Thursday, October 19, 2006

Yoo: Congress to courts: Get out of the war on terror Yoo: Congress to courts: Get out of the war on terror

John Yoo, probably the most hated (now former) Bush Administration attorney, suggests today in a WSJ article that:Congress to courts: Get out of the war on terror. Yoo is, of course, one of the prime movers behind the Administration taking a strong stand on its Executive powers. Nevertheless, he does make a good point here, that the Judiciary ignored a lot of its own precedent to significantly change the Rules of War, as they apply to the U.S., in, particlar, the recent Hamden case, and that Congress and the President have moved to rein that branch in with the just enacted detainee bill.

But he also brings up something that is not taught in civics classes. There, you are taught that the power that the other branches have over the Judiciary is through appointment and impeachment. But this is another: justisdiction stripping. The Judiciary, with a couple of notable exceptions, has just as much power as it is given by the other two branches through how much jurisdiction it is granted. In other words, they mostly control what cases the Judiciary can hear through what jurisdiction they grant it. And in this case of Judicial overreaching, they stripped that branch of some of it, thus reducing its power.

One other facet that this illuminates in Separation of Powers is that this looks like an attempt at power grabbing on the part of the Judiciary. The other two branches (partly thanks to Yoo's advocacy when a member of the Administration) were fighting over their respective positions and power, and the Judiciary, appearing to mediate there, attempted to grab more for itself. But the other two, until now squabbling, branches viewed this as an overreach, ganged up on the Judiciary, and pushed back.

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