A theme during last week’s Constitutional Connections Summer Institute was the constitutional role of the presidency. This theme – which will be revisited by Will Harris October 9th – 11th and David Adler February 4th – is the subject of a give and take between John Yoo and Louis Fisher. This discussion has clear contemporary resonance: Berkeley’s Yoo is a key backer of the expansion of executive powers post 9/11; Fisher (of the Library of Congress) has been critical of that expansion. Interestingly, Yoo’s article and Fisher’s response both focus on Andrew Jackson and The Bank War – the subject of Paul Finkelman’s upcoming (9/25) talk at the ESD.
Another pairing is the two on Jefferson and executive power, also on the Legal History Blog. Fisher ends this one with the following:
In reading this article, I wondered if John Yoo decided to look to earlier Presidents to determine whether their concept of the office might justify what President George W. Bush did after 9/11. Perhaps my suspicions are groundless, but the quote above did not help, nor the following: “Madison’s low performance is attributable in part to his narrow view of his constitutional powers as President.” Nothing in Jefferson’s presidency lends support to the view widely circulated in the Bush administration that the President is endowed with inherent powers in national security that trump statutes, treaties, judicial decisions, and the Constitution.
The Legal History Blog continues this interesting conversation on Jefferson with input from Jeremy Bailey, author of Thomas Jefferson and Executive Power.