Yoo What?

I recently wrote about the sad state of the Philadelphia Inquirer, noting the financial and management decisions that seem to be contributing to its decline. I also observed that I rarely read the opinion page of the Inky anymore, after it started carrying regular contributions from the likes of RickSantorum. See Inquire No More.

Someone pointed out a recent opinion piece, which confirms my view of the editorial page. Inexplicably, it has an op-ed piece by disgraced former Office of Legal Counsel lawyer JohnYoo, with his outlandish rubbish now sullying the pages of the Philadelphia paper. Yoo is one of the creators of the unitary executive theory -- the "All Power to the Pres" theory of governance. The End is Near?. I wrote about Yoo's version of an imperial presidency on several occasions. See, e.g., Yoo Who. He was also a proponent of justifying the use of torture, see The Horror of Yoo.

In his latest nonsense , Yoo argues that the Supreme Court has exceeded its authority by deciding issues of constitutional import in a manner that does not give sufficient weight to the President -- or even Congress. In Supreme Court grabbed more power in recent term, he states:

The U.S. Supreme Court's 2007-08 term had something for everybody. Liberals came away with a victory on the cases testing the rights of Guantanamo Bay detainees. Conservatives prevailed with the court's first defense of the individual right to own and bear firearms. Liberals applauded the prohibition on the death penalty for the rape of minors; conservatives liked the overturning of a campaign-finance law.

But the biggest winner by far was the court itself. Slowly but surely, the justices have expanded their power to make many of our society's fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court's dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges.

The decisions announced this summer only reaffirm the court's power.

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Some might prefer that judges still make these decisions because they hear cases in a formal, rational setting and issue long opinions explaining their reasons. Nonetheless, the courts are far from ideal as policymakers: They have great difficulty trading off competing values in these sensitive areas; they are insulated from the political process; and their only access to information comes to them through the narrow lens of a lawsuit.

When the federal judiciary decides national policy on these issues, under the guise of interpreting the Constitution, it prevents the people from making the decisions for themselves.

Imagine that! The Supreme Court is doing a power grab -- by deciding cases properly brought before it through the legal process. The fact that the Justices are doing what they have done since the inception of our system of government, reviewing the actions of the President and the laws passed by Congress to ensure that they do not exceed the powers granted under theConstitution causes Yoo great concern. For Yoo , anything that impinges on the power of the President is illegal, since he is the Dictator-in-Chief (at least until the President is a Democrat).

I'm not sure of the role of the Courts under the warped world view of Yoo. I suppose, like Congress, the Court has a lesser role to carry out the dictates of the President and ensure that the citizens follow the laws as set forth by the Commander in Chief. But they no longer have the last word, according to Yoo:

This is not to deny that there are moments that we need the courts to defend individual liberties against unconstitutional actions by the government. But those moments may not be as ever-present as the federal courts today may think, and the price is not just that the courts may get it wrong, but that the expansion of their powers will sap our energies of republican self-government.

"If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," Abraham Lincoln argued in his first inaugural address, "the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."