The nutty legal syllogism that powers the Bush administration

[struggle4progress]

When Less Is More
The nutty legal syllogism that powers the Bush administration

By Dahlia Lithwick
Posted Wednesday, March 21, 2007, at 6:12 PM ET

At first it sounds like a defensible argument: The power to do something substantial includes the power to do something less so. If the president has the power to appoint ambassadors, for instance, he probably also has the power to invite them over for dinner. If I have the legal authority to control and care for my son, this probably includes the power to choose his T-shirts ...

... in an interview given by John Yoo to the British weekly Spectator .... Yoo, author of the infamous "torture memo" that came out of the Office of Legal Counsel in August of 2002 and became public in the summer of 2004, continues to defend the legality of the president's right to torture suspects .... Yoo's argument rests largely on more of this same "greater-power-includes-the-lesser-power" analysis. As he explains to his interviewer, "Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them." He goes on to say, "I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing." ...

... at bottom this logic is insane. Imagine if that sort of syllogism were really an acceptable form of legal analysis: Professor Garrett Epps at the University of Oregon law school wonders whether the president's greater power to pardon might somehow give him the "lesser" power to direct a verdict of acquittal in criminal trials. Duke University's Erwin Chemerinsky posits that since the government can draft people, it can maybe just exercise its lesser power to keep them from criticizing the war. And Harvard Law School's Laurence Tribe observes: "You might as well argue that because the Constitution permits California to shut down the state-run law school where John Yoo teaches, the Constitution would permit it to choose the 'lesser' step of just firing professor Yoo for his outlandish views." ...All of which explains, I imagine, some of the nuttiest legal positions taken by the president over the past years. If you assert absolutely vast "greater" powers, it's cheap and easy to swallow up those pesky little "lesser" ones. I don't know how much longer this trope will have currency for the Bush administration. But I would suggest that their greater power to offer this as a serious legal argument does not trump our lesser power to laugh at it.

http://www.slate.com/id/2162374/

[Vinnie From Indy]

1. Yoo's idea about greater and lesser powers is nonsense

If the state has the power to execute, then by Yoo's account we are all potential targets of the lesser power of torture.

[baldguy]

2. The Presidents' guest list doesn't require Senate confirmation.