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Unitary, Executive, Or Both?, John C. Yoo
Unitary, Executive, Or Both?, John C. Yoo
John C Yoo
This essay argues that the “unitary executive” of the American Constitution includes both a procedural component (the President may remove subordinate officers) and a substantive component (the President possesses unenumerated powers through Article II’s vesting of the executive power). It reviews The Unitary Executive, by Professors Steven Calabresi and Christopher Yoo, which maintains that no President has consented to limitations on his authority to direct and remove subordinate officials. It praises their comprehensive effort to examine each presidential administration, but finds that the survey should have focused more attention on moments, such as Franklin Roosevelt’s acceptance of the independence of …
Great Power Security, John C. Yoo, Robert J. Delahunty
Great Power Security, John C. Yoo, Robert J. Delahunty
John C Yoo
The change of administration in the US may have encouraged the belief that collective security will finally have its day. A conventional wisdom also seems to be emerging among many, if not most, academics in international law that the strengthening of the UN security system would advance international peace and security. Although the twenty-first century has brought radically different security threats from those that existed when the UN Charter was first written, many seem to believe that concentrating authority in the Security Council remains the most effective international legal process for the use of force. Resurrecting the formal UN Charter …
The 'Bush Doctrine': Can Preventive War Be Justified?, John C. Yoo, Robert J. Delahunty
The 'Bush Doctrine': Can Preventive War Be Justified?, John C. Yoo, Robert J. Delahunty
John C Yoo
We continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies using weapons of mass destruction. In such circumstances, it might seem natural for U.S. policymakers to consider preventive war as a possible tool for countering such threats. Yet in the current climate of opinion, such thinking would be controversial - in large part, no doubt, because of the continuing disputes over the normative, strategic, and legal wisdom of what has been called the “Bush Doctrine.” Preventive war, …
Lincoln And Habeas: Of Merryman, Milligan, And Mccardle, John C. Yoo
Lincoln And Habeas: Of Merryman, Milligan, And Mccardle, John C. Yoo
John C Yoo
This essay examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases - Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle. In Merryman, Chief Justice Taney held that President Lincoln’s suspension of the writ of habeas corpus was unconstitutional. In Milligan, the Court held that military commissions had no jurisdiction over civilians in Northern states, where the courts were open and their process unobstructed. Although both opinions provide stirring rhetoric about the vitality of constitutional rights during wartime, they became largely irrelevant. President Lincoln refused to obey the Court and continued …
Administration Of War, John C. Yoo
Administration Of War, John C. Yoo
John C Yoo
This essay asks whether the Constitution’s implicit grant of the removal power to the President provides control over the administrative agencies by examination of civil-military relations under the administration of President George W. Bush. Control over the military is one of the most significant, but also understudied, aspects of administrative law. The U.S. Armed Services are the nation’s first administrative agencies, predating the Constitution itself. The President has greater freedom to remove and command military officers than over the personnel of any civilian agency. Yet, greater constitutional command over the military agencies has not produced greater presidential control. Since the …