Does the Greater Always Include the Lesser?
In short, no :
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."