Janet Cooper Alexander,
John Yoo's War Powers: The Law Review and the World,
100 Cal. L. Rev. 331
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol100/iss2/2
John Yoo’s 1996 The Continuation of Politics by Other Means: The Original Understanding of War Powers is surely among the most consequential articles ever to appear in the California Law Review. Five years after its publication, Yoo became the principal theorist of the Bush administration's War on Terrorism policies. His expansive theory of presidential primacy became the legal basis for the most controversial of President Bush’s policies, including the use of torture (or “enhanced interrogation”), indefinite detention without charge, warrantless wiretapping within the United States, and the claim that neither constitutional protections nor other provisions of domestic and international law constrain treatment of suspected terrorists.
Yet the methodology and conclusions of War Powers have been subjected to comprehensive and devastating criticism, addressing issues ranging from selective use of evidence to fundamentally misunderstanding the Framers’ rejection of monarchical prerogatives in constructing the executive power. Yoo’s theory is based on a presumption that the Framers’ design was to replicate the British government’s allocation of powers between Parliament and the King. To reach the conclusion that the President has primacy in war, subject only to Congress’s spending and impeachment power, Yoo ignores the many war powers expressly granted to Congress in Article I and disregards or dismisses the remarkably unanimous statements of prominent Founders disclaiming the British model.
After reviewing the criticisms of Yoo’s theory, this Essay reflects on how a flawed and eccentric historical theory came to underpin the government’s conduct of war and foreign policy. Finally, this Essay examines the implications of this saga for law review publishing, as well as for the participation of legal academics in government and the formation of national policy.