John Yoo's problem with Elana Kagan

John Yoo has an op-ed piece in the New York Times today that takes Elana Kagan, President Obama's nominee to replace outgoing Supreme Court Justice John Paul Stevens, to task for her limited view of presidential powers. I have not seen enough to know whether I would vote to affirm Kagan's nomination were I a Senator (ah, the hubris runs deep this day...), but given John Yoo's constitutionally unanchored advocacy of a unitary executive, his professed problems with her view of inherent presidential authority is a big plus for her, in my opinion.

We have discussed the theory of the unitary executive on this blog before, and there is nothing wrong with that theory, per se. Indeed, it actually has a lot going for it as an interpretative grid for Article II. The problem, however, is with John Yoo's hijacking of the theory to push his extreme view of the presidency as a monarchical law unto itself. When Yoo argues that the President can commit the nation to war without congressional authorization, he runs into a constitutional wall. And when Yoo suggests that the President ignore laws that interfere with his "inherent constitutional powers", he has entered into a fantasy land where words on the constitutional page can not mean what they seem to imply.