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Saving the presidency from lawyers.

The second Bush presidency has made at least one major contribution to the study of the presidency: It has put the lie to the notion that constitutional powers and institutional relations are less than central to the contemporary presidency and to any methodology selected to study that institution. After all, the George W. Bush presidency's overarching goal and master plan, spanning the gamut of routine day-to-day activities, on the one hand, to the administration's most important policy goals, on the other, has been to define and redefine the president's constitutional powers consonant with its singularly expansive view of the office.

The Bush administration's unceasing effort to recast Article II, including such activities as the prolific use of signing statements to rewrite legislation, expansive claims of executive privilege, unbounded declarations of secrecy spanning every manner of presidential (and vice presidential) action, warrantless wiretapping, war powers claims, the detention of suspects related to external threats, among other actions, all ride on express constitutional claims made by the administration. While the substance of these claims is, at the least, open to dispute, George W. Bush is no Neustadtian president seeking to buttress puny formal powers by marshaling his persuasion skills to strike bargains with Congress or the bureaucracy.

Baby, the new institutionalism is back, and lawyers are leading the charge.

The central role played by lawyers in the institution of the presidency is nothing new, nor is it unique to the Bush administration or to governance itself. But given that the Bush administration is seeking a new class of constitutional (as distinct from political) powers, it needs more than a political justification. It needs to be able to make a plausible structural argument. In the case of his prosecution of the war on terrorism, for example, Bush argues partly from necessity. But he also argues vehemently that his reading of his Article II commander-in-chief powers not only allows him to take any action he deems necessary for the security of the country, but also that Congress may not legislate to circumvent those powers as he defines them and that the courts may not adjudicate any challenge to them (Spitzer 2006). When Bush's claims to constitutional powers are married with another trait--adherence to the constitutional doctrine of "original intent"--then the role of lawyers becomes not only important but vital. It is, after all, central to modern conservatism that contemporary governmental actions should conform to an originalist view of the Constitution; that is, the modern exercise of powers should hew closely to a narrow or strict interpretation of the Constitution, and the founders' intent behind it, as it was contemplated in 1787. The opposing "living Constitution" perspective, expressing the view that the Constitution should be interpreted to conform to contemporary problems, is anathema. Yet to return to Bush's expansive view of Article II commander-in-chief powers, it certainly seems at first glance to conform more closely to a living Constitution view, not an originalist view. The solution to this conundrum--that is, to behave according to the tenets of a living Constitutionalist while claiming originalist pedigree is to construct or stitch together a constitutional justification that has the appropriate provenance. The ideal facilitators for such an enterprise are lawyers; the ideal venue for such an activity is law reviews.

My argument, in a nutshell, is that legal training and law reviews are a breeding ground for wayward constitutional theorizing; in the case of the presidency, legal academic analysis has provided critical scholarly legitimacy for at least some of the ideas that have flowered in the current Bush administration (although this phenomenon is limited neither to the presidency nor to the current administration). Legal training, including the adversarial process, advocacy, and client loyalty, are well suited to the American system of justice, in which opposing, one-sided arguments collide to produce a just outcome. By its nature, the adversary process often has the effect of giving the presentation of truth a lower priority, as winning the argument becomes the most important goal. When these principles are applied to scholarly analysis of constitutional matters, the all-too-frequent result is selective analysis, overheated rhetoric, overstated conclusions, and distortion of facts and concepts. Such wayward theorizing too easily finds its way into print in the nation's more than 600 law journals, where, unlike every other academic discipline, the professional publications are run by law students, not faculty or other trained professionals, and peer review is almost never used to determine publication worthiness.

I am not the first to observe the traits described here. (1) In a recent essay on the relationship between law, legal analysis, and the study of presidential power, Kenneth Mayer observed that "the legal literature ... often incorporates simplistic or highly stylized conceptions of politics and government, and legal analyses often do not meet the standards of good social science research" (2004, 13). Mayer's verdict has found empirical confirmation in the work of Lee Epstein and Gary King, who authored a landmark article (published in a prominent law journal) in which they examined the methodological soundness of empirically based law review articles. Their study included a reading of every article published in law journals from 1990 to 2000 in which the word "empirical" appeared in the title--231 articles in all. They found that, without exception, every article they examined violated at least one principle of sound empirical research, leading them to conclude that "serious problems of inference and methodology abound everywhere we find empirical research in the law reviews and in articles written by members of the legal community" (Epstein and King 2002, 15). Epstein and King argued, too, that at least part of the problem arises from the nature of legal education and training. They noted "the markedly different goals" of lawyers as compared with academics of other disciplines: "While a Ph.D. is taught to subject his or her favored hypothesis to every conceivable test and data source, seeking out all possible evidence against his or her theory, an attorney is taught to amass all the evidence for his or her hypothesis and distract attention from anything that might be seen as contradictory information" (9). They further noted that "lawyers and judges, and hence law professors, specialize in persuasion. Lawyers need to persuade judges and juries to favor their clients, and the rules of persuasion in the adversary system are different from the rules of empirical inquiry" (9 n.23).

In my own work, I have examined this phenomenon in connection with three constitutional subjects: the presidential veto, the commander-in-chief power, and the Second Amendment's right to bear arms. In the present essay, I will discuss only the first two, but first I lay out in greater detail my argument as it arises from the nature of legal training and the functioning of America's law reviews.

Legal Training and the Adversary System

The purpose of legal education is, of course, to produce lawyers--that is, "to prepare and to socialize students for entry into a very narrow range of career lines" (Klare 1982, 336). The job of the lawyer is to function successfully within the framework of the American legal system. And that system--indeed, the "central tenet" (Bonsignore et al. 2006, 368) of American justice--rests on the adversary system.

The adversary system is predicated on the belief that the best way to determine the truth (or at least arrive at a relatively just outcome) in a legal dispute is for opposing sides to present their strongest possible arguments to an impartial and passive arbiter, whether a judge or jury. Truth to tell, the adversary system in operation tends to serve "the objective of resolving disputes rather than searching for material truth" (Landsman 2000, 3). As a standard law school text notes, "[t]aking sides is the root notion of the Adversary System (the clash of mad dogs) as opposed to the Inquisitorial System (one very nice dog, sniffing). The idea is that truth is more likely to emerge from conflicting positions than from the most well-meaning of neutral investigations" (Hegland 2000, 16). The adversary system is thus composed of three key elements: a neutral and passive decision maker (judge or jury); partisan advocates representing the opposing sides (lawyers); and a highly structured set of rules that govern the activities of the advocates (rules of procedure or conduct, evidence, and ethics). These guidelines are essential because long experience with the adversary system has demonstrated "the natural tendency of advocates to win by any means available" (Landsman 2000, 4-5).

The nature of the adversary system means that a lawyer's foremost obligation is to the lawyer's particular position or client. (2) Even though lawyers function as officers of the court, they "have no obligation to parties or interests other than their own clients.... Consequently, justice, or the right result, is not the responsibility of either lawyer" (Gillers 1996, 166-67). (3) In fact, although lawyers are ethically barred from lying, or knowingly allowing their clients to lie, lawyers may encourage a fact finder to reach a wrong conclusion by, for example, knowingly presenting perjured testimony or cross-examining truthful witnesses in a manner that undercuts their credibility, if such an end promotes the goal of effectively defending the client (Freedman 1975, 27, 43). These tenets of the adversary process are not limited to the criminal and civil realms but also emerge, for example, during contract negotiations (Gillers 1996, 167-68). As the leading legal theorist Lon Fuller noted, the lawyer's job is "not to decide but to persuade. He is not expected to present the case in a colorless and detached manner, but in such a way that it will appear in that aspect most favorable to his client" (1971, 35). Marvin Frankel made this point expressly when he observed this about the consequences of legal education and its practice:
 We become skeptical about, if not indifferent to, the notion of
 objective truth. Who can know the truth, after all? ... We are not
 historians, commissioned to recapture events as they actually
 happened. Our job is to learn what witnesses will or may say, what
 evidence exists, who will or won't discover the evidence, who will
 tell what "story," how much must become known, what may not be
 discoverable, what "the record" will finally look like.... we learn
 a kind of modulated ignorance, stopping short of final answers,
 relying enthusiastically on the division of labor that separates
 lawyers from judging. (1980, 23-34)


In no other academic field of inquiry, whether the natural sciences, the social sciences, or the humanities, is the value of truth seeking subordinated to the kind of values that are the foundation of legal training: to marshal every persuasive skill to win an argument, to put the interests of the client or employer above that of the truth, and to maintain confidentiality regardless of its consequences. Law professor Anthony T. Kronman put it succinctly: "Scholarship ... aims at the truth. Advocacy, by contrast, is concerned merely with persuasion" (1993, vii). Writing in 1969, law professor Arthur Selwyn Miller was even more frank in his verdict about the consequences of the adversary system on scholarship: "[L]awyers, simply because they are trained to be advocates--to take sides face a particularly difficult task when called upon to shed the habits of their training (and practice) when ... writing for learned journals.... In no other profession or discipline, except theology, can it be said that the very system itself is a hampering effect on the search for truth" (291). Miller argued that two key facets of the adversary system explain this: the overarching emphasis the adversary system places on the (partisan) pursuit of the client's interests, and the adversary system's reasoning process, which works backward (from conclusion to premise) rather than the reverse (291-93). Legal historian Alfred H. Kelly similarly noted that "the radical difference in theory and process between the traditional Anglo-American system of advocacy and equally time-honored techniques of the scholar-historian" (1965, 155). (4)

Law Reviews

This does' not mean that those trained in the law are incapable of producing sound scholarly analysis, any more than it means that scholars in other disciplines are somehow immunized from defective scholarship by virtue of their graduate school and disciplinary training. Without question, much superb scholarship is to be found in legal publications. Yet the difference in values, principles, and training between law and other disciplines is as stark as it is undeniable. As one critical analysis of legal writing shrewdly noted, "[a]n attorney who treats a client like a hypothesis would be disbarred; a Ph.D. who advocates a hypothesis like a client would be ignored" (Epstein and King 2002, 9).

The deleterious consequences of these principles applied to academic research and writing might well be mitigated were it not for the other chief characteristic of academic writing in the realm of law: an enormous publishing venue composed of more than 600 law reviews, the content of which is controlled (with a handful of exceptions) by law students. Though well-meaning, hardworking, and diligent, law students, by definition, cannot possess, and cannot be expected to possess, the expertise necessary to judge the merit of manuscripts sent to them for publication based on subject-matter expertise. Married to student control is the related fact that peer review is almost never relied on to make publication decisions. The absence of peer review, by itself, sets law journals apart from the academic publishing venues of literally every other academic discipline; the reality of student control does likewise. The reasons for student control of law reviews date to the nineteenth century and, ironically, the professionalization of legal education attached to the development of modern, university-affiliated law schools (Spitzer 2008, chap. 2). A detailed discussion of this evolution is beyond the scope of this essay. Yet this critical trait is the paramount and unassailable characteristic that renders law review publications suspect. Yes, much superb scholarship has been and will continue to be published in the pages of law reviews. But the obvious problem is the absence of any expertise-based barrier to any and every conceivable kind of writing. And the sheer size of law's publishing venue--more than 1,100 law publications, of which the nation's 600 law reviews are but a subset invites academic mischief. Two examples of this mischief are the debates over the inherent item veto and the commander-in-chief power.

The Inherent Item Veto

Presidents since Ulysses S. Grant have argued in favor of a presidential item veto (Spitzer 1988). Yet this enduring debate took an odd twist during the George H. W. Bush presidency when he made it known in a press interview in 1989 that he believed he already possessed a constitutionally based item veto, was actively considering its unilateral exercise, and was then prepared to invite Congress to take him to court if it objected (CQ Weekly 1989; Seib 1989). Both the House and the Senate took up this cause as well, with some lawmakers supporting Bush's claim. (5)

The phrase "inherent item veto" refers to the argument that the Constitution, as written in 1787, already gave the president an item veto. The argument first appeared in an article published in the Temple Law Quarterly in 1965 (Givens 1965). The idea received an important boost in 1987 when lawyer Stephen Glazier (1987, 14) published a widely noted and quoted op-ed in the Wall Street Journal that advocated the inherent item veto. (6) The following year, a Washington, DC-based conservative law center, the National Legal Center for the Public Interest, published proceedings of a conference held in 1988 that included a brief paper by historian Forrest McDonald (1988), who offered what appeared to be sound historical evidence in support of the inherent item veto thesis, That research turned out to be defective, and McDonald later abandoned the argument. Nevertheless, other articles appeared in legal publications during the first Bush administration that proved receptive to the idea (the idea was floated during Ronald Reagan's presidency but was rejected). But the inherent item veto was planted, cultivated, and legitimated in the pages of legal publications, eventually yielding a notable list of supportive (and also critical) articles.

Setting aside the obvious fact that no president until the first Bush ever claimed or exercised an item veto based on executive powers enumerated in the Constitution, (7) was it possible that such a power laid concealed, like an unexploded bomb, within the confines of the Constitution? What is to be made of such a claim? In order to understand the inherent (also sometimes called unilateral or implicit) item veto argument, and to discern the pivotal role of law reviews, I examined, in considerable detail, the constitutional and historical case for the power that, with the exception of one article written by historian McDonald (1988), appeared entirely in law reviews, authored by lawyers (Clineburg 1966; Crovitz 1990; Haswell 1989; Krasnow 1991; McGowan 1986; Schroeder 1991; Sidak and Smith 1990).

The inherent item veto argument, I found, was predicated on a veritable parade of erroneous assumptions and assertions. The main arguments on behalf of an inherent item veto were that an item veto was actually used in colonial governance, including in actions taken by the British Board of Trade and Privy Council; that the impoundment of funds is, in effect, the same thing as an item veto; that signing statements are also the same as an item veto; that state constitutions in the nineteenth century adopted an item veto before the Civil War (when the Confederate Constitution did, in fact, confer an item veto on its president); that the practice of attaching nongermane riders to legislation was unknown to the Constitution's founders and that the founders defined a legislative "bill" as pertaining to one and only one subject; and that legislative presentment was defined in such a way as to preclude the submission to the president of enrolled bills dealing with more than one subject at a time. In point of fact, all of these propositions proved to be false. There are no applicable colonial or early state precedents for the inherent veto argument, including the actions of the Board of Trade and Privy Council (Moe 1987); the founders were indeed aware of the rider and omnibus phenomena in the construction of legislation (8) (in fact, they referred to the attachment of riders as "tacking"; Farrand 1966, 1:233, 2:273; see also Fitzpatrick 1940, 33:948); they were also aware that bill construction could be limited to single subjects, but chose not to codify such a narrow definition (Farrand 1966, 2:279, 3:202; Fisher 1987); and other powers, such as impoundment and signing statements, may have an item veto effect, but that does not make them item vetoes, nor provide any support for the proposition that Article I, section 7 provides the president an item veto. The first President Bush repudiated the inherent item veto idea in the final year of his presidency. In remarks offered on March 20, 1992, Bush said this: "Some argue that the President already has ... line-item veto authority, but our able Attorney General [William Barr], in whom I have full confidence, and my trusted White House Counsel [C. Boyden Gray], backed up by legal opinions from most of the legal scholars, feel that I do not have that line-item veto authority" (Public Papers 1992, 1:479). Until this repudiation, the inherent item veto was not just a political ploy to grab presidential power on the cheap; rather, it was an idea that had the imprimatur of a serious scholarly finding, thanks mostly to law review writing. Yet that legitimacy was utterly undeserved. And a near constitutional crisis was averted only when cooler heads in the first Bush presidency eventually prevailed.

The Unitary Theory and the Commander-in-Chief Power

The second Bush administration's expansive view of the constitutional commander-in-chief power, as it read Article II, is a subset of the administration's broader and singularly aggressive view of executive powers, referred to as the "unitary executive" theory. Nicknamed "executive power on steroids" (Epstein 2006), the unitary theory of executive power emerged in the 1980s in the Justice Department's Office of Legal Counsel under President Reagan. Under office heads Theodore Olson and Charles Cooper and Attorney General Edwin Meese, staff lawyers, including future Supreme Court Justice Samuel Alito, formulated the unitary executive theory. With coordinate support from the newly formed organization of conservative lawyers, the Federalist Society, these young legal thinkers were looking for a way to limit federal power and to curb, if not dismantle, the modern regulatory state. In the words of the Federalist Society, it is "a group of conservatives and libertarians dedicated to reforming the current order." (9) The phrase "unitary executive" was derived from references in the Federalist Papers to "unity" in the executive (Rosen 2006, 8). (10) In an ironic departure from the traditional conservative view that sought limited executive power (Burnham 1959; De Grazia 1965; Kendall 1963; see also Tatalovich and Engeman 2003, chap, 7), the unitary view argued for even greater presidential power as a means of attacking, and routing, power in the rest of the government. (11) Yet central to the theory's legitimacy was the predicate that its roots had been founded in 1787, not the 1980s. As one architect of the unitary view admitted, "What the idea had lacked was an intellectual justification and defense" (New York Times Magazine 2005, 106). Enter the law reviews.

Articles referencing the unitary executive began to appear in law journals in the mid-1980s (Krent 1990; Miller 1986; Strauss 1984), but the first full-blown and sustained explication and defense of the idea was published in 1992 (Calabresi and Rhodes 1992). (12) Thereafter, a lengthy series of articles appeared debating the merits of the unitary theory (Calabresi and Prakash 1994; Lawson 1994; critics include Flaherty 1996; Greene 1994; Kinkopf 1998; Lessig and Sunstein 1994). Capping the unitary argument was a series of four law review articles, amounting to nearly 500 published pages, all authored by Steven Calabresi, Christopher S. Yoo, and other associates, that provide a chronological account of what they claim shows the infusion of the unitary executive throughout American history under the modern Constitution (Calabresi and Yoo 1997, 2003; Yoo, Calabresi, and Colangelo 2005; Yoo, Calabresi, and Nee 2004). The sweep and ambition of this unitary view writing is nicely encapsulated by legal writer Gary Lawson, whose breathtaking argument in his article on the subject is that, as per the unitary theory, "[t]he post--New Deal administrative state is unconstitutional" (1994, 1231).

A detailed critique of the unitary theory itself is beyond the scope of this essay. Yet this overarching unitary literature found in law reviews suffers from at least four problems endemic to the problems found in too much law journal writing: It cherry-picks its evidence, often misrepresents the historical record, and ignores pertinent literature in other disciplines; it attempts to manufacture a constitutional pedigree for a purely contemporary political construct; it seeks to configure a constitutional basis for overturning existing case law that has long accepted the constitutionality of (in this case) the modern regulatory state; and it is a paradigmatic example of lawyerly advocacy scholarship--which is to say, it is not scholarship at all. Perhaps the best example of this last-named criticism is the fact that the unitary theory turns the related principles of separation of powers and checks and balances on their head. Any power identified as belonging to the president or the executive branch is, by unitary theory definition, beyond the reach of the other two branches, despite the fact that the essence of the three-branch relationship is one of overlapping and interconnected powers (which does not deny that each branch does retain exclusive control over some aspects of their respective branches). One need go no further than James Madison, who wrote in Federalist no. 51 that "[a]mbition must be made to counteract ambition." In order to effectuate such a governing system, "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other" (Hamilton, Madison, and Jay 1961, 322). As Louis Fisher concluded, "the model of the Unitary Executive was never adopted or intended, nor does it have any wholesale application today either in theory or practice" (2006b, 1; see also Kelley and Barilleaux 2006).

To return to the second Bush administration, its reconceptualization of the commander-in-chief power was first articulated in a September 25, 2001, memorandum from John Yoo, then deputy assistant attorney general, addressed to the deputy counsel to the president, Timothy Flanigan. This memo depicted the president's powers over war making and the use of troops abroad in the most sweeping terms imaginable. Mostly citing court cases and a sprinkling of secondary sources, Yoo's memo staked out the position that the other branches of government may impose no limits whatsoever on actions taken by the president as commander in chief if the president believes such actions are warranted in defense of the nation. The memo concluded that legislative enactments may not place "any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." (13) Similar sweeping assertions appear in numerous subsequent memoranda authored or coauthored by Yoo and others (see Fisher 2006, 1240-44).

Three factors catapulted Yoo's writings to the forefront of administration thinking: preexisting sympathies to grand presidential power claims among top Bush administration figures, including William Haynes, David Addington, Timothy Flanigan, and Vice President Dick Cheney; Yoo's "academic background and interests" (Golden 2005) stemming from his professional university affiliation and law journal writing on presidential power and foreign affairs; and the shocking nature of the 9/11 attacks. The impact of Yoo's writing was such that Yoo was allowed to bypass the normal clearance process to which opinions from the Office of Legal Counsel (to which Yoo was attached) would otherwise normally be subject (Golden 2005; Mayer 2005). According to later news accounts, Attorney General John Ashcroft was not consulted in the making of these early, key decisions and "was enraged to discover that Yoo, his subordinate" exercised such influence (Gellman and Becker 2007). This memo provided the underpinning of subsequent statements and memoranda asserting newly ambitious executive powers.

Public accounts of these documents referred to them repeatedly--and specifically regarding the Yoo-inspired analysis of the commander-in-chief power--not just as administration briefs or policy documents but as writings "justified in intellectual terms" (Mayer 2005), "scholarly arguments," and "scholarly efforts," referencing Yoo's academic background and writings (Golden 2005; Klaidman, Taylor, and Thomas 2006, 38; New York Times Magazine 2005; Priest and Smith 2004; Rosen 2006). (14)

Currently a faculty member at the University of California, Berkeley, law school, Yoo went on leave from that institution to serve as general counsel to the U.S. Senate Judiciary Committee from 1995 to 1996 and to serve in the second Bush administration's Office of Legal Counsel from 2001 to 2003. Of particular note, however, is his authorship of an article that appeared in the California Law Review in 1996, (15) in which he examined the historical and legal background of the war power and the commander-in-chief power. Yoo cited his article, plus two others of his authorship (2000a, 2000b), in his September 2001 memo on the conduct of military operations by the president. More importantly, the 1996 article was the linchpin of his policy writing in the Bush administration and therefore of what became Bush administration policy.

In this article, Yoo made several startling arguments that also emerged in subsequent Bush administration documents. Alternately rejecting (16) and misconstruing (17) the vast majority of scholarship on the subject, Yoo asserted that the constitutional war powers were designed to "encourage presidential initiative in war," meaning that presidents were to have the leading role in initiating war; that Congress's role in war making was not based on its power to declare war but instead on its funding and impeachment powers; and that "[t]he courts were to have no role at all" (1996, 170) in war-related matters. Yoo discussed early cases in which the Supreme Court did indeed rule on war-related questions, as in Bas v. Tingy (1800), Talbot v. Seeman (1801), and Little v. Barreme (1804). Yoo claimed, lamely, that the quasi-war with France that gave rise to these cases "supports this study's argument that the Framers did not intend the judiciary to play a role in the decisions on war" (293), although he never explained how. He concluded his discussion of the cases with the left-handed concession that none of the three cases "constituted the Marbury of foreign relations law" (294). Obviously, the cases could be of considerable import without rising to the level of being "a Marbury."

Yoo's article is significant for three reasons: first, it staked out a new and unprecedentedly aggressive view of the commander-in-chief power--a view that went beyond past writings that argue for a strong executive. (18) Second, consistent with the conservative fixation on original intent, (19) it sought to ground in the Constitution itself, subsequent case law, and history, the view that the presidential commander-in-chief power is beyond the reach of the other branches of government (in the process all but abandoning the separation-of-powers paradigm), instead of arguing for a strong executive based on historical evolution, political preference, or policy necessity (although Yoo did cite the actions of past presidents). Third, it provided the key intellectual underpinning for subsequent Bush administration memoranda, and policy, on this subject. (20) The connection between Yoo's 1996 article and Bush administration policy was made succinctly by Yoo himself in a 2005 interview when he stated flatly that Congress did not have the power to "tie the President's hands in regard to torture as an interrogation technique. It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture." (21)

Various writings have examined, and refuted, Yoo's primary arguments (Fisher 2000, 2006; Spitzer 2006), noting that Yoo failed to distinguish between defensive military actions ordered by the president and the initiation of offensive military operations; distorted the meaning of the all-important power of Congress to declare war; misjudged the courts' power to adjudicate war-related disputes; ignored or misrepresented the numerous instances when Congress has granted the executive authorization by statute to conduct military operations; wrongly argued that the Constitution's founders adopted the British government's monarch-centered model of war powers, as the founders actually rejected that model; and asserted, bizarrely, that Congress's only means to control an executive-initiated war is through the spending power or impeachment (Fisher 2000). The fact that Yoo's arguments from 1996 made their way into Bush administration policy documents is, in and of itself, no startling revelation. What is significant is the elevation of these arguments from lawyer's brief to policy, owing in no small measure to their treatment as academic scholarship. As noted earlier, press references, as well as references by government spokespeople, referred repeatedly to these writings as "scholarly effort{s} to define the perimeters of the law" (Priest and Smith 2004). If we take Yoo's law review article and other similar writings (22) as part of the construction of a scholarly, as distinct from political, provenance for the unitary executive view of the commander-in-chief power, then it provides another constitutional subject that has acquired a scholarly aura because of law review publications. As one later account reported, Yoo "became the theorist of an insurrection against legal limits on the commander in chief' (Gellman and Becket 2007).

My argument is neither so naive, nor presumptuous, as to suggest that the Bush administration's aggressive power claims would not have occurred had it not been for John Yoo's article. But in American politics and governance, the provenance of power assertions is no little matter. And after all, strong arguments can and have been made, long before the second Bush presidency, that the president should exercise commander-in-chief powers more broadly, based on some combination of prerogative powers, strategic necessity, political consensus, and historical evolution of an office (and a nation) that has undergone dramatic growth and change in 200 years. One of the most vigorous proponents of the strong presidency in the twentieth century, Clinton Rossiter, epitomized the combination of a realistic view of founders' intentions with unabashed preference for the modern strong presidency. "The framers of the Constitution," Rossiter observed, "to be sure, took a narrow view of the [commander-in-chief] authority they had granted" (1960, 22). Yet he also understood and approved of presidential efforts to enlarge the commander-in-chief power: "We have placed a shocking amount of military power in the President's keeping, but where else, we may ask, could it possibly have been placed?" (23). Writing more recently about the war power, David Mervin conceded that the standard view of the commander-in-chief power recognizing Congress's pivotal role and powers as defined in the Constitution "is broadly correct" (2000, 770-71; see also Kassop 2006; Pious 2006). Yet, he continued, "there are grounds for questioning how far those original aims should continue to control constitutional interpretation." After all, "the framers, for all their undoubted wisdom, got some things disastrously wrong by modern standards."

It is beyond dispute that both the United States and the office of the presidency are profoundly different in the twenty-first century than in the eighteenth, and that the demands of modern political reality necessitate a considerably expanded executive power. The modern separation-of-powers arrangement is not the legislative-centered system it was in the late eighteenth and early nineteenth centuries. It is also a truism that the constitutional system has survived for this long a period of time largely because it has been flexible enough to adapt to changes that no one could have anticipated in 1787.

Yet none of these arguments for a strong executive justifies the invention of a fictionalized constitutional past. The desire to mold constitutional, originalist understandings to fit contemporary political needs is understandable but reprehensible. The first job of academic scholars is to make every effort to get it right. The abiding concern is that legal training encourages deceptive constitutional arguments and that law journals make it far too easy for writing that possesses the form, but not the content, of scholarship to get it wrong.

In the case of the Bush administration's views regarding the commander-in-chief power, they are of immediate significance not only for that administration's actions and decisions but also because they may be cited by future administrations to justify subsequent actions and theories not otherwise supported by past arguments or precedent. The history of the presidency is littered with examples of such precedent-based justifications.

Conclusion: From Law Journal to Law

The significance of these views extends in two other directions. One occurs when the policy's architects become decision makers and law school faculty. Jay Bybee, for example, a chief author of several internal Bush administration power assertion documents when he served as head of the Justice Department's Office of Legal Counsel, is now a federal judge on the U.S. Court of Appeals for the Ninth Circuit, a vantage point from which he may well have the opportunity to apply the views he helped construct. And though he did not serve in the second Bush administration, Supreme Court Justice Samuel Alito was elevated to the high court by Bush and is similarly positioned to ratify the suspect unitary theory he helped construct as a young Justice Department lawyer in the 1980s. Lawyers joining law school faculty have been and will be well positioned to advance these arguments in the classroom and in publications.

The other direction is public debate and public policy. A one-sided lawyer's brief that morphs into the government's legal position and, in turn, becomes policy describes a policy process built on an inadequate foundation and false pretenses. Former State Department policy advisor during the second Bush presidency and executive director of the 9/11 Commission, Philip Zelikow, offered a stern warning about this very subject in a 2007 law school presentation. In his paper, Zelikow analyzed the Bush administration's response to the 9/11 attacks by arguing (with evident sympathy to administration actions) that its new approach to terrorism, while "fundamentally sound," was also "developed and implemented in a flawed manner" and that these flaws were magnified because of "the role that law and lawyers played in framing policy choices." Himself a lawyer, Zelikow criticized the administration's reliance on lawyers who were assembled to "consider and approve the legality" of actions the administration had already decided to take to fight the war on terror. In other words, a political and policy debate "became framed as a legal debate. Legal opinions became policy guides." Worse yet, in Zelikow's words, "The legal defense then became the public face of the policies." This was deeply problematic because it circumvented the normal policy vetting processes that a presidential administration might otherwise use to arrive at policy decisions. Instead, the lawyers chosen to justify and ratify the second Bush administration's policy decisions did what lawyers do for their clients: prepare the equivalent of briefs to justify the actions and preferences of the client. These legal opinions were used "to provide formal policy cover for Agency [i.e., CIA] operations.... Thus the public debate was decisively framed--and deformed." A further problem, according to Zelikow, is the fact that lawyers are not normally taught moral reasoning. Therefore, problems are framed "less as a detailed analysis of what should be done, and more as a problem of what could be done." No wonder the Bush administration found itself defending policies pertaining to such matters as justifications for torture, rendition, and prisoner detention that seemed plainly illegal, politically corrosive, and strategically unnecessary. As Zelikow concluded, the processes that unfolded in the second Bush administration were "developed and implemented in a flawed manner" because of "the way law and lawyers were used to rationalize the policy and frame the debate." Another recent critique of the second Bush presidency charges that "{g}overnment lawyers have become instruments by which fundamental constitutional principles are eroded." Bush's lawyer-driven constitutional blueprint has pushed the nation's government "to a monarchical vision ... with a correlative neutering of the Constitution's checks and balances" (Schwarz and Huq 2007, 187).

When former President Richard M. Nixon offered as a justification for his involvement in the Watergate scandal the excuse that, "[w]hen the president does it, that means that it is not illegal" (Cutler 1990, 614), no one accepted that statement as a serious or valid legal (much less constitutional) defense; in fact, Nixon's pronouncement was received with little more than guffaws. Yet the law journal writings on the commander-in-chief power have succeeded in constructing a constitutional edifice around Nixon's statement. And no one is laughing now.

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ROBERT J. SPITZER

State University of New York

(1.) I do, however, lay claim to the earliest discussion of these problems in print, at least in political science (see Spitzer 1997, 280-81).

(2.) For example, federal district court judge Marvin F. Frankel wrote that the "advocate's prime loyalty is to his client, not to the truth as such" (1975, 1035).

(3.) The adversary system has its limits; lawyers are not supposed to lie to clients or encourage clients to lie, for example. Prosecutors in criminal cases who uncover evidence that would help the defendant are obligated to make that information available.

(4.) Judge Frankel wrote that "we know that others searching after facts--in history, geography, medicine, whatever--do not emulate our adversary system.... many of the rules and devices of adversary litigation as we conduct it are not geared for, but are often aptly suited to defeat, the development of the truth" (1975, 1036).

(5.) This idea won partisan endorsement in the 1988 Republican Party platform, under the section on "Controlling Federal Spending," which said, "We will use all constitutional authority to control congressional spending. This will include consideration of the inherent line-item veto power of the president." On November 20, 1989, six members of the House of Representatives introduced a resolution (H. Res. 297) urging Bush to apply such a power. Even though Bush announced in 1992 that he no longer accepted the validity of this argument (see "Address to Republican Members of Congress," Weekly Compilation of Presidential Documents 28 [March 23, 1992]: 512), the Senate took up the cause in 1994 when Senator Arlen Specter (R-PA) introduced a resolution, S. Res. 195, calling on the president to exercise a unilateral item veto in order to create a test case for the courts. (See "Remarks of Arlen Specter on 8. Res. 195," 103rd Cong., 2nd sess., Congressional Record, March 24, 1994, S3751-54.) No bill was reported out of committee during the 103rd Congress, but it engendered the above-mentioned hearings.

(6.) Glazier was a New York securities lawyer who was credited with reviving the idea (Rapp 1988, 1284).

(7.) Glazier's argument was met with skepticism by the Reagan administration (Rapp 1988, 1284-85). In a 54-page memorandum prepared by Charles Cooper, head of Reagan's Office of Legal Counsel, the inherent item veto argument was rejected. See "Memorandum for the Attorney General Re: The President's Veto Power," U.S. Department of Justice, office of Legal Counsel, July 8, 1988. Past presidents have at times exercised considerable veto creativity, as when President Andrew Jackson signed a bill in 1830 but, at the same time, sent a message to Congress (after the House had recessed) that restricted the scope of the bill. President John Tyler did something similar (Fisher 1997, 132-33). President George W. Bush has used presidential signing statements to, in effect, exercise an item veto by announcing in such statements his refusal to implement provisions he deemed unconstitutional or otherwise in violation to his executive powers. This breathtaking power grab by Bush is unprecedented in both quality and quantity: From George Washington to the end of the Bill Clinton administration, presidents have issued fewer than 600 signing statement challenges to aspects of legislation; in his first five and a half years in office, Bush issued more than 800 such challenge statements. See American Bar Association, "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine," August 2006, www.abanet.org/op/signingstatements/.

(8.) The man who presided over the Constitutional Convention, George Washington, offered this definitive comment on the item veto question and existing presidential powers to veto in 1793: "You do me no more than Justice when you suppose that from motives of respect to the Legislature (and I might add from my interpretation of the Constitution) I give my Signature to many Bills with which my Judgment is at variance. In declaring this, however, I allude to no particular Act. From the nature of the Constitution, I must approve all parts of a Bill, or reject it in toto. To do the latter can only be Justified upon the clear and obvious ground of propriety; and I never had such confidence in my own faculty of judging as to be over tenacious of the opinions I may have imbibed in doubtful cases" (Fitzpatrick 1940, 33:94; emphasis added).

(9.) The Federalist Society was formed in 1982. See http://www.fed-soc.org/AboutUs/ourbackground.htm.

(10.) The phrase appears most famously in Alexander Hamilton's Federalist no. 70, in which he wrote that the "unity" of the executive was one of the important advantages of the executive office proposed in the new Constitution. But Hamilton's reference was far more straightforward than that ascribed to it by the unitary theorists: Hamilton was simply comparing the presidency as an office occupied by a single individual with competing proposals of the day for a "plural executive," whereby the office would be composed of two or more people who would function as a kind of executive committee (Hamilton, Madison, and Jay 1961, 423-31).

(11.) For more on the unitary executive's genesis and evolution, see Fisher (2006a).

(12.) Calabresi is a cofounder of the Federalist Society and worked as a lawyer in the Reagan administration.

(13.) See John C. Yoo, "The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them," memorandum opinion for the deputy counsel to the president, September 25, 2001, http://www.usdoj.olc/warpowers925.htm.

(14.) Many in the academic community were harshly critical of the scholarly probity of Yoo's writing (see Liptak 2004a, 2004b).

(15.) Yoo's arguments from his 1996 article also appeared in a subsequent article (with an unintentionally ironic subtitle), "Clio at War: The Misuse of History in the War Powers Debate" (1999).

(16.) In his 1996 law review article, Yoo belittled both the "uniformity" and "harshness" of scholarship on contemporary views of the constitutional war power as exercised by the president (thereby conceding that his views contradicted standard understanding), dismissing it by saying that these traits belonged "only to the most recent [i.e., from the Vietnam era forward] works on war powers" (171).

(17.) In his September 2001 memo, Yoo placed his views in the mainstream, asserting, incorrectly, that "some commentators have read the constitutional text differently [from Yoo]." In a footnote, Yoo cited sources that he claimed support his view that "the President has a constitutional authority to initiate military hostilities without prior congressional authorization." Aside from citing six contemporary law journal articles (including one by him), he cited Corwin's seminal book The President: Office and Powers (1957). Yet Corwin's view of the commander-in-chief power was the opposite of that attributed to him by Yoo. Far from coming from the Constitution, Corwin's analysis demonstrated how ambitious presidential commander-in-chief power claims have grown and evolved over time. Corwin concluded his chapter with the verdict that "the President's power as Commander-in-Chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency" (261). Further, Corwin viewed these developments with alarm. See, for example, Corwin's 1986 article "Of Presidential Prerogative."

(18.) Among the most aggressive statements of the modern strong presidency argument are Jones and Marini (1988), Crovitz and Rabkin (1989), and Eastland (1992). None of these sources offers arguments about the commander-in-chief power on the scale of Yoo. The broader contours of the debate over competing views of presidential power are analyzed in Spitzer (1993, chap. 7) and Tatalovich and Engeman (2003).

(19.) Original intent is the political and constitutional mantra of conservative constitutionalism, from Robert Bork and the Federalist Society to George W. Bush (Fisher 2006, 1234). For an excellent discussion of the fixation with, and limitations of, the original intent or "originalism" approach, see Farber and Sherry (2002, chap. 2).

(20.) Neither Yoo's article, nor any other secondary source, was cited in later administration reports, but Yoo's arguments and evidence were distinctive and repeated in administration documents, and numerous press accounts have attributed these ideas to him (see, e.g., Margulies 2006, 128).

(21.) Consistent with the thesis of his 1996 article, Yoo said in the interview that Congress's only constitutional option to alter the president's actions was through impeachment (Mayer 2005).

(22.) Yoo authored a book in 2005 that expanded on the arguments from his 1996 article and extended his erroneous analysis. For example, he discussed the debate at the Constitutional Convention concerning war powers, quoting the statements of Charles Pinckney, John Rutledge, and James Wilson, all of whom spoke against giving the war power to the president, as Yoo correctly quoted them. Yoo then ended the paragraph with a conclusion that contradicted the quotations appearing in the same paragraph: "At this point in the debate, the Framers seemed to agree that vesting the president with all the 'executive powers' of the Articles of Confederation would include the power over war and peace" (92).

Robert J. Spitzer is the Distinguished Service Professor of Political Science at the State University of New York at Cortland and the author, most recently, of Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (2008).
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Title Annotation:The Law
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Publication:Presidential Studies Quarterly
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Date:Jun 1, 2008
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