1 Boring Old Man

The Continuation of Politics By Other Means: The Original Understanding of War Powers
John C. Yoo
1996

In recent years, legal commentators have sharply criticized executive initiative in the war-making process. This Article examines the historical and legal background of the war powers in the Anglo-American world of the seventeenth and eighteenth centuries. The author argues that the war powers framework created by the Framers differs sharply from that envisioned by modern scholars. After exploring the Constitutional text, the political and legal context within which the Framers lived, experiences with British political history and state constitutions, and the arguments made during the ratification debates, the author concludes that the Framers created a framework designed to encourage presidential initiative in war. Congress was given a role in war-making decisions not by the Declare War Clause, but by its powers over funding and impeachment. The courts were to have no role at all. Professor Yoo suggests that the Constitution did not inadvertently exclude the judiciary. Instead, the Framers understood the Constitution as giving the two political branches weapons to struggle for influence over the war-making process – rendering judicial supervision unnecessary. The Article concludes that because the Framers failed to specify an exact relationship between the President and Congress in the area of war, precise procedures may evolve over time within the constitutional framework.

I’ll admit that legal argument is not my cup of tea. It feels like mental masterbation to me. But when I read this summary of John Yoo’s article from 1996, before 9/11, it seems very odd:

Article 1 Section 8 – Powers of Congress:

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Article 2 Section 2 – Civilian Power over Military, Cabinet, Pardon Power, Appointments:

• The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…

How the Presidency Regained Its Balance
New York Times [oped]
John C. Yoo
September 17, 2006

… But the president has broader goals than even fighting terrorism — he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the “erosion of the powers and the ability of the president of the United States to do his job” and noted that “we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.” Thus the administration has gone to war to pre-empt foreign threats. It has data-mined communications in the United States to root out terrorism. It has detained terrorists without formal charges, interrogating some harshly. And it has formed military tribunals modeled on those of past wars, as when we tried and executed a group of Nazi saboteurs found in the United States.

… The administration has also been energetic on the domestic front. It has re-classified national security information made public in earlier administrations and declined, citing executive privilege, to disclose information to Congress or the courts about its energy policy task force. The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.

… A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.

… These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks.

The 1970’s shifted power from the president to Congress, and the latter proved a far more accommodating boss to federal agencies looking for budget dollars — a fragmented legislature is obviously much easier to game than a chief executive. But 535 members of Congress cannot manage day-to-day policy. A legislature’s function is to draft the laws of the land, set broad goals and spend taxpayer revenues in the national interest, not to micromanage. The judiciary, too, has been increasingly assertive over the last three decades. It has shown far less deference to the executive in this war than in past conflicts. This energetic judiciary is partly a response to Congress’s bulked-up power; the courts have had to step in to try to repair the problems created by vague laws that try to do too much, that state grandiose goals, while avoiding hard policy choices.

Congress’s vague legal mandates are handed off to the states or the agencies or the courts to sort out. Our legislators rarely turn their attention to the problems created by laws that are old and obsolete, or of dubious relevance to new issues. (This is why the Hamdan decision was less a rebuke of the presidency than a sign of frustration with Congress’s failure to update our laws to deal with the terrorist menace.)

Unfortunately, much of the public misunderstands the true role of the executive branch — in large part because today’s culture transforms presidents into celebrities. On TV, a president’s every move seems central to the universe, so he has the image of power that far exceeds the reality. But as the presidential scholar Richard Neustadt, a liberal icon, argued, the presidency is inherently weak, while mythic things are expected of and attributed to it — like maintaining national security and economic growth. Today many pundits and political scientists seem to want the president’s power to be the sum of his communication and political skills, his organizational ability, his cognitive style and emotional intelligence. It is almost as if any president who uses the constitutional powers allocated to his office to effect policy has failed, not succeeded.

But the presidency, unlike Congress, is the only office elected by and accountable to the nation as a whole. The president has better access to expertise from the unified executive branch — including its top secret data — than the more ad hoc information Congress develops through hearings and investigations. That is why, while jealous of its prerogatives, Congress usually goes along with a president’s policy decisions. A strong executive can accept responsibility for difficult choices that Congress wants to avoid. The Republican Congress, for instance, wanted to give President Bill Clinton a line-item veto, only to be blocked by the Supreme Court. Despite hearings and criticism of the energetic executive, Congress has yet to pass laws reining in Mr. Bush very much.

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap. Congress now must act to guide our counterterror policy, but it should not try to micromanage the executive branch, particularly in war, where flexibility of action is paramount.

Professor of Law Boalt Hall School of Law, University of California, Berkeley (1993-present)
Visiting Scholar, American Enterprise Institute, 2003-present
Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice (under John Ashcroft, July 2001-? 2003)
2000 involved somehow in the Florida Recount?
General Counsel, Senate Judiciary Committee (under Orrin Hatch, 1995-1996)   
Law Clerk, Supreme Court (under Clarence Thomas), 1994-1995
Law Clerk, U.S. Court of Appeals, Washington, DC (under Laurence Silberman), 1992-1993
J.D., Yale Law School, 1992
A.B., Harvard College, summa cum laude, American History, 1989

John Yoo was not just a Constitutional Law expert hired on by the DoJ for the Office of Legal Counsel. John Yoo was hired for his ideology – before 9/11.