Demonstrators arose at last week’s American Political Science Association annual meeting with signs exhorting their fellow members to “Stand Up to Torture” by bodily turning their backs on John Yoo, late of the George W. Bush administration, who presented to two sessions on wholly unrelated topics. The protests’ premise was apparently that some views so exceed the pale that those who espouse them ought not to be given a scholarly hearing even on other topics. One might have more confidence in their judgment that Yoo—of whose views on presidential authority and the legality of torture I have been sharply critical—resides beyond that pale if the pale’s scope were not permanently shifting.
Mike Greve notes John Yoo’s call for a new conservative program. I don’t have access to John’s article, but Mike raises a number of important issues.
I agree with Mike that one wants a program that does not shift based on who is in power, but instead promotes the long run interests of the country in accordance with one’s political principles. And I also agree with Mike (and John) that much of the Scalia program from the 1970s and 1980s was ill considered (or in Mike’s terms, was tactical, not strategic).
As a brief response, let me offer some ideas concerning a new conservative program:
1. I agree that Chevron and the embracing of deference to agencies was mistaken. It is true that the conservatives embraced it as a way of resisting Skelly Wright, but that was mistaken. It was bad enough that the courts allowed Congress to delegate legislative power to the agencies. It was worse that the courts invented a doctrine that gave those agencies additional power over the extent of those delegations. As a matter of administrative law, deference should be found only in cases where Congress actually confers it.
2. I also favor the REINS Act. It would operate to cut back on the unconstitutional delegations of power to the agencies. And it shows that such delegations are not necessary for the administrative state to function. But there are two chances of members of Congress passing a statute that would force them to take responsibility for a large number of individual regulations, when they can now avoid that responsibility: slim and none.
The latest issue of the National Review has an article by Berkeley law prof John Yoo that invites serious thought and discussion—very serious thought. Here’s the gist:
In the Reagan era, conservatives stood for a “unitary executive” and White House control over administrative agencies (administered through OMB’s OIRA); and for judicial deference to administrative agencies (Chevron deference became near-totemic). Congress was the enemy—the engine of government run amok. Conservatives, John Yoo says, should now “mov[e] beyond” those commitments. What he’s actually urging is a broad-scale reversal: Ditch judicial deference. Re-examine INS v. Chadha, which declared the legislative veto unconstitutional (and which conservatives at the time celebrated as a rousing victory). Re-embrace Lochner—the epitome of “the idea of natural rights that actually informed the Framing.” And, get the institutional landscape right:
Conservatives have correctly shared the Founders’ fear of excessive lawmaking, but they have focused on the wrong source: Congress. They should shift their aim to the administrative agencies, which are the greatest threat to our liberties today.
Editor's Note: John Yoo responds here There has long been a tension between the requirements of the U.S. Constitution and the commitments of the United States under international law. Indeed, that tension surfaced early in the history of the new republic. The revolutionary government in France—and many of its American supporters—argued that the United States was obligated under its treaty of alliance to help that country in its armed struggles against Great Britain and other conservative European monarchies who sought to overturn the revolution. Alexander Hamilton and other advisers to President George Washington, however, argued successfully that the United States had…
In this edition of Liberty Law Talk, I speak with John Yoo about how the American Constitution should interact with the proliferating sources of international law in treaties, conventions, agreements, and customary international law. A growing array of transnationalist legal scholars believe international law should be more easily incorporated into America’s constitutional and domestic law however much it may interfere with popular consent. Yoo’s new book, co-authored with Julian Ku, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, provides sturdy constitutional arguments for dealing with these questions. The Constitution's core structure of separation of powers and…