John Yoo is a constitutional scholar at the University of California and was the chief legal architect for some of the Bush-Cheney administration’s most controversial post-9/11 measures (USA Patriot Act, White House memo on “torture,” use of warrantless surveillance on phone calls and e-mail messages, etc.). In a recent New York Times essay, Yoo argues that President Bush is attempting to revitalize the constitutional power of the presidency by establishing military tribunals for detainees, by abandoning Common Article 3 of the Geneva Accords that requires humane treatment of detainees, and by other controversial initiatives. According to Yoo, American presidents since Richard Nixon have exercised reduced power in comparison to the legislative and judicial branches, so Bush is merely restoring the balance of power.
History proves that Yoo is wrong. Richard Nixon’s Watergate misdeeds resulted in his resignation, but Nixon’s resignation did not diminish the presidency. It merely ended his administration. Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, and Bill Clinton followed Nixon to the White House before George W. Bush. They each faced political challenges that are common to our three-branch system of government. The Constitution was not amended after Watergate to reduce presidential power. Whether one agreed or disagreed with the policies of a given president, intellectual honesty requires that we reject Yoo’s claim that the American presidency lost power after Watergate.
Besides being untrue, Yoo’s argument is also a frontal attack on American democracy. The Declaration of Independence states “We hold these truths to be self-evident, that all men are created equal,” because the founders knew that people in the colonies were equal to King George III of Britain.
From the beginning, Americans have rejected and distrusted any notion of or excuse for unilateral or autocratic power. In our society, governmental power is shared by three co-equal branches. Attempts across history by various presidents to usurp legislative or judicial functions have always met fierce and justified opposition. Franklin Roosevelt’s attempt to pack the Supreme Court to achieve his New Deal objectives was opposed in much the same way as has been George W. Bush’s scheme to circumvent the judiciary to try detainees and conduct warrantless surveillance on American phone calls and e-mail messages.
The United States, despite what Yoo, Bush, Cheney, and others who support the notion of a unilateral presidency may prefer, is a democracy, not an autocracy. Bush, even as commander-in-chief of the military, must still respect the co-equal powers of Congress and the courts and the Constitution of the United States. His frustration is only different in time, but not in character, from that of Andrew Jackson, whose military policies were also ruled unconstitutional by the U.S. Supreme Court.
Americans expect that presidents will be frustrated in these democratic ways. We know that the checks and balances John Yoo, Bush, and Cheney dislike so much are what prevent American presidents from becoming despots. Our three-branch form of government preserves our freedoms and rights as citizens and protects us from ever again being royal subjects. No matter the person in the White House, freedom depends on a measure of presidential frustration.
Judge Wendell Griffen is a member of the Arkansas Court of Appeals. Max Brantley is off this week.