He believes the president is empowered to spy, torture, and kill, but that he can only temporarily appoint with permission. What if he's right?
What if the Bush Administration lawyers were right? What if the president really does possess the authority under the Constitution to torture detainees, crush the testicles of children, spy on Americans without a warrant, indefinitely imprison anyone without charges, and assassinate citizens? It's useful to proceed, for the duration of this article, as if John Yoo and David Addington, two of the most extreme advocates of executive power in American history, are in fact correct in all their legal theories, for there is no better context for their most recent bit of analysis.
The subject is President Obama and an action he took: last week he appointed four people, three to the National Labor Relations Board and the other to the Consumer Financial Protection Bureau. When Congress isn't in session, the president is permitted by the Constitution to make temporary recess appointments to fill vacancies that normally require Senate approval.
For some time, however, that provision hasn't worked as the Framers intended. During the Bush Administration, Harry Reid and the Senate Democrats would hold pro-forma sessions to prevent certain recess appointments from being made. Under the Obama Administration, Republicans started violating the spirit of the Constitution in the same way. Finally, President Obama decided that he'd just go ahead and make recess appointments anyway, an apparent violation of the law's letter. Personally, I'd urge Republicans and Democrats to observe the spirit and letter of the law. If anyone in this pissing contest comes out looking good I can't see it.
It is nevertheless raising eyebrows that Yoo and Addington, the advocates of extreme executive power, are among the loudest voices excoriating Obama for overstepping his authority. Adam Serwer, who has long covered these issues, has an appropriately sardonic summary:
David Addington, the former legal counsel to then-Vice President Dick Cheney who helped construct the legal justifications for Bush-era torture policies, argued the president had the "inherent" authority to ignore federal law when spying on American citizens, and put forth the novel view that the vice president's office is not a part of the executive branch and therefore not subject to congressional oversight, told the New York Times that Obama's recess appointments were "flabbergasting and, to be honest, a little chilling."
John Yoo, the former attorney with the Bush-era Office of Legal Counsel who suggested the president could order a child's testicles crushed, massacre a village of civilians or unilaterally suspend free speech in the event of a terrorist attack, also fears for the future of the republic if the president is able to bypass Senate procedural gimmicks meant to block recess appointments. At National Review, Yoo attacks Obama for his "abuse" of executive power in appointing Richard Cordray to head the CFPB.
As Serwer goes on to acknowledge, "There's a genuine legal argument over whether or not Obama has the authority to make recess appointments when the Senate is in pro forma sessions, even those explicitly designed to foil such appointments." And remember, for the purposes of this post, any interpretation offered by Yoo and Addington is as good as Constitutional law, so presume that the Constitution doesn't permit Obama to make these appointments (aside from the conceit of this post, it is in fact my opinion that Obama acted badly here).
The beauty of this conceit is how inane and useless it reveals the U.S. Constitution as understood by Yoo and Addington to be. If their interpretations are in fact correct, the Framers have long been overrated, for the document meant to limit federal power and act as a safeguard against tyranny hands to a single man unchecked authority to secretly spy on, arrest, indefinitely detain, and torture any one of us! Yet it puts a definitive check on his ability to openly and temporarily appoint bureaucrats to not-particularly-powerful posts that Congress could eliminate at will.
Is that the framework instituted in 1789? Yoo and Addington say so. And if they're right, what a transparently flawed framework it is. How inadequately it protects our liberties. How misplaced are its checks, how blind to the most potent threats to freedom are its curious balances. That Constitution would be cause for bitterness and mockery, not reverence, for it would do nothing to stop tyrants from coming to power in the way that so many have, even as it forbade relatively inconsequential abuses that could be easily remedied and wouldn't meaningfully threaten life, liberty, or the pursuit of happiness even if were they never undone at all.
Image credit: Reuters