Yoo: Presidents Are Defined by Interpretation of Executive Authority

March 23, 2010

The best presidents in U.S. history interpreted their executive powers broadly during times of national crisis, a legal scholar and controversial former Justice Department official said Friday at an event co-sponsored by the Law School’s Federalist Society.

John C. Yoo, a law professor at U.C. Berkeley Law School, spoke about his recent book, “Crisis and Command: The History of Executive Power From George Washington to George W. Bush.” 

From 2001-03, Yoo was a deputy assistant attorney general in the Office of Legal Counsel at the Justice Department, where he authored controversial legal opinions endorsing the president’s authority to sanction the use of enhanced interrogation techniques, which critics have decried as torture.

Protestors gathered outside Minor Hall on the main UVA Grounds during the talk, and despite calls for civility from event organizers, critics interrupted the lecture several times.

Yoo said the idea for his book grew from the surprising results of a survey conducted by the Wall Street Journal and the Federalist Society, in which a host of academics ranked the country’s presidents from best to worst.

“These poll ratings are quite at odds with who regular Americans think of as being great,” he said.

Presidents George Washington, Thomas Jefferson and Franklin Roosevelt held the top spots, but Ronald Reagan and Harry Truman — who Yoo said were roundly criticized by academics at the time they left office — were in the top 10.

Yoo said he looked for commonality among the best presidents, and found they all served at a time of great national crisis.

“The other part is that they are not just presidents during crisis, but they respond to it by reading the powers of their office broadly, sometimes or oftentimes in conflict with the views of the other branches of government, and they do that to advance the national interest,” he said.

The worst presidents, he said, were the ones who were faced with crisis and responded to it by interpreting their powers narrowly, “by deferring to the other branches and by sort of reducing themselves into a shell.”

Yoo pointed to the presidencies of Abraham Lincoln — who ranked as one of the best presidents – and his immediate predecessor, James Buchanan, who ranked as one of the worst.

Buchanan was president when Lincoln was elected, and was still in office when states began to secede from the union.

“Buchanan actually took the view that secession was unconstitutional, that it was a violation of the Constitution for a state to leave the union,” Yoo said. “In fact, he took the same constitutional view on that issue that Lincoln would take.”

However, Buchanan didn’t believe he had the constitutional authority to stop the secession from happening, and looked to Congress to stop it.

“Congress appointed a special committee to study the issue and nothing happened,” Yoo said.

In contrast, Lincoln came into office and immediately raised an army and navy, took money out of the treasury and sent military forces against the South.

“He suspends the writ of habeas corpus, eventually throughout the entire North,” Yoo said. “He defies a direct order from the chief justice of the United States to release suspected Confederate spies held in Maryland. He just refuses to release them. It’s one of the few examples where a president has refused to obey an order of the Supreme Court. His greatest act as president, the Emancipation Proclamation, is, in modern parlance, a use of unilateral presidential power.”

Yoo said President Barack Obama will ultimately be judged not on his domestic agenda, but on his response to international issues such as the wars in Iraq and Afghanistan. He cited the surge in Afghanistan as a unilateral decision that indicates a more expansive use of executive authority than Obama embraced early in his administration.

“That to me is what might be the ultimate irony of the Obama administration…his place on that list, and I hope that it will be a high place on the list, will be because he adopted the same view of the Constitution and his powers that his predecessors held.”

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