Hoisted from Comments: John Yoo as a Sportswriter Who Did Not Mention the Red Sox

Hoisted from Comments: Rea says:

Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong: "Leitner's analysis is that Yoo did nothing wrong because he was acting in "good faith", like a tax adviser who gives incorrect advice."

Problem is, Yoo, ignored the Youngstown case in formulating his advice. The Youngstown case, as anyone with the slightest passing familiarity with constitutional law knows, ought to be the very first case anyone looks at when considering the extent of the President's powere as Commander in Chief of the armed forces. That sort of mistake can't happen in good faith. If he'd written up an argument that Youngstown was inapplicable, or wrongly decided, he might be able to make a plausible claim of good faith, but not even to mention it?

What would you make of a sportswriter who did a preseason analysis of the 2008 baseball season, and didn't mention the Red Sox? Not, predicted they wouldn't do well, but simply didn't mention them?

Comments

[Ugh]

And John Yoo clearly knows about the Youngstown case, he taught it to me in Con Law I in the spring of 2000.

Strangely, he somehow omitted his theory of POTUS as King that semester, as if, somehow, he might not have believed it. Huh.

[Barkley Rosser]

For us non-lawyers, what does the Youngstown case say, please?

[Roger Bigod]

IANAL, but I've read Youngstown, aka the Steel Seizure Case. It came down during the Korean War when there was a threatened strike that would have shut down the steel industry. So Truman seized the mills on grounds involving the President Constitutional power. He lost the case and immediately handed the mills back. The abstract point of the decision isn't clear (common law and all that), but it definitely says that there are Constitutional limits on the Presidential War Power and that the Court can draw the line.

I have the impression that any law student writing Yoo's memo as an exercise would have to mention Youngstown and figure out how to distinguish it away. Disposing of it convincingly would be worth extra points. Failure to mention it is points off. And Yoo has to know Youngstown; it's a leading case for separation of powers issues. All I can think of in his favor is that the infamous Torture Memo is part of a batch, and he'd dealt with Youngstown at length elsewhere.

[rea]

"For us non-lawyers, what does the Youngstown case say, please?"

See here:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=343&invol=579

While the majority is badly frangmented, the concurring opinion of Justice Jackson has proved most influential in the 50-some odd years since the decision, simply on the basis of its common-sense reasoning.

[jamzo]

"Leitner's analysis is that Yoo did nothing wrong because he was acting in "good faith", like a tax adviser who gives incorrect advice.""

"when a tax adviser gives incorrect advice one does not wonder about the tax advisors "good faith",

the relative faith-baseness of the advice "good faith" or "bad faith"

one wonders whether the incorrect advice is a signal of a larger problem concerning the tax adviser's
knowledge of tax law and competence to give tax advice

giving yoo the benefit of "good faith" as opposed to "bad faith", one has to wonder if his "incorrect advice" raises questions about his constutional scholarhip, his "competence" to give constitutional advice

what matters is whether yoo's actions were made on the basis political attitude or as a result of limited knowledge of constitutional law

one would think yoo's defenders would argue that he was entitled to have his interpretation regardless of its political meaning

i disagree with his intrepretation but i do not think he acted in "bad faith"