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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 …
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 …