John Yoo

John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford University Press, 2014).

Benghazi and the Constitution

With the creation of a special congressional committee to investigate the 2012 attack on the U.S. consulate in Benghazi, the three branches of government will soon head for a constitutional collision. Obama administration officials, past and present, will resist the call to testify. They will respond to congressional subpoenas by claiming executive privilege or asserting their right to avoid self-incrimination. To get answers to its questions, the committee may hold Obama officials in contempt. Under today’s misconceived system of judicial supremacy, the courts may decide the winner. If the original understanding of the Constitution prevailed, Congress would probably prevail. But investigations has become yet another matter where Washington, D.C.’s practices have strayed far from the Constitution.

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The Exceptional American Presidency

Rare is it to find an academic who tries to do justice to his university’s namesake. Imagine what Rockefeller, Carnegie, Stanford, and Vanderbilt, not to mention good old Harvard and Yale, would think about what goes on under their names.  But law professor Frank Buckley, at least, attempts to carry forth the torch of George Mason in his provocative essay, American Exceptionalism.

Mason was a prominent Virginian politician who might be thought of as a libertarian today, though the eighteenth century did not think in such terms.  His draft of Virginia’s first state constitution and its bill of rights, which declared that “all men are born equally free and independent,” made him famous in revolutionary America.  A delegate to the 1787 Philadelphia Convention, Mason refused to sign the Constitution and returned home “with a fixed disposition to prevent the adoption of the plan if possible.”  His pamphlet, “Objections to the Constitution,” published in October 1787, became one of the leading criticisms of the Constitution during the struggle over ratification.

Like Buckley, Mason feared that the Constitution would create a government that would begin as “a moderate aristocracy” and then became a monarchy or a “corrupt, tyrannical aristocracy.”  But unlike Buckley, it was not the Presidency that Mason feared most.  Rather, Mason believed that the Constitution’s threatened liberty by creating a Congress with broad powers, a Senate that violated the separation of powers, and no declaration of rights.  The only problem with the executive branch, he observed, was its lack of a “constitutional council” to advise the President, which would prevent him from becoming the “tool” of “minions and favorites” or of the Senate.  Mason criticized the Senate and Vice-President for “dangerously blending the executive and legislative powers.”

In other words, the ratification period’s greatest libertarian critic of the Constitution believed that the President should be more independent, not less.  Buckley shares Mason’s starting and ending points – that a defective Constitution threatens American liberty – but disagrees on the path.  The modern libertarian and noted law-and-economist instead believes that the Constitution’s fault rests in the Presidency.  Put briefly, Buckley believes that President enjoys so much more prestige and popular support than a prime minister that it he or she can expand executive power, escape accountability, and act unilaterally during periods of government deadlock.  Buckley supports his thesis by arguing that Freedom House data from 1972-2010 consistently show that parliamentary governments outperform presidential systems on the index of political liberty (while I could not find Buckley’s empirical study on his website, I don’t doubt that he is right).

Buckley’s argument comes as a surprise to me, and no doubt would have to Mason as well.  I take Mason’s argument to be that too much cooperation between the executive and legislative branches leads to less liberty.  Under a Westminster system of parliamentary government, nothing stands in the way of the will of the majority.  Pure democracy, it seems to me, can threaten freedom more than a republican democracy that divides power.  A parliamentary majority can reduce liberty as it likes as long as it can survive a no-confidence vote and make it to the next election.  Both Great Britain and the United States today may both win “free” ratings from Freedom House now, with the very highest 1 (out of 7, with 1 being the best and 7 the worst) scores for “political rights” and “civil liberties.”  But did the parliamentary system produce a similar level of freedom in pre-Thatcher Great Britain, with its government-controlled BBC television and radio stations, nationalized steel and coal industries, and regular labor strikes?  Without a separate executive branch wielding a veto, a legislature can not only change property rights or political liberty as it likes, but it can do so quickly.

The better libertarian course, it seems to me, is Mason’s. This idea, of course, was not unique to Mason.  “When the legislative and executive powers are united in the same person, or in the same body of magistrates,” Montesquieu famously wrote in The Spirit of the Laws, “there can be no liberty.”  Separating the executive and legislative power, and generally placing obstacles before the government’s ability to act, will better protect liberty by reducing the scope of public action.  A simple legislative majority cannot quickly reduce liberty, or even act at all, without the concurrence of an independent branch of government elected in a separate manner at a different time.  By internally hamstringing government, civil society will flourish in the absence of regulation.  And even when legislation passes, it will result from long deliberation and effort that is more likely to balance costs and benefits properly and protect minority rights.

It seems to me that this relationship between the separation of powers and liberty is borne out by American constitutional history.  There has never been a socialist or communist party in the United States (we can all agree that these parties would be the greatest threat to liberty), unlike many of the western nations that might temporarily outscore us on the Freedom House index.  Louis Hartz argued that these parties failed here but not in Europe, even though the West went through industrialization at about the same time, because the Constitution’s separation of powers made it too difficult for radical social movements to change the American economic and political systems instantly.  Whatever its success or failures in other countries, the American presidential system, by which Buckley must also mean the American separation of powers, has succeeded in the United States in preventing the extreme economic and political radicalism that has so beset and almost ruined countries in the rest of the world.

Take the opposite case too. Suppose that the Framers’ Constitution initially created a period of great political and economic liberty.  Today, it is fair to say that the great growth of Congress’s regulatory powers, its delegation to independent agencies, and sweeping income redistribution programs present the greatest attack on libertarian values.  These changes in the Constitution did not occur during periods of strong conflict between an independent President and Congress.  Rather, they arose during periods when the United States most closely approximated the political merger of the executive and legislative that characterizes parliamentary democracies.  Franklin Roosevelt not only won the Presidency, his party won two-thirds majorities in both the House and Senate in the 1936 elections.  Lyndon Johnson won election in 1964 with similar majorities at his back.  Both Presidents proceeded to cooperate with legislatures because political parties, as President Thomas Jefferson first discovered and as Woodrow Wilson urged in his scholarly work, can overcome the natural antagonism built into the separation of powers.  What you have when Presidents and large congressional majorities come from the same political parties is the parliamentary system, and it is that system – when it occurs on U.S. soil – that has bred the worst outcomes for liberty.

As a side note, these examples from American constitutional history raise doubts about the use of statistics to measure political phenomena, such as the Freedom House surveys. We cannot fault Buckley for relying on them, because there is scarcely anything to use when measuring a society’s level of freedom.  But there are problems of measurement, both marginally and over time.  For example, is there any real difference today between the levels of political and civil freedom in the United States, Great Britain, Canada, Switzerland, the EU nations, and so on, upon which claims of constitutional significance should be made?  I would guess not, and if anything, a libertarian might well say he or she would vastly prefer to live in the United States than many of these other countries, with their hate speech codes and multicultural political correctness, redistribution of income and high tax rates, and socialist economic policies.  Libertarians should believe in letting the markets decide – where do people with the freedom to travel go in the world?  I would bet that the answer is still the United States and not the European parliamentary democracies.

Measuring only the last thirty years also leaves out huge changes in political and civil liberty in these countries when compared to the United States.  For the last 100 years and more, the United States has wallowed imperfectly yet complacently in its presidential system.  During that same period of time, the nations of Europe and East Asia have swung wildly between monarchy, democracy, fascism, communism, and socialism.  They have engaged in wars that have killed tens of millions of Europeans and Asians and have imposed ruinous economic systems that have impoverished many more.  Indeed, if it were not for the United States and its awkward separation of powers, many of these countries would be scoring a 7 out of 7 on the Freedom House index right now.  If we averaged out the level of political and civil liberty for these countries over the last 100 years, I suspect that the U.S. would come out light-years ahead of its parliamentary competitors.

The scores might also ignore the vastly different geopolitical roles played by the United States and the other parliamentary democracies.  As I have argued in some of my work on global stability, the United States has taken upon itself to provide the public goods of security and free trade.  Maintaining the military forces that stopped fascism and communism and now currently maintain peace among the great powers comes at a cost to the United States.  Keeping open the sea and air lanes of global commerce and even reducing its own barriers to enhance international trade also comes at a cost.  The parliamentary democracies of Europe, East Asia, and Latin America all benefit from the U.S.’s security and free trade areas without having to contribute much, if anything, to the expenses.  Their savings may well allow them to afford higher levels of liberty while the United States may have to accept a marginally lower level to guarantee it.  Libertarians, again, should prefer this world to the alternative.

This is not to say that a presidential system of constitutional government will work for everyone, everywhere.  As those familiar with the literature on political development know, Buckley is surely correct in describing the fate of presidential systems in Latin America and Asia.  Presidencies there can lend themselves to authoritarianism because of the dynamic that Buckley describes: the separation of power can induce government paralysis when immediate economic and social reform is needed; the people demand change, and executives take advantage of the instability to seize power.  These presidents then have something like popular legitimacy behind them, at least at first, before they turn their rule into a dictatorship – a sort of fall of the Roman Republic for the twenty-first century.

But, as Buckley reminds us in the title to his essay, America is Exceptional.  For all of its good or ills when transplanted abroad, the presidential system has never produced this cycle of instability and authoritarianism in the United States.  This record should not convince us to abandon the American Presidency, whatever the disagreements are that we may have with a current office-holder.  Both conservatives and libertarians should view any proposals for radical reform in government with a jaundiced eye.  Rather, we should ask what is the exceptional in America that has allowed a system to succeed here that fails elsewhere.

More Responses

Does America Need a New ‘Science of Politics’?

Professor Buckley argues in “American Exceptionalism” that presidents cause countries with the office to realize less freedom on average than countries with prime ministers. Below I explain why neither Buckley’s theoretical claims nor the empirical evidence he provides persuades me that his conclusion is warranted. Before digging into his argument, however, I do want to appreciate…

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American Exceptionalism: Response

 We are all patriots first, philosophers second. And that is just as it should be. Still, the patriotic American must admit that his country’s constitution was not made for export, and that parliamentary countries enjoy more political freedom. That’s not to say that America is anything other than free. Still, as he surveys the shipwreck…

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John Yoo responds to “Taming International Law with Presidential Supremacy”

Mr. Carpenter’s review makes some excellent points, but I want to focus here on his two points of criticism of Taming Globalization.  First, he says that the book is lacking because it spends too little time on the Bricker Amendment, which he suggests was not the initiative of southerners interested in protecting segregation from international human rights treaties.  Second, he argues that federal courts, rather than the President,  should have the primary say in interpreting customary international law (and he further implies that this conclusion in Taming Globalization is the product of my pro-executive views while serving in the Bush administration).

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Debating Sovereignty: Globalization, International Law, and the United States Constitution

Westphalia.2

Globalization is transforming American society. As never before, the U.S. economy depends on international trade, the free flow of capital, and integration into the world financial system. International events affect domestic markets and institutions more than ever. Advances in communications, transportation, and the Internet have brought great benefits to the United States.  But the September 11, 2001 attacks also revealed globalization’s dark side. Terrorism, refugee flows, pollution, drug smuggling, and crime depend on the same channels of globalization as the world economy.

These economic, technological, and social changes have occurred because of the acceleration of communication, transportation, and information systems across national borders. Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in goods and services; (3) the easy movement of capital and labor across national borders; (4) the rise of major transnational networks, such as international drug cartels, international crime-fighting regimes, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.

These profound changes present challenges to the American constitutional order because they give rise to international law and institutions that demand the transfer of sovereignty in response.  To limit carbon emissions, proposed follow-ons to the Kyoto accords seek to regulate energy use throughout the world. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry.  These multilateral treaty regimes seek to regulate private activity under the control of independent sovereign nations. They ask states to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies, such as the United Nations, the International Court of Justice, or the World Trade Organization, that operate along undemocratic lines and remain unaccountable to any nation.

These efforts at global governance create tension with American constitutional controls on state power. Recent examples abound. To what extent do international court judgments have force in American law, preempting valid judgments by domestic courts? Can the President and the Senate make an international treaty that binds the United States to either legalize or criminalize abortion, or are issues of family law reserved to the states? Should international and foreign laws be used to interpret the U.S. Constitution? May Congress and the President delegate federal authority to international organizations to regulate domestic conduct, for instance, over industrial production or carbon emissions?  Must American courts enforce the decisions of international courts banning the death penalty or freeing international terrorists?

Many scholars of international law argue that globalization’s demands justify abnormal powers for the federal government.  Treaties on global warming or the environment, for example, should have a reach beyond the Constitution’s normal limits on the powers of Congress.  International institutions like the WTO or the ICJ should enjoy the power to issue direct orders in the U.S. legal system, overcoming contrary policies at the state or even federal levels.  States should have no voice in responding to globalization.  Courts, as the least democratic branch, should play a primary role in incorporating global governance at home without the intervention of the elected branches of government.

These efforts aim at nothing less than the erosion of American national sovereignty. Anne-Marie Slaughter, a former Princeton dean and Obama State Department Official, argues that networks of foreign and international officials and institutions will develop independent, common legal standards that will be imposed on nations.  According to her, “where the defining features of the international system are connection rather than separation, interaction rather than isolation, and institutions rather than free space, sovereignty as autonomy makes no sense.” Or, as Harvard scholars Abram and Antonia Chayes have written a “new sovereignty” has emerged where the international order is governed not by independent nation-states but by a “tightly woven fabric of international agreements, organizations, and institutions that shape their relations with one another and penetrate deeply into their internal economics and politics.”

These responses to globalization pose the most direct challenges to the fundamental principle underlying the system of government in the United States: popular sovereignty. Unlike other nations, which locate ultimate power in a nation, in a monarch, or in a government, the U.S. Constitution locates sovereignty in the People of the United States.   The various institutions of the U.S. government are merely agents of the People, whose powers are delegated exclusively through the U.S. Constitution. The American people hardwired two principles into the U.S. Constitution’s structure: the separation of powers and federalism.

Popular sovereignty reflects a basic American commitment to govern by exclusively constitutional mechanisms, such as federalism and separation of powers, both of which create the political institutions through which the people can exercise power.  These constitutional structures may prove burdensome or inefficient, but they enhance accountability and transparency in government—important features of constitutional democracy. Globalization poses real challenges to American constitutional law, but the answer is not, as some would have it, abandoning the core principle of the American political system.  Popular sovereignty is to be ignored at one’s peril.

Grasping the Constitution’s application to the issues raised by globalization depends more on the basic structures of government set out in the Constitution’s text, the traditions of American political practice, and even judicial precedents. The Framers’ most important decision was to maintain a distinctive structure for the exercise of governmental power at home: lawmaking through congressional bicameralism followed by presentment to the President. At the same time, the Framers believed that foreign affairs demanded a more flexible process that relied more on presidential leadership, given its functional advantages in acting with speed, decision, and dispatch. We believe that the best way to approach globalization is to tame it by subjecting its domestic effects to the same separation-of-powers and federalism rules that apply to any other law. But for conduct and events abroad, we believe that the Constitution largely frees the government from the straitjacket of the domestic rules of the game, and directs authority to the branch most functionally suited to such quick and momentous decisions: the executive.

Three constitutional doctrines can avoid globalization’s problems while still permitting the United States to accrue the benefits of international cooperation. First, treaties should be presumed to be non-self-executing: in other words, treaties do not take effect as enforceable domestic law without an intervening Act of Congress.  Second, the President must possess the primary authority power to terminate international obligations and to interpret international law.  Third, states must assume a leading role in the implementation of international law and agreements, especially in areas (such as family and property law) that have remained traditionally in their control. All of these mechanisms shift basic decisions between the pressures of globalization and the goals of a democratic constitutional government to the executive and legislative branches of the federal and state governments.

These doctrines rest on both “functional” and “formal” grounds. Such solutions are supported not only by the text and history of the Constitution and Supreme Court precedent, but also by their functional consequences. While all three doctrines have strong historical and precedential foundations in the U.S. constitutional tradition, one can reasonably disagree about them.  Rather than try to establish these doctrines as constitutional requirements, these doctrines should be adopted because they are prudent. To require the political branches of government to fulfill the mandates of international law simply makes sense as a matter of consequences.  They prevent international treaties and organizations from creating a loophole in the American constitutional system that would grow only bigger as globalization advances apace.

From a normative perspective, the legislative and executive branches of the federal and state governments are the institutions best positioned to reconcile the pressures of globalization with the U.S. legal system. These institutions are able to release the pressures of globalization on the American constitutional system because they enjoy the greatest political accountability and functional expertise in the conduct of international relations (in the case of the executive branch) or local public policy (in the case of the state governments).  Conversely, we do not think that the American judiciary should play the kind of autonomous role that many legal academics and policy analysts wish for. Although we believe courts should maintain an independent place, we also believe courts should maintain their traditional deference to the executive and the legislative branches in affairs of state, in political questions, in foreign relations, and in war.

While relatively young, the new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law.

Like nationalization, globalization will inevitably call on us to reconsider the same fundamental questions: the proper scope of the federal government’s regulatory power; the balance of authority between the President and Congress; and the appropriate role of the courts. We may only belatedly realize the consequences of economic and social transformation on constitutional doctrine. The inability of international organizations to provide legitimacy commensurate with the scope of their delegated authority—when combined with the serious strains that their delegations place on the federal government’s own legitimacy—weigh strongly in favor of enforcing the Constitution’s formal processes for exercising public power. A formalist approach would confer the greatest possible level of political and popular acceptance because any consent to international law and institutions would then occur with the full extent of the Constitution’s legitimating force. Such an approach might require rejecting some delegations, but it would at least ensure the full measure of domestic political legitimacy to support those that survive.

Any fundamental change in the Constitution’s structures to accommodate globalization would be a terrible mistake. Putting aside their historical pedigrees, we think that federalism and the separation of powers today guarantee a number of normative benefits for the United States. Federalism, for example, creates policy competition among states; citizens can maximize their preferences by choosing to live in states with policies that they prefer. Federalism encourages innovation in government policy—states serve as fifty “laboratories of democracy” which conduct experiments at solving social problems—that will lead to more effective national solutions. Federalism allows for the more effective provision of public goods—or certain benefits, such as schools, roads, regional transportation systems, parks, and law enforcement—that affect smaller geographic units rather than the nation as a whole. Federalism has significant advantages above and beyond its historical presence in the Constitution.

The separation of powers also provides significant benefits beyond the happy accident of its inclusion in the Constitution. Dividing legislative power between two houses of Congress and the President demands that a high level of consensus exist before the government exercises its powers. As the level of consensus increases, the law is more likely to express the will of the majority and to represent the better judgment on the right trade-offs for society. Multiple hurdles for the legislative process reduce the chances that special interest groups will use domestic regulation to capture benefits for themselves at the public’s expense. The separation of powers encourages the vigorous exercise of national powers at the right moment. The President can lead the nation into war, protect the national security, or conduct foreign affairs with “decision, activity, secrecy, and dispatch,” in the words of Alexander Hamilton in Federalist No. 70. By openly allocating power to the branch best suited for its exercise, the separation of powers encourages accountability to the electorate. The separation of powers provides a safeguard for liberty by making it difficult for any one party or group to take over the controls of government altogether, and by giving each of the branches the means to frustrate the plans of the others.

America’s decentralized government, both between the national and state governments and between the executive, legislative, and judicial branches, discourages a rush into radical reforms or sweeping alterations of the basic rules of the political system. The American Constitution may allow grievous injustices—such as slavery and segregation—to persist for long periods of time, but it also creates a risk-averse political system that prevents the United States from swinging wildly in one direction or another. Altering federalism and the separation of powers to allow for greater international cooperation may seem desirable now, but the long-term benefits may not exceed the costs, if those costs are likely to weaken the Constitution’s governing principles in domestic affairs. The American system can accommodate the demands of globalization within existing doctrines of the separation of powers and federalism, but with some difficulty. That is worth the price to preserve the constitutional principles that have served the nation so well, for so long.

Responses

Bolstering American Sovereignty with Treaties

Concerns about sovereignty in an age of globalization are common, and often take a defensive posture that seeks to limit the reach of international law.   But sovereignty and international law are not incompatible.  Broadly understood, sovereignty may be defined as the advancement of the national interest, and the reality of globalization requires the United States…

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Facilitating not Hindering American Compliance with International Law

State sovereignty is the fundamental building block of the international legal system.  International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty.  At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so. Today’s international legal…

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Taming Globalization: A Conversation with John Yoo

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In this podcast, John Yoo discusses his new book, co-authored with Julian Ku, Taming Globalization: International Law, the U.S. Constitution, and the New World Order. Yoo focuses attention on the proliferating sources of international law in treaties, conventions, agreements, and customary international law that transnationalists believe should be more easily incorporated into America’s constitutional and domestic law. Yoo’s arguments, however, are not reactionary. After highlighting the constitutional and philosophical arguments made by transnationalists on behalf of this posture, Yoo discusses how the Constitution’s structure of separation of powers and federalism can be utilized in aiding America in the growing international legal environment by ensuring that the fundamental doctrines of the Constitution guide the process.