A Stitch in Haste

Yesterday I wrote:

Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

Which got me to thinking: If the president's Article II commander-in-chief power is unitary and plenary, then can the president unilaterally bring back the draft? (Recall that at least one presidential candidate has warned that a draft might be necessary.)

One would think, of course, that if the president cannot unilaterally seize steel mills for no other reason than "there's a war going on" then he certainly couldn't conscript people for no other reason than "there's a war going on," right?

However, since the famous Jackson concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), does not appear to be cited anywhere in the recently released "torture memo," such "simplistic" or "archaic" reasoning might not apply in the Yoo-based (as opposed to the sanity-based) jurisprudential community.

Just wondering.

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The leading source for torture memo analysis is undoubtedly Balkinization's Marty Lederman. The alpha-and-omega observation:

The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.

Sounds about right — especially the "October 2003 memo" referenced in Footnote 10 suggesting that domestic military operations are summarily exempt from Fourth Amendment limitations. That should be a fun read.

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For Discussion: Some are pushing for U.C. Berkeley's Boalt School of Law to dismiss Yoo from its faculty, based on academic incompetence (i.e., no one who is so wrong about such basic constitutional issues should be allowed anywhere near law school students). On the other hand: "tenure." Thoughts?