The Framers, War Powers, and the Presidency

by John Yoo

My last post was more negative against the evidence used by those who believe President Obama must seek support in Congress before any strikes against Syria. Let me add more positive arguments in support of the idea that the president’s commander-in-chief and executive powers, granted in Article II of the Constitution, give him the authority to use force abroad. A broader, more sophisticated account of the history of the Framing of the Constitution undermines the simple claim, made by Representatives Amash and Nadler and Senator Paul, that the Framers would want Congress to have the power over war because they were anti-executive.

First, the Framers would have understood the Constitution’s distribution of war powers against the background of the British constitution, which had supplied many of the legal concepts present in the proposed document. Under the formal British system, as described by the widely read William Blackstone, the Crown exercised all of the war power, in which the declaration of war itself played the role of announcing to foreign enemies and domestic citizens a change in legal relations from peacetime to wartime. Nowhere was the power to declare war thought an important part of the process of the act of starting military hostilities.

Second, British governmental practice in the 18th century indicates that Parliament’s control over funding, rather than the role of the declaration of war, provided a sufficient functional check over executive war-making. During the century before the American Constitution, for example, Great Britain engaged in eight significant conflicts; in only one did the nation issue a declaration of war before the start of hostilities. But Parliament regularly used the funding power to control military hostilities.

Third, the political context of the American colonies and newly independent states also would have led to the understanding that the executive possessed the bulk of the war power. Reading the Constitution to maintain the executive’s commander-in-chief authorities bears more consistency with the general development of American constitutional thought from the Revolution through the Framing. Under the British imperial system, colonial governors had exercised unilateral control over the military under their command, subject to control by the assemblies over funding. State experiments in fragmenting the executive, and frustration with the limited powers of the Continental Congress led nationalist reformers to seek the restoration of authority in a unified presidency. Reading the Framers’ treatment of war powers as vesting the power over war in Congress would run counter to this broader design of the Constitution.

Fourth, details from the Framing debates themselves provide evidence that some of the Constitution’s supporters believed that it replicated the British system. When pressed during the Virginia ratifying convention, for example, with the charge that the president’s powers could lead to a military dictatorship, James Madison argued that Congress’s control over funding would provide enough check to control the executive.

Finally, under the approach being argued by supporters of the Congress-first theory of war, there would have been no need to create a presidency in the Constitution. If Congress is to decide when to go to war, and creates the military, and funds it, why not just let Congress create the agency responsible for war and dictate when it should act? But the Framers created a presidency because they sought to create a permanent part of the government that could, in Alexander Hamilton’s words, act with secrecy, speed, and energy. It is true that concentrating power in one person can lead to more mistakes, but the trade-off is that vesting the power in a large legislature — while guaranteeing deliberation and less mistakes — leads to delay and the mistakes of failing to act. The Framers believed that in national-security affairs, emergency, and particularly war, the better choice was to give the president the initiative because sometimes the nation must act quickly and decisively. Regardless of whether President Obama’s exercise of these powers fulfills the Framers’ vision, the Constitution seeks to give the national government the inherent ability to act with speed and energy in foreign affairs through a unitary president whose powers are at their peak during war.

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