Book review of John Yoo's 'Crisis and Command'

By Jack Rakove
Sunday, January 10, 2010


A History of Executive Power from George Washington to George W. Bush

By John Yoo

Kaplan. 524 pp. $29.95

John Yoo was a significant participant in the Bush administration's war on terrorism. As a deputy assistant attorney general in the Justice Department's Office of Legal Counsel, he wrote many of the legal briefs on which the Bush administration relied, including, famously, a number of memos relating to the treatment of detainees at Guantanamo Bay.

Since returning to his academic position at the University of California at Berkeley law school, he has published three books. One dealt with the Constitution's allocation of authority over war and foreign relations among the branches of government, with a strong emphasis on the founding fathers' vision. The second was a memoir of his involvement in the war on terror. Now comes "Crisis and Command," which is a vigorously argued and, in some ways, deeply unsettling account of the necessary superiority of the presidency in our constitutional scheme. (Yoo, I must add, is a professional acquaintance of mine across the San Francisco Bay; we have appeared on panels together, and though I disagree in key respects with his positions, his arguments merit attention and respect.)

Yoo's account has a deceptively simple theme: At critical moments, the decisive exercise of power by the president has been the driving force in American history, and neither Congress nor the Supreme Court has ever rivaled the presidency in its capacity to direct how the nation responds to unexpected challenges to its essential interests. Efforts to devise new ways to cabin our presidents -- the best as well as the mediocre and mendacious, such as Andrew Johnson and Richard Nixon -- risk restraining exactly the kind of initiative we want the executive to mount.

In the contemporary battles of constitutional theory, Yoo is decidedly a "departmentalist." Like Andrew Jackson, whom he much admires, Yoo is a firm believer that it is better to let each of the departments of the government stake its claim and fight out whatever conflicts ensue. He is no friend of the modern proposition that the Supreme Court, whose members are the beneficiaries of intensely political appointment, is uniquely qualified to resolve all serious constitutional questions.

Given Yoo's strong conservatism, it would be easy for liberals to dismiss "Crisis and Command" as one more venture in a hackneyed debate. That would be a big mistake. True to form, Yoo does use his two brief final chapters to defend the George W. Bush legacy and drive progressives nuts with the idea that President Obama has some strangely reactionary ideas struggling to control his brain. But the heart of the book is the highly favorable treatment that Yoo extends to five great presidents -- all of whom should rank high on any liberal's list of admirable leaders: Washington, Jefferson, Jackson, Lincoln and Franklin Roosevelt -- followed by a broad survey of the Cold War presidents from Truman through Reagan.

This is a deeply serious history of the presidency, sometimes selective in its emphasis, but always provocative and thoughtful. The recurring theme is how well the republic was served by the initiatives these leaders took.

In two early chapters, Yoo briefly surveys the origins of the presidency, tracking historians (such as myself) who have explained how the anti-executive biases of the first constitutionalists of 1776 gave way to the fresh thinking of 1787. These chapters could have been better argued. There are some errors of fact and, more important, Yoo owes readers a better account of the ambivalence about executive power that still surrounded the presidency after its establishment. It was the least republican office in the new government, and the one position that most of the Constitution's framers, with the exception of Alexander Hamilton, struggled to comprehend. How it would operate once Washington served a term or two was a mystery that no one in 1789 could decipher.

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