Bench Memos

Law & the Courts

John Yoo, Alexander Hamilton, and War Powers — The Evidence of History

This is the last in a series of three posts engaging my friend John Yoo’s argument that Trump’s Syria Strike Was Constitutional.  John was responding in part to my National Review essay charging that those missile strikes amounted to Trump’s First Unconstitutional War. 

My prior two posts argued, first, that The Difference Between You and Me on war powers is that my position (that presidents cannot constitutionally initiate military hostilities on their own) is better supported by the Constitution’s text, structure, and historical evidence of original intention and understanding – and that John’s position (that presidents can initiate military hostilities on their own authority, that they have done so many times, and that this arrangement works well) is supported by some, but not all, actual practice and by certain policy arguments. 

The key difference between our views turns on the methodological question of what properly counts in constitutional interpretation.  Mine is a strict “original-meaning-of-the-text” view.  I insulted John by calling him (horror of horrors) a “living constitution” theorist with respect to war powers.  The insult was deliberate but cheerful: John and I are friends with different views. 

In the second post I laid out at length the evidence, taken directly from his own essay, that reveals the nature of John Yoo’s Living Constitution.  In a nutshell: most of John’s argument consists of claims that presidential initiation of hostilities has become the “American way of war,” established by long patterns of modern practice and that this way is superior as a matter of policy to relying on slow, ponderous, politically cowardly Congresses to decide whether or not the U.S. should use military force.  That’s all living-constitutionalist argument, I maintain.  It is not an argument concerning historical original meaning of the text.

But John Yoo does offer some historical argument. I would like to engage that evidence in this last post.  (I will also address the somewhat odd textual argument John makes about the Constitution’s division of war power between the nation and the states.)

John Yoo writes that the “Framers decided that the president would play the leading role in matters of national security.” The phrase “in matters of national security” is the key, subtly ambiguous phrase here. If by this he means that the President alone is charged with the duty and responsibility for the actual conduct of authorized war making – the direction of the use of armed force on behalf of the nation when constitutionally brought into play – I quite agree.  More to the point, I believe the historical evidence supports Yoo on this point.  (All of his evidence is, in fact, directed to that question, not the question of war-initiation, as we shall see in a moment.)  But if by “in matters of national security” he means that the President possesses a unilateral war-initiation power, none of the historical evidence supports Yoo’s position. The choice of phrases operates as rhetorical ketchup covering two quite different items on the plate.  The ambiguity of the phrase bears the entire weight of Yoo’s historical argument.

The era between 1776 and 1787 witnessed American governmental arrangements that featured weak executive authority, including the Articles of Confederation, Yoo writes.  But “when the Framers wrote the Constitution in 1787, they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.”  This is partially true and partially question begging.  The Framers created a far-stronger presidency, to be sure, but that does not answer the question of exactly what powers concerning “national security” (there’s that ambiguous term again) and “foreign affairs” (equally equivocal, in Yoo’s context) the President was given. 

Simply put: the fact that the President was given enlarged executive powers does not tell you how large they are. 

Yoo turns to Alexander Hamilton, the most gifted and insightful expositor of presidential power under the Constitution. To look to Hamilton is to look in the right place.  Yoo rightly quotes Hamilton in support of the broad power of the President, as Commander in Chief, to direct the conduct of war. But that is exactly what this historical evidence supports – not a power to initiate war. 

Yoo quotes these words of Hamilton from Federalist No. 74:  “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”  Yoo then concludes, rightly, that Hamilton’s words support the conclusion that “Presidents should conduct war” (emphasis mine) because they can act with “’decision, activity, secrecy, and dispatch.’” 

I agree.  But conducting a war is one thing and starting a war is another.  Likewise, foreign affairs and foreign relations are, to be sure, part of the President’s “executive power.”  But the power to direct and conduct foreign affairs does not extend to a power to take the nation from a state of peace to a state of war.  Instead, that power was vested in Congress by an explicit delegation. 

Hamilton thought so, too, or at least that appears clearly to be the thrust of his “Pacificus” essays in 1793, written just five years after Federalist No. 74.  Defending President Washington’s authority to issue a proclamation of American neutrality in the latest war between France and England, Hamilton argued for a broad presidential power over foreign affairs, including the interpretation of treaty obligations. The President is “charged with the Execution of the Laws, of which Treaties form a part” and is also charged with “the command and application of the Public Force.” 

The foreign affairs power of the executive is subject to specific textual exceptions, Hamilton noted. One of those is “the right of the Legislature ‘to declare war and grant letters of marque and reprisal.’”  (Emphasis mine.)  That did not control the specific question of power to issue a neutrality proclamation, however.  Hamilton argued that, though it might be true “that the right of the Legislature to declare war includes the right of judging whether the Nation be under obligations to make War or not – it will not follow that” the President may not “preserve Peace till war is declared.”  Congress may have the power to declare war, but that does not mean the President cannot declare neutrality unless and until Congress declares war.

Hamilton concluded in language clearly delineating the distinction between the foreign affairs power of the President and the war-declaring power of Congress: 

While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War – it belongs to the “Executive Power,” to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the U. States with foreign Powers.

In this distribution of powers the wisdom of our constitution is manifested.  It is the province and duty of the Executive to preserve to the Nation the blessings of peace.  The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.

John Yoo thus misreads Hamilton badly if he takes Hamilton’s statements concerning the President’s “executive Power” and Commander-in-Chief Clause power as embracing a power to initiate armed hostilities against another nation or enemy force – in Hamilton’s words, to “transfer the nation from a state of Peace to a state of War.”  Hamilton clearly viewed the latter power as the province of Congress. 

The clearest snippet of history on this point comes from a source John Yoo does not discuss: the records of the debates of the Constitutional Convention in debating the proposed power of Congress “to declare war.”  

James Madison’s copious Notes record that South Carolina’s Charles Pinckney and Pierce Butler advanced essentially Yoo’s position: The legislature would be “too slow” (Pinckney) and the President “will have all the requisite qualities, and will not make war but when the Nation will support it.”  (Butler). 

But this position was rejected by the Convention. Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”  Several other delegates chimed in their agreement.  A few noted the distinction between the power to initiate war and the power to conduct peace negotiations – distinguishing the war power from the general executive foreign affairs power.    

In the course of the debate, James Madison and Gerry famously proposed an amendment “to insert ‘declare,’ striking out ‘make’ war, leaving to the Executive the power to repel sudden attacks.” After some discussion, this motion was adopted.  In addition to the “repel attacks” explanation, Rufus King of Massachusetts noted that “make” war might wrongly be taken as including the power to “conduct” war, which he regarded as properly an executive function.  King’s observation persuaded Connecticut to support the changed wording. Finally, the delegates considered and rejected a proposal to add the words “and peace” to Congress’s power to declare war.   

As my co-author Luke Paulsen and I wrote concerning the lessons of this debate:

Though the Framers’ Philadelphia debates are cryptic and contradictory at times, several points seem clear. First, the provision was understood to vest in Congress, and not in the president, the decision whether the nation should go to war. Second, the change from “make” to “declare” was considered an improvement because it would leave with the president the traditionally understood executive power to defend the nation against attacks, thereby providing for those situations where Congress would be too slow in acting to protect the security of the nation. Third, the change from “make” to “declare” would avoid confusion about who had the power to conduct—to execute—war. That power, all seemed to agree, was the president’s alone, both as a matter of the executive power and as reinforced by the clause empowering the president as “Commander in Chief” of the nation’s armed forces. Fourth, and finally, the power to make or declare peace—the power of diplomacy and the conduct of foreign affairs generally—appears specifically to have been withheld from Congress and left with the president.

Yoo notes one more strand of evidence purportedly on his side. James Madison, defending the proposed Constitution in the Virginia ratifying convention, noted that Congress could check presidential military usurpation with the power of the purse.  But that hardly means that the President rightly has a free hand to use military force.  It only means that Congress possesses effective power to check presidential military adventurism.  A check against feared abuse is not a grant of power to engage in such abuse. 

A final textual / “original intent” argument (and another point on which John Yoo and I disagree sharply) concerns the meaning, and inferences to be drawn from, Article I, Section 10 of the Constitution.  That provision prohibits states from engaging in war “without the Consent of Congress … unless actually invaded, or in such imminent Danger as will not admit of delay.”  

As it stands, I believe this provision powerfully reinforces the conclusion that the Declare War Clause vests the decision to go to war in Congress, not the President.  It tells states that if they wish to engage in war, they should call Congressnot the Commander-in-Chief!  In addition, the exception for situations of invasion or imminent danger parallels, perhaps instructively, the Framers’ decision at Philadelphia to change the word “make” to “declare.”  It is probably sensible to understand the President’s residual executive war power to “repel sudden attacks” as extending to situations of imminent danger as well as actual invasion or attack.  (The text, however, must be conceded to be vague on this score; the intra-textual comparison helps to make sense of the words chosen, but it is not perfect evidence.)

John Yoo draws exactly the wrong inference from Article I, Section 10.  He writes: “If the Framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.”   See?  By not writing a similarly explicit, narrow exception to Congress’s declare-war power, the Framers in fact implicitly granted the President war-initiating power! 

With all due respect, this makes no sense. It takes a federalism provision responding to important geographic realities at the time and transforms its exceptions language into a sub silentio general presidential power – one that contradicts the premise that gave rise to the need for an exception in the first place (that is, the idea that Congress otherwise must consent, because it alone has the power to declare war).

The conclusion from history is clear.  The historical evidence is overwhelmingly against John Yoo’s position. 

* * * * *

I must emphasize again that, although I think John Yoo’s argument is badly wrong on the presidential war-initiation point, I think he is otherwise right on the broad powers of the President as Commander-in-Chief.  (As John once put it to an audience member at a debate we had on these issues, he and I disagree on who gets to start wars but agree on who gets to finish them.) 

It is on those latter issues – of presidential power to conduct legally authorized war – that John took so much completely undeserved heat for his brilliant, fearless, devoted legal work as Deputy Assistant Attorney General during the administration of President George W. Bush.  I regard John Yoo as a national hero for his courage in taking unpopular positions in defense of correct understandings of presidential power in a time of war and great national crisis.  Nothing in my critique of his position on unilateral presidential war-initiation should be taken as criticism of his public service or of the actions of the Bush administration.  While John Yoo advanced the view that President Bush could act unilaterally to employ military force against al Qaeda and other groups and nations acting in concert with al Qaeda, nothing turned on that view: within a week of September 11, 2001, Congress had passed the most sweeping war authorization in our nation’s history.  A year later, it added a specific authorization for the use of force in Iraq.  And even though I would not agree that President Bush lawfully could have employed full offensive force on his own authority, there is certainly a stronger case in those circumstances: Bush would have been responding to an actual attack on the United States.  He would not have been initiating a state of war. 

That’s where Trump’s missile strikes on Syria differ markedly.  They are not covered even by the sweeping 9-18-01 Authorization for Use of Military Force.  They were not a response to an attack on the United States or its armed forces.  It was not a situation of imminent such attack.  It was not the use of military force in a rescue situation.  It was an act of unilateral U.S. military retaliation for Syria’s violation of international law norms and an effort to deter further such actions.  As such, it may be justified morally and strategically.  But not legally: although the missile strikes may not result in a broader war, they were unquestionably acts of war – the initiation of armed hostilities against another nation’s forces.  And that, when done by a President without Congress’s authorization, violates the Constitution. 

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.


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