Copyright (c) 2009 All rights reserved. http://works.bepress.com/johnyoo Recent documents in John C Yoo en-us Sun, 31 May 2009 07:36:18 PDT 3600 http://works.bepress.com/johnyoo/43 http://works.bepress.com/johnyoo/43 Mon, 08 Dec 2008 14:57:19 PST John C. Yoo Popular Press http://works.bepress.com/johnyoo/42 http://works.bepress.com/johnyoo/42 Mon, 08 Dec 2008 14:55:35 PST John C. Yoo Popular Press http://works.bepress.com/johnyoo/41 http://works.bepress.com/johnyoo/41 Tue, 19 Aug 2008 18:35:05 PDT The U.S. Supreme Court's 2007-08 term had something for everybody. Liberals came away with a victory on the cases testing the rights of Guantanamo Bay detainees. Conservatives prevailed with the court's first defense of the individual right to own and bear firearms. Liberals applauded the prohibition on the death penalty for the rape of minors; conservatives liked the overturning of a campaign-finance law. But the biggest winner by far was the court itself. Slowly but surely, the justices have expanded their power to make many of our society's fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court's dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges. John C. Yoo Popular Press http://works.bepress.com/johnyoo/40 http://works.bepress.com/johnyoo/40 Wed, 16 Jul 2008 15:50:45 PDT This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations. We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role of the courts and the executive in foreign affairs. This functional approach suggests that the executive branch can more effectively achieve the purpose behind the ATS. Critics of this approach have argued that a jurisdictional approach to the ATS would disrupt American foreign relations by allowing the states, rather than a single federal judiciary, to make and enforce CIL. The Court's recent decisions, however, address this concern by permitting presidential declarations of international policy to preempt state law. Thus, CIL could continue as part of the common law of the states enforceable in state court or through diversity jurisdiction in federal court subject to federal preemption by the President. John C. Yoo International Law http://works.bepress.com/johnyoo/39 http://works.bepress.com/johnyoo/39 Wed, 16 Jul 2008 15:45:24 PDT This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment cases. This is not to deny that revived judicial security for states' rights has become the signature issue of the Rehnquist Court. We examine whether the subject deserves the enormous importance that many, including a number of commentators and several Justices, have given it. We conclude that it does not. A series of doctrines, both internal and external to the Eleventh Amendment, allow the federal government to achieve its policy objectives. Preventing private plaintiffs from suing states for retrospective money damages poses at most a minor barrier to national goals when damages actions against state officers and injunctive actions realistically against state governments are readily available to accomplish all federal ends, and when the national political branches may widen the liability of state officers, or completely overcome sovereign immunity by joining a private lawsuit or using other federal powers such as the Spending or Treaty Clauses. Overstatement of the effects of the Eleventh Amendment cases has obscured more interesting questions about the subject. If state sovereign immunity has such little practical effect, why has the Court invested so much of its time and resources in the Seminole Tribe line of rulings? We suggest that the Court's real lodestar here is not federalism, but separation of powers. That is, perhaps the Court is not so much interested in protecting states as it is (a) in centralizing the enforcement of federal law in the executive branch and (b) in pressing Congress to make clear cost-benefit decisions on the use of lawsuits to enforce federal policy. Seminole Tribe and its progeny have the effect of giving the administration greater discretion to decide whether states should be liable for money damages for violations of federal law, thus increasing democratic accountability, and of prodding the legislative branch to essentially pay the states to waive sovereign immunity. John C. Yoo Constitutional Law http://works.bepress.com/johnyoo/38 http://works.bepress.com/johnyoo/38 Wed, 16 Jul 2008 15:41:45 PDT This piece criticizes U.N. proposals to reform the international legal rules on the use of force. While they properly identify threats to international peace and security as arising outside the context of great power warfare, they make it even more difficult for nations to address these new challenges. They codify a rule that gives the Security Council complete authority over all uses of force short of national self-defense, rather than providing nations with flexibility. They expand the size of the Security Council, which will only aggravate the body's collective action troubles in authorizing force. Reform should begin by modifying the rules to produce higher levels of desirable uses of force. If we want the international legal system to address rogue nations, international terrorism, and WMD proliferation, then we must reconceive the imminence doctrine to take into account expected harm of an attack. If we want to increase, rather than suppress, military intervention that will produce positive externalities to the international system by containing rogue regimes, by flushing out international terrorist groups, or by ending human rights disasters, we should adopt an international public goods approach to thinking about the use of force. The international legal system ought to promote, rather than deny, uses of force to solve these problems. John C. Yoo International Law http://works.bepress.com/johnyoo/37 http://works.bepress.com/johnyoo/37 Wed, 16 Jul 2008 15:38:13 PDT Why are some Presidents great and others not? Does their attitude toward the Constitution have anything to do with it? What do legal scholars have to contribute to presidential studies? This paper reviews and uses data from the book "Presidential Leadership" to suggest possible relationships between presidential success and their approach to constitutional interpretation. It argues that the formalist versus functionalist debate over the separation of powers has reached a stalemate, and that constitutional law can gain by study of political science approaches to the Presidency. It also suggests that presidential studies, which views reliance on a president's constitutional powers as a sign of failure, can gain new insights by examining a President's use of his formal legal authorities. John C. Yoo Constitutional Law http://works.bepress.com/johnyoo/36 http://works.bepress.com/johnyoo/36 Wed, 16 Jul 2008 11:55:48 PDT The rise of China raises questions about the future of international law. The current system of international law depends largely on American hegemony, along with the dominance of western European states that share America's general goals and values. It is possible that China in the future will not threaten this system, either because China comes to share these goals and values or because China breaks apart. But the more likely scenario is that China will compete with the U.S. for regional and then global influence. We argue that in such a world the current system of international law will not be viable, and that future international law will resemble either the nineteenth century balance of powers system, or the cold war bipolar system. John C. Yoo International Law National Security http://works.bepress.com/johnyoo/35 http://works.bepress.com/johnyoo/35 Wed, 16 Jul 2008 11:46:49 PDT The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference. In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. If followed in the future, the Hamdan Court's refusal to give deference to the executive branch and to require a congressional clear statement prior to any executive action will further disrupt the traditional system of political cooperation between Congress and the President in the conduct of wars. It will raise the transaction costs for policymaking in wartime without any significant benefit and potentially at large cost. Congress's recent enactment of the Military Commission Act of 2006 may be understood as an attempt to prevent future courts from applying Hamdan's new clear statement rule by strictly limiting judicial review of executive wartime decision. John C. Yoo Constitutional Law National Security http://works.bepress.com/johnyoo/34 http://works.bepress.com/johnyoo/34 Wed, 16 Jul 2008 11:31:31 PDT Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status of federal law, like the Constitution, statutes, or treaties, it has no binding effect on the President through the Take Care Clause. Allowing international law to limit the President's exercise of his constitutional powers also runs counter to the constitutional structure, primarily by undermining the traditional understanding of the allocation of the foreign affairs power between the President and Congress. Raising international law to the status of international law would transfer lawmaking authority to a vague, indeterminate process that is not subject to popular sovereignty. Examining important moments in American military and diplomatic history illustrates the precedence of the President's constitutional authority over international law. Examples including the Civil War, the World War II bombings of Japan, the Cuban Missile Crisis, and the Kosovo War show that even if American wartime conduct may have been inconsistent with international law, or at least stretched international law, no one has plausibly argued that these presidential decisions violated the Constitution. Indeed, these moments suggest the serious harm to American national security which might result if we were to read the Constitution to impose international law as a constraint on legitimate exercises of the President's Chief Executive and Commander-in-Chief powers. John C. Yoo Constitutional Law International Law National Security