Who’s Got the Power to Use Force?

by John Yoo

Enemies of presidential power are joining forces with critics of President Barack Obama to land a blow against the executive’s commander-in-chief authority to use force abroad. On one side, Democratic representative Jerrold Nadler is demanding that President Obama seek congressional approval of a strike in Syria, and on the other side, Republican representative Justin Amash has done the same, and one expects Rand Paul to have the same view (as he did on Libya). Washington Post columnist George Will weighed in today with a column also arguing that President Obama would be acting unconstitutionally if he doesn’t obtain congressional consent.

This argument, however, is inconsistent with the constitutional text, which conservatives claim they take more seriously than the president. The president is the “commander-in-chief” and the federal government’s “executive power” is vested in him, though Article II of the Constitution does not define either term. Congress has the powers to raise the military, issue rules for its governance and regulation, and fund it. If these were the only constitutional terms on war, one would have to be left with the view that the Constitution arms both branches and leaves them to battle it out for control over war. That has also been the lesson of American history, where the president and Congress have struggled over the war power, with the president since World War II exercising the initiative.

The critical constitutional provision for Nadler and Amash is Congress’s power to “declare war.” They assume that “declare” means “start,” “authorize,” or “commence.” This commits the sin of the Left’s approach to what they call the “living” Constitution: reading its words as if they have their contemporary meanings, rather than the meanings at the time of their ratification. Reading the provision this way creates problems — for example, what about surprise attacks? The Left’s view of the clause (this is the view that the Left developed to oppose the Vietnam War — it is not particularly Democrat or Republican) requires reading in an unwritten exception for defending the nation from attack, among other things.

But the biggest problem is that this reading of “declare war” reads one common contemporary meaning of “declare war” back into the minds of the 18th-century Framers. For a clue, we should start with the constitutional text first. In Article I, Section 10, the Constitution declares that:

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.

This provision is telling. 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? Article I, Section 10 creates exactly the process — Congress must consent before a state can engage in war — between Congress and the states that “declare war” types think should exist between Congress and the president. It even has the exception for self-defense from attacks! But if the Declare War Clause means that the president must get Congress’s permission to start hostilities, it should have said: “The President shall not, without the Consent of Congress, engage the United States in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

The Constitution must be interpreted harmoniously – the same words should be given the same meaning in the text. We should expect the Framers to have used the same words to mean the same things, or we have to believe that the Framers acted irrationally or without common understanding and purpose. Only a view that interprets “declare” war by looking to 21st-century meanings of the word could reach the conclusion that Congress must give authorization for the strikes in Syria first.

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