashman says

    The problem here is that the war IS being wage politically, and at odds with itself. The Republicans want great executive freedom when they have a Republican President and want little when they do not. This is completely ineffective.

    Republicans want originalism when it comes to gun rights and abortion, but certainly NOT when it comes to immigration, drug use, gay marriage.

    They essentially propose ObamaCare, then howl about its unconstitutionality 20 years later.

    The problem is a lack of education and unanimity of understanding, a lack of will to create a coherent message.

    There is a strategy that could be employed near term which could yield quite a bit of chaos, if not direct progress – Amendment Baiting.

    Amendment Baiting is demanding an amendment for specific things the government does now that are unconstitutional, yet have broad support (at first, at least). For instance, propose an amendment for NASA. Well, okay, there will be much howling about the lack of need, but a disciplined Republican team would simply respond that “yes, it’s necessary, it hasn’t been delegated, we all love the program, so let’s make it honest”. Then the Air Force. Again, same howls. Same response. If you don’t vote for these amendments, you, in essence, don’t like these programs and want to risk their future. No one wants that.

    Moving on to…..things like Welfare and Social Security. Education. Health Care. Force this both into the lap of Democrats, but create a huge top of mind awareness about constitutionality and the current state of affairs. People will want to understand what the HELL is going on, and might even bother to look up the 10th Amendment.

    Justices, most notably SCJs, will suddenly be put in the awkward position of having Congress seek amendments for programs they’ve already rubber stamped and refuse to review due to inapplicable legal concepts like “judicial restraint” and “precedence”.

    Of course, one might through in an amendment to the Commerce Clause to force a discussion on what the ACTUAL limits of this Clause are, and how to delineate those roles so that one doesn’t need to wish in new words to make it work. Should the new Commerce Clause include manufacturing? Employment practices? Safety practices? In state commerce? Commerce by American companies in other countries? Pollution? Retirement programs? Health programs? How much Federal power will 3/4s of the state accept when given the actual vote?

    Maybe Democrats will return fire, demanding an amendment for drug and immigration powers. Somewhat doubtful, since a Democrat is someone who, regardless of whether he likes government infringement of rights, is of no doubt that the government has the power to do so. But, some semi-principled Democrats could appear, if only to point out the hypocrisy of Republicans ignoring many of their own personal favorite ways to break the Constitution.

  4. Ron Johnson says

    Professor Greve doesn’t like this answer, but the problem is that there is a ruling political class dominated by families in the politics business in both parties, and these families have more in common with each other than with the rest of us; witness the Republican leadership backing a Syrian strike in the face of 80% disapproval. There is nothing wrong with the original approach, rather few in the ruling class will pay it any more than lip service and then only as long as it serves their purpose. How many Republican officials actually tried to limit government in any meaningful way when they are in power from 2000-2008?

  5. says

    Coming up with a Constitutional doctrine that cannot be misused for partisan advantage is like inventing a weapon that cannot be used to commit crimes, or a narcotic that cannot be abused. The fact is that human beings are tool users; a key characteristic of human cognition is to figure out how to exploit things to suit individual needs, interests and desires. Dumb people have a knack for ignoring this fact when they let hubris get the better of them and think that they have found the answer to some annoyance in human life.

    There are some foundational axioms that apply to Professor Yoo’s view:

    1.) The people who are content to exploit and profit from a policy or program are almost universally smarter than the people who come up with the policy or program.

    2.) The temptation for unprincipled people to exploit loopholes and unnoticed defects in political doctrines is as great as the tendency for principled people to act in good faith.

    3.) No policy or doctrine does not have a flip side that will vex proponents of those doctrines and policies.

    4.) Hopeless repression always results from appeals to hopeful repression.

    5.) The more that partisans appeal to a particular doctrine as fundamental, or as the philosophical basis for some scheme or other , the more that such doctrine will acquire exceptions, caveats, special pleaders, and mountebanks.

    6.) Policy is like a snowflake: its form depends on the conditions that it encounters as it is formed. Events, not philosophical purity determine the real world effect of academic theories on the lives of real people. It is not airy idealism or sheltered theorizing, but rather vigilance and resilience that sees a people through the threats, calamities, blunders and malevolence that accompany human life.

  6. John Ashman says

    Also, to be honest, I pretty much discount anything Yoo says, given his neo-con legal agenda of rationalizing the NSA and the end of privacy.

  7. Ancaeus says

    Prof. Greve’s post is a case-book example of hypocrisy.

    I am a liberal. I believe that the Supreme Court should be strong and the other two branches weak. The President gets his power from his bully pulpit — his ability to lead, if he can. That, in turn, depends on his moral stature which must be assiduously cultivated, or it will wither. The Congress gets its power from its control of the details, and its ability to specify spending and taxes. It loses that power when it fails to legislate, or delegates rulemaking to the executive.

    In my view the current Supreme Court has completely lost its way. It *should* be seeking justice and thereby *defining* justice for the modern age. Instead it has restricted itself to reading the Constitutional tea leaves. And the hypocrisy on the court is so thick you can cut it with a knife. Anyone who doubts this can just read Bush v. Gore, and then weep.

    As a liberal, it is not to my advantage to have a strong court, dominated as it is by conservatives. Yet, I persist in my opinion because I am not a hypocrite (at least, not in this).

    • John Ashman says

      But that’s not the government we have, nor is it something the courts really want to do, micromanaging government based on the outcomes of policy. It is something they, at times, feel they MUST do because they are caught between two wrongs, a societal one and a legislative one and they have essentially been forced to handle it.

      I would say that, as a liberal, it’s not in your advantage to have a Constitution at all, and simply allow the masses to dominate the individual with no interference.

      Also, there is perhaps one strong judicial conservative on the court, Justice Thomas. The rest are judicial “conservative light” or quite liberal. By nature, ALL justices should be judicially conservative, with respect to the Constitution, not reading the socialist tea leaves and simply doing what uninformed masses have been told they want, at the expensive of the individual and the rule of law.

  8. Timb says

    Soooo, when conservatives control the Executive branch, John Yoo (and the sort of “libertarians” who support a torture-supporting sort like him) believe in the primacy of the Executive.

    However, when the rump of this movement cannot change to match electoral reality and instead faces recureent national political defeats, it turns to a gerrymandered House and declares Chevron deference, etc to be antithetical to conservative/”libertarian” “values”?

    It is so nice to see a final measure of consistency from the Right: when they control the White House, the Executive uber alles. When they cannot control the Executive, Congress über alles.

    • Epstein's Mother says

      Since when did John Yoo or anyone under the Bush Administration become a “libertarian” (even with quotes)?

      Libertarian isn’t a synonym for “someone on the right I don’t like.”

  9. Epstein's Mother says

    Yoo is purposefully ignoring two points. The first is that much recent legislation touching on regulatory agencies dictate, in considerable detail, what regulation the agencies are supposed to pass. Take Dodd-Frank, for instance, and it’s hundreds of pages of detail on disclosures and restrictions, often on things having nothing to do with the financial system (such as tin mined from Africa). This undermines Yoo’s point.

    It also highlights the other issue that Yoo is ignoring — there is a reason we don’t have Congress dictate this minutia. When they do, it’s a terrible mess.

    But both those points are almost besides the point when we get to Yoo’s support for the unitary executive concept. What Yoo is complaining about isn’t the exercise of executive power by administrative agencies, but legislative power. Yet that was precisely the power that the unitary executive concept seeks to aggrandize. It’s hard not to conclude that Yoo is fine with administrative agencies when someone he supports is in the White House (more than fine — he wants these agencies even more powerful); but the moment someone else is in office, they are a problem.

    That’s not a principled objection.

    • Timb says

      Didn’t say John Yoo was a libertarian. Said “John Yoo (and the sort of libertarians who…” Still, I appreciate the critique of the substance of my point

    • John Ashman says

      …….”First, you realize, right, that a “corporation” is just a legal designation used for liability and tax purposes?”

      Why should they have unique legal designations, liabilities and tax structures that give them and investors advantage over small business? A: only when when/if there is great societal benefit or no other way of achieving that which has not been done.

      ……….Second, didn’t Ronald Coase get the Nobel for showing that where corporations exist they exist precisely because they can do whatever they are doing better than an individual or small group of individuals?”

      Don’t think that’s why he got it, but aside from that, Obama got a Nobel, as did Yassir Arafat. Finally, simple reality proves your point to be untrue.


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