Debate On The Powers That The Congress Has Given Up

[Annie]

http://www.legalaffairs.org/webexclusive/debateclub_presidentialpower1105.msp

Critics of the Bush Administration have attacked the president for a host of unilateral actions he has taken. The president, critics say, took the country into two wars without congressional approval, detained suspected terrorists without trials or even charges, and pulled the United States out of longstanding agreements like the Kyoto Accords. In his new book The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, Berkeley law professor John Yoo argues that the critics have the Constitution wrong. The Bush Administration's record, Yoo argues, is well in line with constitutional definitions of presidential powers and with much of American history.

How much power should a president have?

John C. Yoo is Professor of Law at Boalt Hall, University of California, Berkeley. Neil J. Kinkopf is Associate Professor of Law at Georgia State University College of Law.

Yoo: 11/14/05, 09:23 AM
Let's start with the power to begin war.

Many scholars have argued that the declare war clause is the root of Congress's control over war; they argue that military hostilities cannot begin without Congress's ex ante authorization (except in cases of attack on the United States itself). This view seems to me to be inconsistent with the text and structure of the Constitution. The Constitution, for example, sets out very precise procedures for making laws, and it clearly specifies when the assent of more than one branch of government is required to undertake a certain action, as in the appointment of Supreme Court justices or the making of treaties. There is no such procedure for deciding to go to war. Rather, the Constitution distributes various powers related to war, such as raising and funding the military, declaring war, and the power of commander-in-chief, between the president and Congress.

One could argue, however, that the framers expected the war power to work exactly as would the regular enactment of statutes. But what about Article I, Section 10? It says that "no state shall, without the consent of Congress . . . engage in war, unless actually invaded, or in such imminent Dangers as will not admit of delay." This provision creates exactly the war powers process, vis-à-vis the states, that critics of modern war demand should apply between Congress and the President. It even includes an exception for defending against sudden attacks that they have read into the Declare War Clause to make their theory workable. Why would the framers have abandoned such clear language to draft the war powers system that they allegedly wanted, and instead favored the ambiguous allocations that they in fact wrote?

Nor does the history of the Declare War Clause prove that its original purpose was to give Congress the power to begin wars. Supporters of a Congress ex ante system rely on the records of the Philadelphia Convention, when the delegates changed Congress' power from "make" to "declare" war, because they wanted to give the president the power to repel sudden attacks. But this view usually ignores the treatment of the war power during the ratification process itself, which was the more important event. Many critics of the Constitution claimed that it vested too much power in the executive over the military; not a single defender of the Constitution responded that the declare war clause would give Congress any power to prevent this. Rather, James Madison in the Virginia ratifying convention argued that it would be Congress's power of the purse that would control the executive sword. Madison drew upon British history, in which the crown's control over the use of military force had been checked by Parliament's funding power.

The argument that the Congress must pre-approve all hostilities is also inconsistent with the practice of the president and Congress for many years. The United States has often engaged in military hostilities without any declaration of war. In the first few years of the nation, for example, the United States went to one major war without a declaration (with France in 1798), and to another with a declaration (Great Britain in 1812). Since World War II, the practice has been to go to war without a declaration. None of the major wars in this period—Korea, Vietnam, Grenada, Panama, the Persian Gulf War, Kosovo, Afghanistan, and Iraq—have witnessed a declaration. In some of these cases, the Persian Gulf War, Afghanistan, and Iraq, Congress supported military action through an authorizing statute, although defenders of the Declare War Clause view have never explained why a statutory authorization is sufficient as a substitute for a declaration of war. In any event, Congress never even gave statutory authorization in the Korean and Kosovo wars.

Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime. They can play a role, under international law, in defining the nation's legal status vis-à-vis an enemy, but this purpose has faded with the rise of wars of self-defense or those under international approval (where no declaration would be needed). War declarations do not play an important role in the domestic process of deciding on war.

But this does not mean that the President exercises unlimited power. Instead, Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Congress can choose to block presidential warmaking ex ante, if it chooses, simply by doing nothing. If Congress had opposed the wars in Kosovo or even Iraq, it could simply have chosen not to provide any money. We should not confuse a constitutional defect for a failure of political will on the part of Congress to oppose presidential foreign policy.

Kinkopf: 11/14/05, 05:14 PM
John, you have written a concise and readable synopsis of your position on the power to initiate war. It seems an apt beginning for entries in a forum called "Debate Club." In fact, though, these views have an importance beyond their capacity to score debater's points. You are not just an influential thinker on questions of presidential power but, until recently, held an important office in the Justice Department from which you issued significant opinions on presidential power relating to foreign and military affairs. One of those opinions set forth the position taken in this Debate Club installment: that Congress's Declare War Clause power does not prohibit the President from initiating military hostilities.

Stated this way, I agree with your position. Consistent practice since the founding confirms the president's power to deploy military force abroad without prior authorization from Congress. For those who have tuned in expecting a disagreement, fear not. I do not agree with John's position that the president may start a war without first receiving an authorization from Congress. (It has long since been established despite occasional assertions to the contrary that the authorization need not be styled a declaration (See, e.g., Talbot v. Seeman). The traditional position of the executive branch had been that the president may order military operations abroad as long as those operations were not so extensive as to amount to war. Where military operations would amount to war, however, the Declare War Clause requires advance congressional approval.

The position you stake out here, which is evidently the current position of the executive branch, reverses the traditional understanding of the Declare War Clause. You regard that clause as obsolete and essentially irrelevant with respect to the allocation of power between the President and Congress. This "dead letter" reading of the Declare War Clause means that the president may commence and prosecute a war. The only apparent check against this presidential war power is the authority of Congress subsequently to deny funding to continue the war.

You support this reading with reference to constitutional text, structure, and history. As to text, you assert that the Constitution does not set out "precise procedures ... for deciding to go to war." But one might have thought the Constitution had done just that by expressly vesting in Congress power to declare war. Indeed, this power is granted in exactly the same section as all of Congress's other powers. Is the power to initiate war really any more procedurally imprecise than its power to regulate interstate commerce or to establish "an uniform rule of naturalization"?

This textual point is best put the other way around. If the Constitution contains precise procedural mechanisms for the initiation of governmental power, what clause other than the Declare War Clause is fit to serve the role? The Commander-in-Chief Clause does not textually signify any more than that the president is authorized to prosecute the wars that are validly initiated. It, at most, says nothing about how wars are to be validly initiated. Other clauses often cited as establishing presidential power, notably the Take Care Clause and the Executive Vesting Clause, serve to make clear that the president's role is not to initiate but to enforce the laws that Congress has instituted. It is deviations from this model that are expressly and precisely set forth in the Constitution's text (the power to nominate officers and to negotiate treaties, for example). The absence of constitutional text granting the president the power to initiate war seems the silence that actually speaks volumes.

With respect to structure considered more broadly, your reading is quite troubling. The Constitution generally means to structure power so as to accord each branch effective checks and balances against the ambitions of the others. If the Declare War Clause is a dead letter, then Congress has no effectual check against executive war making. This was a matter of the deepest concern to the founding generation. If the power to initiate and prosecute a war are united in the president, how is Congress to act as a check against presidential warmaking? Your answer, John, is that Congress can deny funding for the war. This is unrealistic on two counts. First, any attempt to deny funding to an effort that has already commenced is easily prey for demagoguery: "the sponsor of such legislation does not support the troops." Second, the president can protect himself against ex ante restrictions on his war-making discretion by using his veto power. Then, Congress may only prohibit war by acting in advance with constitutional supermajorities. This, of course, is no real check at all.

You are right to raise the importance of Congress exhibiting political will. The Constitution plainly contemplates that Congress will be the chief constraint on the initiation of war and all the horrors that war entails. But the founding generation realized the necessity of providing an effectual check against the inclination of presidents to seek fame and power through war. By reading the Declare War clause as a dead letter, you deprive the constitutional scheme of its primary device to check the potentially dangerous military ambitions of the president.

I say the primary mechanism because the Declare War Clause is by no means the only check on presidential power in this sphere. Congress has other significant powers relating to military affairs that should allow Congress to act as an effective check against the president. These include the power to "make rules for the government and regulation of the land and naval forces" and to "define and punish... offenses against the law of nations." Recent Justice Department opinions, notably the infamous torture memo, have (wrongly in my view) called into question whether in fact these powers can be used to limit the President's authority.​