Bench Memos

Law & the Courts

John Yoo’s Living Constitution — Continued

In a post yesterday, I argued that The Difference Between Yoo and Me, on war powers, turns on fundamental differences of constitutional interpretive methodology. 

I maintain that the original meaning of the Constitution is that Congress must authorize the use of military force against an enemy nation or power, under the Declare War Clause (absent certain exceptional circumstances), and that the President’s Commander-in-Chief Clause power is the plenary power of the President to direct and conduct military engagements authorized by Congress – still a formidable power, to be sure, but not one that includes the authority to initiate a condition of war.   

John Yoo’s position is that this division of power does not accord with much of our actual practice, and that it is more sensible as a policy matter to follow that evolved “tradition” and allow presidents to initiate wars and Congress to check (or not) such unilateral presidential war-making through its control over military spending. 

I chided John that this makes him a “living constitutionalist.”  Or at least he is on war powers questions.  Here’s the evidence for this claim, drawn from John’s essay last week

John Yoo begins his argument by stating: “This time, President Trump has the Constitution about right.”  About right?  This is a harbinger of imprecision to come.  Trump’s “exercise of war powers,” Yoo continues, “rests firmly in the tradition of American foreign policy.”  (Emphasis is mine, in all quotations.)  Tradition is the key word here, and a revealing one. Yoo is careful not to say that the text of the Constitution supports unilateral presidential war making.  Instead, his argument is that practice has established a different rule.  That is a living-evolving-constitution argument.

The United States has used military force more than one hundred times, Yoo continues, but only declared war five times.  That proves that declarations of war are not needed to justify unilateral presidential use of force. 

Not quite.  There are at least three problems with this reasoning. 

First, as noted in my prior post, Congress need not use the magic words “declare” and “war” in the exercise of its constitutional power to declare war. Formal declarations of war are out of fashion these days (for the most part) for a variety of international law and diplomatic reasons. But that hardly means that Congress’s power over the decision to go to war vanishes and the President therefore can do whatever he wants.  It means that Congress has exercised its constitutional power in a slightly different form. 

Congress has authorized the use of military force, against enemy nations or powers, a number of times – an exercise of the constitutional power to declare war but one that avoids the term “declare war.”  The Gulf of Tonkin Resolution of 1964, which authorized the Vietnam War, did not formally declare war, but it broadly delegated war-making authority to the President. That counts. So too, obviously, does the truly sweeping “Authorization for Use of Military Force” (AUMF) of September 18, 2001 – legally speaking, the broadest declaration of war in our nation’s history.  It is misleading in the extreme to count up formal war declarations, lay them alongside cases of actual use of military force, and say, “See? Congress doesn’t really have this power, the President does!”  

Second, many – not all, but many – unilateral presidential exercises of force fit within the exceptional categories noted in my original essay, involving instances where the Framers intended the President to retain the traditional executive power to respond to sudden attacks on the nation, rescue Americans already in peril from foreign force’s acts, or protect the nation in a truly emergency situation. That accounts for a good many other instances.

Third, and finally, as my original essay notes, many historical instances of unilateral presidential military action simply would have to be acknowledged to have been unconstitutional, on my understanding of the Constitution’s division of powers. John Yoo has me there: the evidence of actual practice does not line up with my account of original meaning – at least not at all perfectly.  But here is where John and I sharply disagree: John thinks such practice changes the meaning of the Constitution.  I don’t.

This is a classic problem in constitutional law generally.  What happens when actual practice under the Constitution does not square with sound first principles of constitutional interpretation?  Again, there are two main views: the “original meaning” view and the “living constitution” view.  Under the former, the Constitution sets forth immutable principles of fundamental law that cannot be altered by government officials.  Practice departing from first principles is simply unconstitutional, must be labeled as such, and cannot validly be treated as “precedent” authorizing future and further departures from the Constitution. Under the latter, “living constitution” view, the Constitution adapts with the times and can be altered by practice. 

This tension exists with war-powers constitutional issues, too, but with an ironic twist. Usually the “original-meaning” view is associated with political “conservatives,” who tend also to be legal conservatives. And usually the “living-constitution” approach associated with political “liberals,” who tend also to be legal liberals.  But in the area of war powers, the political and legal positions are often exactly reversed. Hawkish political conservatives (like John Yoo) often defend broad presidential war-initiating power, against the greater weight of textual and historical evidence of original constitutional meaning.  And they do so for policy reason: presidents, the argument goes, are better positioned and suited to make these judgments.  Moreover, the legal arguments invoked are ones that treat such an arrangement as one whose validity is established by the fact of actual constitutional practice departing from the arrangement specified by the text – a position that few political or legal conservatives would make for other areas of constitutional law, like abortion or expansive conceptions of national legislative power. 

Not to be outdone, dovish constitutional liberals readily change their stripes when it comes to presidential war powers.  No “living constitution” here: the text’s assignment of war-declaring power to Congress must be strictly adhered to; confirming evidence of the framer’s explicit intention and design confirms the text; policy and practice cannot alter original constitutional meaning.  It is indeed a rare and wonderful sight to behold unabashed judicial legal activists clinging so tenaciously – fervently! – to the text of the Constitution and the original intentions of its framers (just this one time). 

On war powers, John Yoo is the very model of the living constitutionalist, embracing the gloss that practice has added to (and subtracted from) the Constitution and advancing policy arguments for updating our reading of the document in order to better suit the times: 

“Common sense does not support replacing the way our Constitution has worked in practice . . .”, Yoo writes. Tradition, practice, and precedent – these are the things that Yoo thinks we should not be “replacing.”  It is not the text of the Constitution that we should adhere to, but what has been done with it.    

“Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by preexisting legislation.”  Vesting the authority to declare war in Congress would be “unsuitable” – bad policy

Congress is too large and unwieldy to take the swift and decisive action required in wartime.”  Indeed it may be.  But that is not a constitutional argument.  It is a policy argument that says, again, what a bad idea it would be to give Congress the power to declare war.  It is not an argument about the actual meaning of the text.  It may also be an argument that the Commander-in-Chief power – the power to take “swift and decisive action” in the conduct of military operations – is rightfully vested in the President, and not in Congress.  If so, I quite agree.  But that is a distinct question from the question of where the Constitution has placed the power to initiate a state of war.

Despite the record of practice and the Constitution’s institutional design,” Yoo continues, critics of presidential-initiation “argue that we should radically remake the American way of war.”  The American way of war?  Again, this is an argument about modern practice – about what has occurred in the implementation of the Constitution – not about whether such practice conforms to the original meaning of the Constitution’s words.

There’s more yet:  “Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power.”  Again, the argument is that any departure from the original meaning of the Constitution, with respect to the division of war powers, has been a good thing – sound policy.

Then, in one paragraph, John Yoo writes as follows: 

Congress has no political incentive to mount and see through its own wartime policy. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of the electorate. They prefer that the president take the political risks and be held accountable for failure.

True, true, true, and true. But what of it? The fact that Congress is cowardly, risk-averse, political, and the like is not a constitutional argument that Congress does not possess the constitutional power and responsibility to authorize war.  Nor is it a constitutional argument that the President has the power to initiate war just because (some might think) presidents generally would be better repositories of such power and discretion. (Even some who might otherwise be sympathetic to this pure policy argument might today have new doubts.  The thought that unilateral war-starting power might be possessed by the current incumbent, to exercise as he sees fit, rightly makes many folks shudder.) 

The fact that Congress might be bad at fulfilling its constitutional obligations does not mean it lacks such obligations.  It means that it should do a better job at its assigned role.  

There’s more, but I’ve gone on long enough.  All of John Yoo’s arguments are variations on a living constitution tune.  It’s time to stop the music.

In a subsequent post, I will take up the historical evidence that Yoo employs in support of the proposition that the Framers “decided that the president would play the leading role in matters of national security.” The evidence is right.  But it is all directed toward the President’s power as Commander-in-Chief to direct the actual conduct of military hostilities. It does not concern the power to initiate military hostilities in the first instance. 

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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