John Yoo's response:

Well I think he suffers from the same fallacy that Ron Paul suffers from, which is, well, because you have to have a limited executive in domestic affairs, that means you have to have an identically limited executive in foreign affairs. And I think that's just simplemindedly wrong, because if you look at the Constitution ... the executive power in foreign affairs is broader, it's just a question of how much broader than it is in domestic affairs. One could go through a lot of this. You could look at the text of the Constitution. But to me the most important thing is if you go back and look at the Federalist papers. And the reason that the Framers put the presidency into the Constitution to start with, it was because the presidency should be there to respond quickly and decisively and speedily to unforeseen circumstances, and they would say clearly, the area where we expect this to happen most would be in foreign affairs.



This is a strange way to frame the disagreement. Is anyone arguing that the president's foreign and domestic powers need to be "identically" expansive or limited? How would one even compare vetoing legislation versus executing laws versus being the commander in chief? Perhaps a unit of presidential power called the Yoo could be created to make comparisons?

My concern isn't whether or not foreign affairs confers a disproportionate number of Yoos on the president. It is that some conservatives are happy to ignore specific limitations the Constitution itself imposes on the presidency. The Constitution gives to the legislative branch the power "to declare war," the power "to raise and support armies," the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Anticipating the problem of U.S. citizens joining up with enemies of the nation, the Constitution defines treason and lays out the specific protocol through which American citizens can be found guilty of it.

And the Constitution's larger logic isn't just to divvy up who does what: it is to check and balance each branch. Despite that fact, Yoo derives his expansive view of a virtually unchecked executive in war from the following passage: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." In this way, he is much like the liberals, routinely denounced by "constitutional conservatives," who find the commerce clause permits most anything, and that the Constitution contains a right to privacy that covers abortion, but not smoking marijuana cigarettes in one's home, or selling one's kidney, or not buying health insurance, which requires giving private corporations a detailed account of one's medical history. They too cite precedent and practical need in an attempt to justify their position. Unlike the Tea Party, they don't claim to being strict constructionists, originalists, or "constitutional conservatives." They argue that the Constitution is a living, breathing document. "Constitutional conservatives" ridicule them for it, but don't ridicule Yoo for stretching the document as far.