"But the more important story — which no doubt will pass without mention in places like the New York Times — is that every single Democratic senator voted against the Paul language."

No. No, no, no and no. That's far from important. (Really, it's kind-of to be expected given the partisan nature of, y'know, partisan politics.)

The more important story is that it =wasn't= Rand Paul's language, but a quote from a former junior Senator from Illinois, a quote given to Boston media in late 2007, when that now-former Senator was running for President. That is to say, the Senate Democratic caucus, en masse, rejected the foreign-policy cornerstone of their former colleague who know just happens to be (spoiler alert!) the President of the nation who just happens to be (another one!) engaged in the almost literal polar opposite of his own statement.

The more important story here is that, again almost literally, campaign statements and positions have absolutely no meaning when it comes to actual governance. Hypocrisy is the only constant.

I'm with you Frank1914. I think they should raise your taxes to fully fund Medicare.

You know, when the Dems ran the show last year they could have done that. But they love you so much they wanted you to keep getting benefits without having to pay for them.

I had a friend who would borrow my VISA, and go buy things for me. Isn't that sweet?

Frank1914 : you don't think it's news that every Democrat voted that the president doesn't need congressional approval for war? And you'll have to give me names of those who "crowed" support for Medicare and is now patting himself on the back for gutting it.

Yoo was a member of the Bush RINO team who was responsible for constructing a legal basis for the imperial presidency. Conservatives don't believe in an imperial presidency and know that the constitution requires that congress initiate non defensive wars.

The idea that the president has the power to start non defensive wars without the approval of congress is not only profoundly unconstitutional but is extremely unwise, bad politics, and not conservative. Beyond the constitutional issue, the nation needs to be unified when it goes to war. Debating the issues of the war in congress is the best way to focus the attention of the nation on the reasons and necessity for the proposed war and to get an informed consent and commitment to the war from the governed.

Frank1914: THis plan does not gut Medicare. That lie has failed to gain traction.

"Yoo was a member of the Bush RINO team who was responsible for constructing a legal basis for the imperial presidency."

Please explain the term 'imperial presidency", and show where Bush ever authorized any military undertaking without Congressional approval. Have you actually seen the Congressional record of this period?

"The idea that the president has the power to start non defensive wars without the approval of congress is not only profoundly unconstitutional but is extremely unwise, bad politics, and not conservative."

Please make the legal case for your assertion. Also, explain how it is conservative if legal.

"Beyond the constitutional issue, the nation needs to be unified when it goes to war."

Bunk. This nation has never been united when it was called upon to go to war. There were severe isolationists, led by the likes of Senator William Borah, and then there were the nazi and Japanese sympathizers who protested openly in the streets.

"Debating the issues of the war in congress is the best way to focus the attention of the nation on the reasons and necessity for the proposed war and to get an informed consent and commitment to the war from the governed."

Which is exactly what your so-called RINO Republicans did with their political adversaries.

I wonder if you've actually read some of the debates...here, let me help you...http://thomas.loc.gov/cgi-bin/bdquery/z?d107:SP04865:

The key point of hypocrisy here, which Mr Yoo completely missed, is that the quote from the amendment: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” is from Obama.

1) Every Democratic Senator just went on record with a vote against the stated opinion of our current Democratic President.

2) Obama's own actions were, by his own measure, clearly unconstitutional. Obama's statement defining his position on the unconstitionality of his own actions was made on the floor of the Senate.

Paul was simply quoting Obama's own position on the issue. Whether or not O's position was correct is an entirely different question, and irrelevent to his hypocrisy.

Rand Paul managed to highlight the above by slipping a simple amendment onto a bill. Brilliant!

The only troubling aspect of this affair is that the Republican caucus was split on the underlying facts. 10 Senators agree with Senator Obama while the rest of the Republican Senators agree with President Obama. The good news here is that, unlike the Soviet style enforced political obedience of the Democrats in Congress, R's clearly feel free to vote their conscience. The bad news is, on such an important point of Constitutional Law, we clearly do not have anything approaching a concensus either nationally or within the Republican party.

What! Hypocrisy and lies in politics!

I'm shocked! Shocked! And they're gambling at Rick's American Bar!

I'm actually fairly shocked at the thought that some otherwise intelligent people really -are- shocked that Obambi has done a neat about-face and now denies that he ever said anything of the sort. I mean, you expected him to man up about it?

What -planet- do you live on, and how many -moons- does it have?

"Where you stand depends on where you sit", as the old Parliamentary saying goes.

Plenty of Republicans who'd be cheering lustily if a GOP President was thumping Gadhaffi are expressing doubts about this one... which is exactly the same thing in reverse.

Me, I'm consistent; I hate Gadhaffi and am pleased to see him with his essentials in the wringer and I don't give a tinker's curse who does it. If Michael Moore were ordering the bombing, I'd be for that too. And usually I can't see the man without wanting to douse him in gasoline and set him on fire.

Nor do I much care about the verbalisms used. UN Resolution, international yadda-yadda, whatever, yeah, right. Who cares?

Yoo is worried that the “Tea Party isolationists” are winning the argument?

One has to wonder if what should be a question purely of constitutional law is for Yoo merely an argument to be grasped in advancing a particular foreign policy (here, isolationism versus interventionism).

In fact, it has nothing to do with isolationism versus interventionism. The question is whether the Constitution gives Congress the power to decide whether to initiate a state of war with a foreign power. Whether Congress is of an isolationist mood or an interventionist mood at the time it makes a particular decision is not relevant to the constitutional question.

Yoo claims in his WSJ piece:

“Mr. Obama's exercise of war powers in Libya is firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congress have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II. “

“Without any approval from Congress, presidents have sent forces to battle Indians, Barbary Pirates and Russian revolutionaries, to fight North Korean and Chinese Communists in Korea, to engineer regime changes in South and Central America, and to prevent human rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf War and the 2003 Iraq War, received legislative "authorization" but not declarations of war.”

There are at least three fatal flaws in Yoo’s analysis:

(1) He fails to distinguish between defensive and non-defensive military actions.

(2) He falsely equates actions of a lesser order of magnitude such as fighting piracy or punishing a Pancho Villa-style raid with waging war against a foreign nation.

(3) He elevates form over substance by artifically confining Congress’ war power to merely uttering the magic words “declare war” thereby nullifying the underlying substance behind the phrase “declare war,” which is the power of decision as to whether the nation shall initiate a state of war with a foreign power. His interpretation is contrary to the clear intention of the Framers as evidenced in both their words and deeds.

FAILURE TO DISTINGUISH DEFENSIVE AND NON-DEFENSIVE MILITARY ACTIONS

Yoo states in a Ricochet post: “Some assume that ‘declare’ [war] means ‘start,’ ‘authorize,’ or ‘commence.’ Reading the provision this way creates problems -- for example, what about surprise attacks? Supporters of the pro-Congress view of the Clause have to read in an unwritten exception for defending the nation from attack, among other things.”

This is an obtuse argument. The use by the president of military force to respond to an attack does not involve “starting” or “commencing” war. If a foreign power attacks the United States, for example, in a similar magnitude as the attack against Libya, a state of war exists whether or not Congress or the president “declares” it so. Constitutionally speaking, no authorization under the “declare war” clause is needed because what the president does in these circumstances does not involve starting or commencing war. (It may be desirable for Congress to declare war in order to trigger certain US statutory authorizations, but these cannot control the question of constitutional interpretation.) As Commander-in-Chief, the president has the power, indeed the duty, to defend the nation in the event of attack.

What the president does not have is the power to initiate a state of war against another country, because that power is reserved to Congress under the “declare war” clause. It does not logically follow that the power to defend the nation after war has been commenced against us necessarily implies the constitutional authority on the part of the president to start a war against a peaceful foreign power constituting no threat.

WAR VS SOMETHING LESSER

The argument is made by some that the president has the power at his discretion to initiate hostilities for whatever purpose he wishes against whichever foreign power he chooses, provided that his military actions do not amount to “war.” But that is an argument for another day. It has nothing to do with the Libyan situation.

It is simply beyond dispute that the nature of the action we are discussing in the Libyan case is “war.” Launching hundreds of missiles and bombs at another country’s key military installations, destroying its air force and air defense systems, bombing army regiments, attempting to destroy any exposed tanks, artillery and armored personnel carriers, among other things, all within the territory of that country, is NOT a gray area. According to the Department of Defense, we have destroyed 30% of Libya’s military capability. No one can reasonably argue that these are not acts of war more than sufficient to invoke a state a war with Libya.

Discussions of capturing pirates, chasing down Pancho Villa, responding to American Indians on the warpath, etc. are beside the point in dealing with the constitutional issue facing us in the case of the Libya War.

YOO ARGUES FORM OVER SUBSTANCE, CONTRARY TO THE FRAMERS’ WORDS AND DEEDS

Attempting to confine the “declare war” power to merely the right to announce to foreign parties and US citizens that a change in the rules under the law of nations has occurred, is to practically make the clause a nullity. This is to substitute a technical by-product of the decision to initiate war for the decision itself. Yoo considers Congress’ authority limited to the mere power to pronounce formalistic magic words, thus robbing the clause of the substance of the power.

Even this meager power is less than it appears. When the president attacks a peaceful country with sufficient force as to indisputably initiate a state of war, then Congress’ purported power does not exist. The existence of the state of war is an already established fact in the circumstances, and triggers the consequences under the law of nations that Yoo claims the Congress has the right to trigger by “announcing” that a changed state of affairs exists.

Note that the fact that there may be statutory authorities under US law triggered by a formal “declaration of war” (beyond those authorities triggered by the existence of a state of war) is not relevant for purposes of the question of constitutional interpretation. Whatever statutes Congress enacts to this effect, they cannot, as a matter of constitutional law, change the meaning of the Constitution itself.

Yoo claims that the Framers intended to mirror the division of power between the King of Great Britain and the British parliament. The King decided whether to start a war, and parliament decided whether to pay for it.

But we know from their words that this was not the understanding of the Framers.

Alexander Hamilton: “[the president's Commander-in-Chief authority] would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature.”

James Madison: “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man....”

James Madison again: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”

John Jay: “[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”

More statements in a similar vein could be put forth.

And the early presidents by their deeds acted as if the power to decide whether to initiate non-defensive military actions rested with Congress.

For example, President Washington declined to consider unilateral military action against the Creeks if it could be construed as offensive: "The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure."

President Jefferson in regard to the Barbary pirates: “[The president is] unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense."

Again, other examples could be set forth.

Yoo claims we are reading history backwards if we understand “declare war” to mean “start war” (Yoo: “read[ing] the 18th-century constitutional text through a modern lens”). But that is exactly what these Framers said and how they acted. Can someone please give Yoo a clue that Madison, Hamilton, Jay, Washington, Jefferson, et al were not 21st century “Tea Party isolationists” but were people who actually lived in the 18th century and participated in framing either the Constitution or the political climate which produced it?

Yoo tries to dodge the devastating effects of these statements on his argument by pointing out that some of them were made after ratification, Jefferson was off in Paris at the time, etc. But that misses entirely the larger point – that what these men, who were our most important political thinkers during the relevant time period, believed the consensus understanding to be on this matter is relevant no matter when they spoke. ALL of them were far closer to the consensus understanding at the time than is John Yoo today.

The evidence of intent by both word and deed of the Framers is so extensive as to be conclusive. They believed the decision whether to involve the nation in a non-defensive war with a foreign power rested with Congress.

TEXTUAL COMPARISON WITH OTHER PARTS OF CONSTITUTION

Yoo states that the “biggest problem” with his critics’ understanding of the “declare war” clause is that:

“... this reading of "declare war" reads one common contemporary meaning of ‘declare war’ back into the minds of the eighteenth century Framers. For a clue, take a look at this provision, in Article I, Section 10:

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or ENGAGE in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

“To me, this provision is telling. Notice that starting a war is not referred to as ‘DECLARE,’ but ‘ENGAGE. Why not use ‘declare’ in both places if it were to mean the same thing -- initiate hostilities?” (emphasis added)

Yoo makes this argument in his book as well. But this argument is so frivolous as to be silly.

The use of the word “engage” in the case of a state but not for Congress is undoubtedly for no reason other than that it did not seem natural to the drafters to write of Congress “engaging” in war. Congress is a legislative entity, not a nation or a state or an army. They debate, they make speeches and they vote on laws and resolutions.

The use of the word “engaging” in war as applied to Congress, to the extent it even crossed anyone’s mind, probably raised a chuckle, certainly among those who had seen military service. One could outfit our current crop of congressmen with special weaponized James Bond briefcases and tailored Kevlar suits, and still one would wonder whether they could defend the Capitol rotunda from a determined troop of boy scouts. On the other hand, it IS natural to speak of a state “engaging” in war.

Furthermore, the natural meaning of the term “engage in war” encompasses more than just the decision whether to initiate a state of war with a foreign power, which is the power Congress was granted. Its meaning also naturally encompasses the activity of the day-to-day conduct of a war. This latter power the Constitution gives to the president as Commander-in-Chief, without, as this clause makes clear, interference from a state governor (not of course to deny the right of a state to defend itself in extremis).

ESTOPPEL ARGUMENT

What about Yoo’s argument that presidents have used military force more than 100 times abroad, gone after pirates, American Indians, etc.?

We can debate the power to go after cattle rustlers, etc. another day. There simply is no equivalence between rescuing the MV Maersk Alabama from khat-chewing pirates and the massive bombing blitzkrieg that was launched against Libya.

If we limit the number of cases that have occurred historically to (1) military action of the magnitude undertaken against Libya and (2) cases in which the president did not have a defense or treaty rationale, then we are talking about very few instances indeed, such as Korea and Serbia.

The fact that there exist other cases in which a president failed to obtain the required congressional approval does not have the effect of legally depriving the constitutional clause in question of its legal force. Unlike in contract law, estoppel arguments don’t go very far in constitutional jurisprudence. That the act of killing an unborn baby was considered within the power of a state to criminalize for hundreds of years did not stop the Supreme Court from deciding in 1973 that criminalizing abortion violated the Constitution. For nearly just as long police officers arrested suspects without reading them a Miranda statement. Suddenly, it’s unconstitutional not to. The fact that there were prior instances, even a long tradition of doing something a certain way, doesn’t seem to get too far in constitutional interpretation.

POWER TO CUT OFF FUNDS

Yoo argues that the power to cut off funds is an adequate safeguard against presidential abuse in starting a non-defensive war. But just a moment’s thought should convince anyone that ex post application of the appropriation power of Congress is NOT an adequate substitute for the requirement of prior approval of Congress before initiating wars.

A war can have severe and even existential consequences for the United States. What about the results of a counter-attack? Should we be surprised when a country that suffers a massive bomb and missile attack by a president launches attacks on the United States or our armed forces or civilians?

To paraphrase Ray Donovan, “which office do we go to to get the destroyed portions of our country and the lives of our killed citizens back?”

WHAT TO DO?

As Andrew McCarthy has correctly observed, it is likely the Supreme Court would consider this matter of separation of powers to be non-justiciable and therefore not susceptible to judicial resolution.

For those of us who value our constitutional system of checks and balances and the safeguards therein against one-man rule, how should we proceed?

The most powerful way for Congress to protect itself and the American people from a president who orders the U.S. military to start a war with a peaceful foreign nation that does not constitute a threat against us would be for Congress to declare that violation of the Constitution a high crime and impeach and remove the president. This is unlikely to occur in the present case, but it is certainly legitimate to discuss this action as one that would merit impeachment and removal

Nevertheless, I believe there is strong support in the country on various parts of the political spectrum that the Constitution should mean that a president cannot go around starting non-defensive wars with other countries without prior approval from Congress.

I suggest a useful way to raise the issue would be a censure vote in Congress against the president’s constitutional violation. This has been done before. Congressman Abraham Lincoln was among those who passed a censure against President Polk on this very point.

Another step to consider would be whether it is necessary to amend the Constitution to clarify that only Congress can authorize the initiation by the United States of a non-defensive state of war with another country. In doing so, this is not to concede that this is not already Congress’ prerogative. Rather, this would be to remove ALL ambiguity, so that no future president can ever again claim with a straight face that the Constitution gives him the power to use the US military to start a war with a non-threatening country at peace with us without Congress’ prior approval.