John Yoo, America's favorite war crimes cheerleader, stands by his previous statement that the president has the unilateral power to order a nuclear strike without congressional authority. How happy it makes me, that he's carefully nurturing an entire new crop of amoral and lawless constitutional lawyers! (Scott Horton wonders if there wasn't a quid pro quo in the Yoo torture memos.)
First of all, Yoo’s claim that Congress could cut off funds for a nuclear attack or impeach the President after he makes the decision to launch nuclear weapons does little to prevent a nuclear attack. Even assuming that a supermajority of senators supported taking swift action against a rogue President, the fact that Congress subsequently cut of funding for nuclear launches or removed the President from office would be little comfort to the tens of thousands of people already killed in the attack. Yoo’s solution amounts to shutting the barn door long after the horse has fled.
More importantly, Yoo misrepresents the law. As far back as 1804, a unanimous Supreme Court held in Little v. Barreme that Congress has sweeping authority to limit the President’s actions in wartime. That case involved an Act of Congress authorizing vessels to seize cargo ships bound for French ports. After the President also authorized vessels to seize ships headed away from French ports, the Supreme Court held this authorization unconstitutional on the grounds that Congress’ decision to allow one kind of seizure implicitly forbade other kinds of seizure. More recently, in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court held that the President does not have the power to unilaterally set military policy (in those cases with respect to detention); he must comply with statutory limits on his power. Taken together, these and other cases unquestionably establish that Congress has the power to tell the President “no,” and the President must listen.
John Yoo is a moral vacuum, but he is also a constitutional law professor at one of the nation’s top law schools and a former Supreme Court clerk. It is simply impossible that Yoo is not aware of Little, Hamdi and Hamdan, or that he does not understand what they say. So when John Yoo claims that the President is not bound by Congressional limits, he is not simply ignorant or misunderstanding the law. He is lying.