Executive Power and the Discipline of History
Julian Davis Mortenson
University of Michigan Law School
February 17, 2011
University of Chicago Law Review, Vol. 78, p. 377, 2011
U of Michigan Law & Econ, Empirical Legal Studies Center Paper No. 11-002
U of Michigan Public Law Working Paper No. 233
In a trilogy of books published after September 11, John Yoo has argued that George W. Bush’s counter-terrorism efforts were well grounded in both law and policy. As a rhetorical matter, Yoo largely grounds his legal claims in British and American history. But his conclusions are not actually tethered to plausible historical analysis. To demonstrate that fact, this essay focuses on three legal problems presented by the first-term Bush administration: the question of presidential preeminence in conflict with Congress; the question of presidential susceptibility to judicial supervision; and the question of presidential power to start armed hostilities. On each issue, the historical evidence suggests an American constitutional tradition that is wholly at odds with both Yoo’s own conclusions and the positions advanced by the Bush administration. Yoo’s legal claims therefore depend entirely on an underdeveloped theoretical proposition about national risk tolerance during crisis. This essay does not attempt to resolve the validity of that proposition. But the surviving argument must be recognized for what it is: a first principles assertion about political theory that has little to do with either law qua law or the discipline of history.
Number of Pages in PDF File: 72
Keywords: constitutional law, constitutional theory, originalism, legal history, history, national security, terrorism, counterterrorism, Guantanamo, separation of powers, foreign affairs
Date posted: February 19, 2011 ; Last revised: March 17, 2011
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