John Yoo (of Bush 43 administration fame) has penned a rather counterintuitive editorial this weekend on the future of outgoing Attorney General Eric Holder. In it, he begins by building a laundry list of complaints about some of the worst moments of Holder’s tenure as AG. (There’s really no need to repeat them here, as regular readers are already far too familiar with the subjects in question.) But after that, he switches to the subject of Holder’s failure to hold, in general terms, to his constitutional duties.
But worst of all was not Holder’s political or prosecution choices, but his refusal to obey the Constitution. The AG is the nation’s law enforcement officer, second only to the president. His most important and unique job is to interpret and enforce the Constitution for the executive branch. On Holder’s watch, the Obama administration has refused to carry out the laws, as required by the Constitution’s Take Care Clause, in areas ranging from Obamacare to immigration to welfare. The only exception to the president’s duty to carry out the Acts of Congress is if the laws themselves are unconstitutional and hence violate the higher law. But in all of these cases, the Obama administration knew that these laws raised no constitutional problems — it merely disagreed with the policies, even with laws that it supported during enactment.
Fair enough. But that brings Yoo to the premise of his column, which is to say that Holder will “regret” these actions. How exactly would that work?
Holder and his supporters, who know these decisions violate the Constitution but kept silent because of their partisan support for Obama, will rue their abuse of presidential power. Future presidents will be able to change tax rates or refuse to prosecute political supporters under these theories. Future conservative presidents may use the same claim to start dismantling the overgrown welfare state without the assent of Congress. We happily see Holder go, but he will have more regret not just looking back at the controversies that wracked the Department of Justice under his care, but when he ponders the future when conservative AGs turn his precedents against the bloated welfare state that he loves.
When I first looked at this article, I thought perhaps that Yoo was implying Holder either already knew of the shortcomings in his performance, or would realize them in the fullness of time and come to feel some remorse. Were that the case, I would have to disagree. I believe that Holder went into this job with eyes wide open and charted his course to accomplish the goals that he and Barack Obama had set out. When conditions arose which required him to deviate significantly from his role as Lawyer of the People he did so without hesitation, and I honestly doubt that he will ever regret that.
But to Yoo’s actual point, I suppose it’s possible. I would like to think that future AGs (of either party) would learn from this negative example and steer a straighter course. But history doesn’t make me hopeful. When past presidents have seized increasing amounts of executive power, those who followed did not recoil in shame… they continued the expansion. And if Holder sails off into the sunset with no accounting for his actions, the AG office will sadly continue to morph into more and more of a political tool for the party controlling the White House. Even if that doesn’t cause any regret for Eric Holder, it should bring some sadness for the rest of us.