Obama’s Professor Yoo

Tibor R. Machan

Don’t believe it for a moment. The American Left, as a whole, does not support civil liberties. All that protestation of about Bush and Cheney’s allegedly unconstitutional expansion of presidential powers was just a bunch of empty hand-waiving. The New York Times has made it abundantly clear now that the recent protests by the Left against Professor John Yoo’s efforts to help former president George W. Bush to garner extensive presidential powers had nothing to do with opposing expanding governmental power.

When Mr. Bush and his team wanted the power to deploy water-boarding techniques against suspected terrorists or those who could provide information about such people, those on the American Left were outraged. How dare this law professor offer advice to the Bush White House about what legal reasoning to use so as to make a convincing case for the powers the president and company believed they needed so as to fight the war on terrorism effectively and possibly successfully? Of course, Bush & Co. may very well have been grasping for what is constitutionally impossible but never mind that. If a legal whizz could make the case for such powers, so be it. Lawyers are supposed to pull rabbits out of the hat for their clients, never mind truth, logic and the U. S. Constitution.

Now it is evident that as so often before, the American Left was quite hypocritical about its outrage at the shenanigans of Bush & Co. There was nothing about this Republican Administration’s policies that the Obama Administration could consistently disapprove of. As The New York Times made clear in its Tuesday, July 20, 2010, editorial in support of Elena Kagan's nomination to the Supreme Court, Professor Kagan did exactly what Professor Yoo was being accused of, namely, give advice to various parties in support of dubiously expanding the powers of the federal government.

In particular, Professor Kagan had urged that several proposed pieces of legislation that would help the government expand its powers over the American people be tied cleverly to the interstate commerce clause of the U. S. Constitution even though the substance of the position being advocate

had nothing at all to do with interstate commerce. But, as Professor Kagan made clear, it could be made to look like it did and therefore Congress could gain the power it sought so as to acquire the legal power to override the liberties of citizens who did not want to be regulated, ordered about, forced to comply with Congress’ wishes.

The New York Times, of course, hailed Professor Kagan’s efforts to rationalize Congress’ powers under the interstate commerce clause as a case of helping to promote various welfare statist and social democratic government measures, ones that a strict application of the philosophy of limited government, the sort the American Founders advocated, would not justify. Indeed, there is even a credible argument to the effect that the interstate commerce clause’s use of the term “regulate” had nothing to do with the kind of meddling in the free market that the American Left supports. (Instead, the Constitution meant only to promote the regularization of commerce between the new states of a united country!)


But however one ultimately comes down on that issue, one thing is for sure. The Obama Administration and its cheerleaders in the legal profession do not have anything against increasing the powers of government. That’s not what these folks dislike about efforts to justify water boarding. It is only that this particular power of government might be used for purposes, such as catching terrorists, they do not approve of. If the power is used to regiment people’s economic affairs, go for it!