Akkam’s Razor

You may recall my prior post about John Yoo and the politicization of the Justice Department.  One of the things several bloggers have mentioned, after reading through the content and footnotes of Yoo’s 81-page torture memo (drafted when he was a rising star in the Office of Legal Counsel) was the notable absence of a particular hallmark case…

But before that, take a gander at this post at Lawyers, Guns, and Money, regarding Bush, Chertoff, and the border fence, referencing a NYTimes column:

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final.

The author, Adam Liptak, continues:

People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of the sort of unilateral power the Bush administration has so often claimed for itself.

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

Par for the course, no?

Now, back to the case Yoo neglected to cite in his opinion stating the President could in essence order torture, disregarding precedent, legislation, and treaties to the contrary. The case in question is Youngstown [Steel] vs. Sawyer:

To avert a nation-wide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the president by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces.

The Supreme Court then analyzed whether the president may do whatever he believes to be necessary to protect the nation in a time of war based on his Commander in Chief powers. John Yoo says that based on the power as Commander in Chief, the President can do ANYTHING, even ignore Treaties and Acts of Congress, if he believes it necessary in order to protect the country. Even crush the testicles of the child of a detainee being interrogated.

[…]

Youngstown is still good law, it hasn’t been overturned, yet Yoo somehow managed to ignore it. Gee, I wonder why?

Maybe because of a quote like this?

The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.

Or this?

In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .” After granting many powers to the Congress, Article I goes on to provide that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Or this?

The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President

Or this?

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

By now, even without a law degree, you have figured out that SCOTUS overturned the President’s action.

looseheadprop goes into far greater detail, including the tests the Supreme Court layed out regarding Presidential War Time Powers, which are quite constricting, particularly to the Bush world view of the Unitary Executive.