I hate it when I agree with the editorial page of the New York Times, even half-way. The Libyan conflict falls within the terms of the War Powers Resolution, and both Democrats and Republicans are flipping the constitutional positions they held under the last administration. At least this time the NYT editorial writers have the diagnosis right. But they would administer the wrong medicine.
The treatment isn’t to force everyone to obey an unconstitutional law, the War Powers Resolution, that is both untrue to the Framers’ original understanding and unsuited to the exigencies of modern war. The New York Times’s solution is the equivalent of using leeches on a patient with the common cold. The right constitutional answer (as I explain in this morning’s Wall Street Journal) is to toss the empty symbolism of the Resolution and meaningless lawsuits aside and let them fight it out using their own powers — commander-in-chief versus the purse — in the political process.
— John Yoo is a law professor at the University of California, Berkeley and author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.
I agree that the War Powers Act is of dubious political and constitutional merit; however, that does not mean that the President has the authority to, essentially, declare war unilaterally. The power to declare war is solely placed in the legislative branch of government. The Constitution couldn't be any clearer on this. The debates at the convention clearly show that all but one delegate argued on behalf of resting this power in Congress, and Federalist 69 also clearly lays this power in Congress's hands.
Yes, war making or war waging is an Executive function, as it should be. But a President just cannot engage in war, oh, excuse me, a kinetic military action, without Congressional approval.
Reply to this commentLinkReport AbuseExcellent editorial in the WSJ Professor Yoo. The WPA is unconstitutional, if the GOP disagrees with the "Kinetic Military Action" in Libya, then it should de-fund the war, just like the Dems should have done in Iraq if they so opposed that war.
Reply to this commentLinkReport AbuseThe "de-fund the war" meme is silly. As I said above, the Constitution clearly places the power of declaring war in the Legislative branch. It doesn't talk about "funding" the war - it talks about "declaring" war. Further, the political reality is that once a war or conflict or whatever term they decide to go with has already started, de-funding the troops is a lot harder to do than to not begin the conflict in the first place. Once a conflict has begun, you run the risk of being demagogued as "anti-troop" by cutting off moneys.
I mean, this is one of those things in the Constitution that's fairly crystal clear, and it was one of the few items in the convention that just about every delegate agreed with.
Reply to this commentLinkReport AbuseThe problem is that we have a pretty serious line drawing problem with military conflict these days. At exactly what point does a "conflict" become a "war"? Is it defined by the number of people involved? By how long it takes? A lot of people, prior to the start of Gulf War II, seemed to think it had to do with whether the people on both sides belonged to the regular forces of a sovereign government of a geographic area generally recognized as a "country."
The War Powers Act was an attempt to write a set of rules to deal with these questions in advance (that's the nature of legislation). But this is the kind of problem for which legislation is poorly suited. When the issue is highly fact sensitive, you need a means of ad hoc, post hoc resolution. The two institutions we have that can do that are Article III courts and the political system.
Obviously, neither the Constitution or common sense suggest giving this to Article III courts, so I think Yoo is on to something.
Reply to this commentLinkReport AbuseYou're ignoring parts of the Constitution while focusing only on others, Mr. Zummo. You might revisit your history, and in particular the Revolutionary War history of the tensions between Washington (as Commander in Chief) and the Continental Congress. The Framers, fresh from that history, knew exactly what they were doing when they struck the balance they did and gave both Executive and Legislature all the tools they needed to maintain checks and balances.
Reply to this commentLinkReport AbuseWhat parts of the Constitution am I ignoring? Care to bring up specific parts of the Constitution that permit President to go to war without Congressional authority? Or do you prefer to speak in generalities?
Reply to this commentLinkReport AbuseI couldn't disagree more. The obvious implication from Articles 1 and 2 is that only Congress can raise an army/navy and decide upon its purpose. Thereafter, the president takes over. I don't see the WPA being in any way a deviation from this, except perhaps granting TOO MUCH authority to the president.
Even if we went so far as to decide there are inherent emergency war powers from Article 2, it's clear that these powers would have been exceeded in the case of Lybia.
I agree, practically speaking, that Congress can use its powers of the purse to stop an abuse of presidential authority. But let's not pretend the Lybian "kinetic action" isn't such an abuse.
If we leave the military to the complete, unchecked discretion of the president, why not call him king or emperor instead and just be done with it?
Reply to this commentLinkReport Abuse"Obvious implications" aren't what matter.
What matters are the tools that are bound up in the structural division of responsibilities within the literal words of the Constitution.
Next you'll be arguing "penumbras." Pah.
Reply to this commentLinkReport Abuse>"Republicans are abandoning their party's longstanding position that the Constitution allows the executive to use force abroad, subject to Congress's control over funding."
That has never been the Republican Party position, ever. To the extent that any individual Republicans have believed such a thing, they were wrong.
>"untrue to the Framers’ original understanding"
Somebody needs a history lesson.
>"and unsuited to the exigencies of modern war."
Ah, Professor Yoo is a believer in the "living Constitution". Limits on executive power may have been good enough for the Founders, but not for we moderns. And of course all we need to do is interpret the Constitution as we wish, rather than amending that document as the need arises.
I'd also like to hear Yoo explain which particular exigencies of modern war are not covered in the WPA.
Reply to this commentLinkReport AbuseThe Republican party under George W Bush abandoned "their party's [alleged] longstanding position that the Constitution allows the executive to use force abroad, subject to Congress's control over funding." That is, they acted under the quaint belief that the President requires Congressional authorization to invade other countries, and passed AUMF's for both Afghanistan and Iraq.
Reply to this commentLinkReport AbuseThe possibility that a war or military action once begun by the executive branch would be hard for Congress to stop says nothing about whether the President is allowed to do it without a declaration of war. There have been hundreds of Presidential military actions or wars or hostilities or kinetic actions or preemptive wars without a Congressional approval. One example was the use of drones with missiles and bombs in Pakistan. While President Bush was doing this--without any declaration of war, contrary to the assertion about a Republican Presidential acceptance of the War Powers Resolution-- Senator Obama called on the U.S. to use drones with missiles and bombs in Pakistan (implicitly claiming that the U.S. was doing it at the time). Then President Obama made more drone attacks in about a year or two than President Bush had done in his eight years; and President Obama extended their use to places such as Yemen. Bernard Henry-Levy and a German magazine publisher turned out to be basically right when they said on Fareed Zakaria's show that President Obama would end up with a foreign policy basically the same as that of previous presidents. An advantage of the current situation is that the left will have less plausibility is making noises about imperial presidency or impeachment when the next Republican president does what all presidents have done: refuse to accept the constitutionality of the War Powers Act. Note that the Supreme Court has been refusing to involve itself in this dispute--another reason to use the Yoo solution and just let the other two branches fight it out without a War Powers Resolution or as if it didn't exist. Note that the War Powers dispute shows that the three branches are not equal. In some areas one or the other or the other is superior. And in some areas, it's not clear which branch is superior and that may be because in that particular area, neither branch is superior; while the Supreme Court--e.g., in the War Powers feud--is inferior and must continue to butt out.
Reply to this commentLinkReport Abuse>"Let the Fight over Libya Be Commander-in-Chief vs. the Purse"
That makes as much sense as saying "Let the Fight over Obamacare Be Democrats vs. the Republicans". If one is a purely political question, then both are. And Republicans should drop their claims that Obamacare is unconstitutional.
Reply to this commentLinkReport AbuseUh, why is that, exactly?
Obamacare IS unconstitutional, and, for those of us who care about the Constitution, it's important to say so.
And yet you seem to be adopting exactly that position with respect to the War Powers Act. At least, I read your "that makes as much sense as" to mean that you don't think Yoo is making any sense.
I get it that you're a contrarian. So am I. But you're going to give yourself whiplash flip-flopping at that rate.
Reply to this commentLinkReport Abuse>"Obamacare IS unconstitutional"
Yes, it is. And so is Obama's war in Libya. But whereas I think that all unconstitutional activities are unconstitutional, Yoo believes that he can skirt the constitution by calling some things "a political question".
If the question of whether it is Congress of the President who has the authority to commit the country to war is a political one, then all questions are political ones.
>"I get it that you're a contrarian"
I get it that you completely missed the point.
Reply to this commentLinkReport Abuse>"There have been hundreds of Presidential military actions or wars or hostilities or kinetic actions or preemptive wars without a Congressional approval."
I don't think there have been "hundred"s. But that's really besides the point. There have been hundreds of an robberies, but we don't conclude that bank robberies are therefore legal. A President either does or does not possess the constitutional authority to attack other counties (in situations outside of self-defense) without congressional authority.
If he does, then he has that power even if no President in history has used it.
If he does not, then he does not have that power even if every last president in history has behaved as if he did.
Reply to this commentLinkReport AbuseAt this point, Congress can't even identify where the money for the Libyan war is coming from. Obama is raiding some account, because no funds have been appropriated for this war. Which is another Constitutional violation.
With the Democrats controlling the Senate, it's impossible to convict Obama on these impeachable offenses. But the House can at least censure him, as it did to President Polk for instigating the Mexican-American War.
Reply to this commentLinkReport AbusePing: "Beldar Agrees with Yoo on War Powers Resolution."
Reply to this commentLinkReport AbuseWell gee now I'm convinced. It would be nice if one of you folks would like to actually address Article I, Section 8, or is that inconvenient to the argument?
By the way, the problem with the War Powers Act is that it both overly generous to the President when it comes to its own turf (declaring war) while being simultaneously power-grabbing with regards to Executive power over the conduct of the war.
Reply to this commentLinkReport AbuseProfessor Yoo is correct in more ways than one.
First, we have sufficient examples of Presidents sending troops into battle without (a) a declaration of war; or (b) being impeached to conclude both Chief Executives and Congresses past believed that power is inherent in "Commander in Chief."
TO SAY THIS IS NOT TO SAY OBAMA IS ACTING CONSISTENT WITH THE CONSTITUTION IN THIS INSTANCE.
Arguing a President cannot under any circumstances send troops into harm's way absent a Congressional declaration of war - sorry, that dog don't hunt.
Arguing about the location of the line - that's worthwhile.
Second, taking this dispute into the Courts is a huge mistake. The courts have already assumed way too much power and authority over our daily lives; do we really want to make them the final arbiter of whether or not our nation is "at war"? Does anyone here think an injunction against further hostilities issued by a Southern California District Court Judge while our troops are in the field would be a good idea?
My hope is the courts decline the invitation - - - and that future leaders of Congress have the good sense not to invite their participation.
It's time for Congress & the Executive to "put on their big boy pants" and settle their own disputes.
Reply to this commentLinkReport Abuse>"First, we have sufficient examples of Presidents sending troops into battle without (a) a declaration of war; or (b) being impeached to conclude both Chief Executives and Congresses past believed that power is inherent in "Commander in Chief."
"
Why do people keep employing this specious argument? Nobody is saying that all military action must be preceded by a declaration of war, or else impeachment must follow. Nobody.
What is being argued is that the president has no constitutional authority to order US forces to commit hostile acts absent one of the following a) Congressional authorization whether by AUMF or Declaration of War. b) an attack on US forces or US interests by a hostile power.
In the absence of Congressional permission, the Presidents military action must be defensive in nature.
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