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.
Lately we're hearing an awful lot of this greater-power-includes-the-lesser-power analysis. As the president recently noted: "I have broad discretion to replace political appointees throughout the government, including U.S. attorneys. And in this case, I appointed these U.S. attorneys and they served four-year terms." He claims that his power to appoint all 93 U.S. attorneys includes the power to fire them for any reason. Or, as his supporters routinely argue, since Bill Clinton fired all 93 U.S. attorneys when he took office and no one peeped, the power to fire all 93 when you take office must include the lesser power to fire only eight midterm.
Marty Lederman at Balkinization points to a second instance of this kind of thinking this weekend, in an interview given by John Yoo to the British weekly Spectator, and reprinted in the Montreal Gazette. 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. (The OLC subsequently withdrew the memo.) 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."
Hmmm. This argument has some legal force behind it, at least by analogy. In 1986, the Supreme Court said in Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.'' In other words, wrote Chief Justice William H. Rehnquist for the majority, if Puerto Rico could do away with gambling altogether, it could certainly limit—without running afoul of the free-speech laws—advertising about gambling. Like I said, it sounds sort of logical. Except, as Justice John Paul Stevens noted in his dissent in that case, whether or not the state has the power to outlaw gambling, "The First Amendment surely does not permit Puerto Rico's frank discrimination among publications, audiences, and words."
The court hasn't exactly rushed to embrace this reasoning from Posadas in subsequent cases. And that's probably because—paraphrasing Stevens' dissent here—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."
Or—as my 3-year-old patiently explains to me every once in a while—the greater power to stay up past his bedtime and watch movies clearly includes the lesser power to eat the entire box of Oreos.
The greater-than-lesser-than argument is nothing more than a "debater's point," says the University of Virginia's Jody Kraus. It assumes that the speaker has some basis from which to claim that the lesser power is, indeed, well, lesser. You can certainly say that the power to ban speech is lesser than the power to ban gaming. Or you could say the opposite. I, for one, feel a lot more strongly about my right to speak than my right to split eights and aces. So, by what measure, other than Yoo's assertion, is the power to water-board someone "lesser" than the power to kill? And if it is, why does Yoo draw the line at water-boarding rather than eye-gouging which is, by his logic, still better than death? You can similarly claim, Kraus notes, that since the state has the greater power to execute criminals, it also has the "lesser" power to "stick him in oil, just for a minute or so."
The real trick, as Jack Balkin of Yale Law School points out, is convincing your listener that the same rules and norms that govern the "greater" category also govern the "lesser." You need to convince them that if the state is allowed, for instance, to execute criminals, any laws regarding cruel and unusual treatment simply go away. In the case of the U.S. attorney firings, that would mean insisting that the same rules and norms that govern presidential authority over U.S. attorney appointments govern everything to do with the Justice Department's oversight of individual (partisan, political) criminal investigations and prosecutions. You would similarly need to insist that the rules that govern the president's power to kill someone during wartime also govern his authority to torture a suspect during an undeclared war on terror. Professor Dave Glazier makes this point very clearly at the blog Balkinization.
So, can you claim that the laws of war somehow vaporize the laws governing everything else that may be incident to war? Yoo does seem to contend just that. His argument appears to be that executive power in wartime vaporizes the laws governing virtually everything else. And if that's truly your starting point, I suppose all the other constraints imposed by those other "lesser" laws—from being required to obtain a FISA warrant to having to give a lawyer and a court date to Americans picked up in Chicago—would evaporate as well.
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.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.