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January 10, 2010

Dawn Johnsen, John Yoo, and the Start of the Spring Semester

Posted in: BushCo,Constitution,DOJ,FISA,Justice Department,Legal,OLC,Torture,War on Terror

The clock on Indiana University-Bloomington's campus says it's time to approve Prof. Johnsen (photo: alykat via Flickr)

The clock on Indiana University-Bloomington's campus says it's time to confirm Prof. Johnsen (photo: alykat via Flickr)

Life must be hell for not just Dawn Johnsen but also her Dean, Lauren Robel, and the students at IU’s Maurer School of Law. Johnsen was announced as Obama’s nominee to be head of the DOJ’s Office of Legal Counsel on January 5, 2009, and since then she has waited.

On Christmas Eve, the GOP refused a unanimous consent request to allow her nomination to be carried over into 2010 (see bmaz for a post-mortem on the nomination), and so Obama is forced to renominate her if he still wants her as part of his administration.  David Dayen reports that Obama intends to do just that, once the Senate reconvenes later this month. But all that does is re-start the confirmation process.

So she continues to wait.

Meanwhile, life goes on at Maurer.

Johnsen is still on the faculty, but if you are her dean, do you schedule her to teach? If so, what classes? If not, how else can you use her talents? When students sign up for her courses, what happens if she suddenly gets confirmed? If you are a student, do you sign up for her class only to have it canceled, and then it’s too late to get into another good course that filled up because you signed up for Johnsen’s?

In poking around the school’s website, it appears that they have limited her teaching to electives only, so that if something has to get canceled or a substitute instructor takes over in mid-semester, it isn’t as disruptive as it would be for a core class. Thus, on her faculty bio page it says she teaches Con Law I and II, but in the course listings she hasn’t been shown as an instructor for those courses for Spring 09, Fall 09 or Spring 10. Instead, last fall she taught Seminar in Constitutional Law: Sexuality, Reproduction and the Law, and starting this week, she’ll be teaching Seminar in Constitutional Law: First Amendment and also L736 Constitutional Law Seminar: Congress, the Presidency and the Courts.

Here’s the description of that last course, which meets on Tuesday afternoons:

This seminar examines the constitutional allocation and separation of powers among the three branches of the national government, with a particular focus on the relationship between the President and Congress. Specific topics may include: What are the relative powers of the President and Congress in the areas of foreign affairs, military action and national security? May the President refuse to enforce unconstitutional laws? May Congress enact legislation based on constitutional views that differ from the Supreme Court’s constitutional views? What are permissible forms of congressional oversight of the Executive, including limitations on the appointment and removal of executive branch officers, the legislative veto, the Independent Counsel Act, and presidential impeachment and removal? When may the President assert executive privilege and refuse to comply with requests for information from Congress or the courts? When are Presidents immune from civil lawsuits and criminal prosecution? (3 cr.)

The syllabus for the Spring 2010 course isn’t online, but the last time she taught the course, it looked like this [pdf]. She’s got the same main textbook listed for this time around, and it looks like quite a meaty course. (In fact, when she taught this before, the assignment for the first day included “Johnsen Senate testimony on “Secret Law” (especially the appendix, “Principles to Guide the Office of Legal Counsel”)” [pdf]

Meanwhile, out west at Boalt Hall, John Yoo is teaching “Constitutional Design and the California Constitution.”  Better that, I suppose, than anything having to do with the US constitution — although things are such a mess in CA right now that I could be wrong.

Curiously, he has no books listed for the course, and classes start Tuesday. Maybe he’s been busy prepping for his book tour stop/murder boards with Jon Stewart tomorrow night. As the videos at the link illustrate, Stewart is rather familiar with Yoo’s work at OLC. But Stewart only has a small amount of time to work with, so he’s going to have to pick his questions carefully.

He could, for instance, ask the questions Johnsen poses to her students (quoted above), but those would be softballs for a seasoned OLC guy like Yoo. Besides, we already have a pretty good idea of his answers: the President has the power to command and congress the power to obey; yes; who cares, because the President can ignore them both; none; whenever he damn well feels like it; and always (at least if you are a Republican).

Oh, well. But if Stewart took a look at Johnsen’s congressional testimony assigned for the first day, I’ll bet he could find some interesting questions there to pose to Professor Yoo.

Something tells me that the students at Maurer and at Boalt Hall are going to be watching The Daily Show tomorrow night, which ought to make the first class sessions on Tuesday rather interesting.

photo h/t alykat


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