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John Yoo: President Can Wage War Without Congressional Declaration

WASHINGTON — There’s a lot of talk today about the feebleness of Congress, whether on its inability to pass real spending budgets or confront knotty but inevitably crucial issues like immigration. But there’s nothing that gets constitutionalists more agitated than lawmakers’ seeming abdication of their war powers.

“They are the invertebrate branch,” charged Bruce Fein, a constitutional scholar who moonlights [1] as James Madison in rotating theater performances inside and outside the Beltway. “Pure cowardice,” he adds, once or twice for good measure.

That was the upshot of a debate Thursday night between Fein and his peer John Yoo, now a professor at the University of California at Berkeley. Yoo has been vocal about what he says is executive power “run amok” [2] under President Donald Trump. That might seem the height of irony, given that Yoo’s infamous 2002 memo [3] as deputy attorney general gave the military and the CIA license to torture countless detainees in places like Guantanamo Bay and Abu Ghraib for at least seven years until President Barack Obama ended the practice by executive order in 2009 (though even then it’s suspected that renditions to secret black sites continued well into the Obama administration [4]).

But the question put to the two men at the event hosted by the Committee for the Republic [5] at the Atlantic Council in D.C. wasn’t on the pusillanimity of the Congress—on that point they seemed to agree, to varying degrees. No, it was whether Congress, and only Congress, had the authority to bring the country to war, and whether presidential wars of choice, beginning with Korea, then into Vietnam, and then the various overseas conflicts today, are unconstitutional.

“The ‘declare war’ clause is unambiguous; there was no dissent,” asserted Fein. “Only the Congress can take the country from a state of peace to war. I think there cannot be any dispute.”

He said the founders did not trust the executive not to pursue “gratuitous wars” as a means of aggrandizing his power. Article 1, Section 8, Clause 11 [6] is unequivocal, he said: “This process distinguishes us from a despotic and tyrannical government.”

The War Powers Resolution of 1972, which says the president has 60 days after initiating hostilities to get approval from Congress, was supposed to reinforce this clear power, according to Fein, though several presidents since have refused to acknowledge its legal effect.

There have only been five congressional declarations of war [7] in the history of the United States, with the War of 1812 being the only one that was initiated by Congress. The other four—the Mexican War, the Spanish-American War, World War I, and World War II—were declared after it was requested by the president in response to an attack. Every war since World War II has been conducted without a formal declaration, though with alternate congressional consent—like the Gulf of Tonkin Resolution in Vietnam, or the Authorization for Use of Military Force in Iraq.

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Critics of Fein’s strict constitutional view, like Yoo, believe [7] that Article II, Section 2 [8] invests the president with the power to wage war as commander-in-chief of the military. Yoo believes that the framers, far from equivocal during ratification, deliberately created the tension between the executive and legislative branches on the issue of war and did not restrict the president’s ability to initiate hostilities without a formal declaration. That declaration merely provides the legal framework for the war, Yoo said, dictating and establishing terms with the enemy, among other conditions. And Congress has the authority to test the president by withholding the funding for it.

“The main check is the executive and legislative branch conflict,” Yoo said, and “the power of the purse.” “I don’t know if the president has the power or resources to run a long-term war without Congress,” he added.

Fein was in complete disagreement that the framers had this baked-in “conflict” in mind, and blamed Congress for “cowardice” in hiding behind the president on issues of war.

“I’m not accusing the executive branch of usurpation; the legislative branch just throws [their power] away,” he said.

This debate has particular salience as Congress has been taking steps to check [9] the president’s authority to continue funding military support of Saudi Arabia’s war in Yemen.

Even Yoo admits that Congress has been funding an “offensive” not “defensive” military that allows the executive to wage hostilities all over the globe without formal declaration or even its own direct authorization. “Congress gives money, builds assets, with no restrictions,” he told TAC after the debate. “If you do it this way you are not politically responsible.”

Maybe in some way, Yoo understands that “flexibility” can have unplanned, even dangerous consequences—like his torture memo. In an interview in 2014 [10] about the revelation of the extent of CIA torture techniques, Yoo said they “were troubling,” and if the allegations were true, “[the techniques] would not have been approved by the Justice Department.”

Kelley Beaucar Vlahos is the executive editor of The American Conservative. Follow her on Twitter @Vlahos_at_TAC.

19 Comments (Open | Close)

19 Comments To "John Yoo: President Can Wage War Without Congressional Declaration"

#1 Comment By One Guy On February 9, 2018 @ 1:33 pm

The issue of torture and the issue of Congress’ ability to declare war are two separate, unrelated issues. I don’t understand why the author is trying to combine them. It’s not a bad article, but muddying the waters this way is not helpful.

#2 Comment By Mark Thomason On February 9, 2018 @ 1:38 pm

I detest John Woo. He is a war criminal and belongs in jail.

However, Congress has the power to authorize armed conflict in whatever way it chooses. We established that with the Quasi-War against France in 1798-1800, led by first George Washington and then John Adams.

Many of our wars have been authorized but not formally declared. That only Congress can declare it is not a limitation on the power of Congress to authorize what it chooses in the way it chooses.

I dislike the ducking of acknowledged responsibility by so many in Congress, but in fact they vote the money each year, and have each year refused to revoke their original authorization.

Congress is a full participant, and fully responsible for what it does. They duck that, but the ducking is a lie.

#3 Comment By SteveM On February 9, 2018 @ 2:29 pm

Re: “The main check is the executive and legislative branch conflict,” Yoo said, and “the power of the purse.” “I don’t know if the president has the power or resources to run a long-term war without Congress,” he added.

Only once the president initiates a war on his own volition, that bell can’t be unrung. The country that the U.S. is attacking will fight back. Then what? The Congress could say to the country under siege, “Nevermind”?

Bruce Fein is entirely correct. The American governance model is busted beyond belief and probably beyond repair.

#4 Comment By David Nash On February 9, 2018 @ 4:19 pm

Mister Yoo is the proximate4 cause for my declaration to friends and co-workers some years back that Good Ole Dubya was “shredding the Constitution”. All being strong Bushies, they dismissed my concerns, until BHO also tried ruling by Executive Decree. Only then did they become concerned.

Mister Yoo is one of those theoretical abstractionists who will happily slaughter any number of faceless abstractions, so long as he doesn’t have to get his own manicured hands dirty with real blood. Then, he gets queasy. And orders someone else to do the dirty.

But, I am reduced to agreeing with the above remarks, the original system is busted indeed. What we have been working on at least since the ACW is pretty much smoke and mirrors. Which is OK. Just ignore the old gent behind the curtain.

#5 Comment By Egypt Steve On February 9, 2018 @ 5:50 pm

Give me Lincoln over Yoo any day of the week, on this or any other question of law or policy:

“Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose — and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, “I see no probability of the British invading us” but he will say to you “be silent; I see it, if you dont.”

The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood. Write soon again. Yours truly, A. LINCOLN

#6 Comment By Fran Macadam On February 10, 2018 @ 1:20 am

We’re a long way from Lincoln, who himself showed less restraint than his own advice, close to what happened with the transformation of ancient Rome from Republic to Empire, and the substitution of de facto emperors for elected leadership.

#7 Comment By pax On February 10, 2018 @ 7:31 am

Who can stop him? The question: may he wage war without a declaration by Congress? This must be answered ASAP. Our Republic is being high jacked by the war party.

#8 Comment By Stephen On February 10, 2018 @ 8:05 am

“’The “declare war” clause is unambiguous; there was no dissent,’ asserted Fein. ‘Only the Congress can take the country from a state of peace to war.'”

I’m afraid that’s a debatable claim. All the US Constitution does is give the power to declare war to Congress. It does not actually forbid presidents from waging wars withOUT a declaration from Congress. That has left a gap wide enough for presidents to drive a semi-trailer through.

For Fein’s argument to work he has to make various unspoken assumptions about how the congressional declare war power works in relation to the (implied) presidential power to wage war in the commander-in-chief power. Which is all very well if someone could persuade the courts of the merits of his argument that US wars can only start with a congressional declaration. The trouble is. the Supreme Court has always shied away from deciding the issue. Instead it has taken refuge behind the fig-leaves of assorted technicalities. Technicalities which, though they are outwardly neutral, intrinsically favour the executive branch through Congress’s reluctance to defend its own constitutional turf, in part because the only power it has to do so is either via the power of the purse (to stop funding a war) or via impeachment.

No president has ever been impeached for starting a war without congressional permission; and every war a president has ever hatched Congress has seen fit to fund munificently no matter how dubiously it started.

The irony is that there was actually a much stronger congressional war power in the Articles of Confederation. That one did more than give a power to declare war to Congress. Unless the US had been actually invaded by enemies”, the Articles forbad the US “engaging” in a war without a congressional vote.

In comparison, its counterpart in the US Constitution is a pale shadow.

As for the War Powers Resolution, that has arguably only made matters worse by allowing presidents to start wars on their own recognisance and only get congressional permission afterwards. The trouble is that it is far harder to stop a war once it has started than to not go to war in the first place.

That’s arguably why the wars in Vietnam and Afghanistan persisted for so long. It was easier for presidents to allow them to continue than to cut their losses and get out. That would look too much like defeat. It is also why Rand Paul’s recent attempt to replace the two AUMFs failed. Like US presidents, too many in Congress find it politically impossible to stop a war once it has started.

#9 Comment By charles cosimano On February 10, 2018 @ 2:49 pm

Considering the inability of Congress to decide on much of anything, the ability to wage war without its consent is probably necessary to national survival.

#10 Comment By cka2nd On February 11, 2018 @ 1:22 am

Has anyone informed Rod Dreher that John Yoo is now a professor at UCal Berkeley? You know, just to assure him that the march of the “Cultural Marxists” (does anyone actually self-identify as a cultural marxist?) in the academy has John Yoo standing in the way.

#11 Comment By cka2nd On February 11, 2018 @ 1:27 am

Thank you, Messrs. Nash and Egypt.

#12 Comment By EliteCommInc. On February 11, 2018 @ 10:40 am

Wonder of wonders, no has thrown up the WPA. I don’t think there is much that defends a case for the founders creating a plangue on the question of war so as to arouse deliberate tensions. Sounds a strange decision making frame for the issues of sending men off to risk life and limb.

Those tensions exist naturally, but I doubt it was deliberate. But a congress that is on the same page almost with a single challenge isn’t going to produce the quality of decisions that such tensions are designed to produce. I don’t deny that 9/11 had a profound effect, but I am not sure
that both the executive and legislative branches aren’t enjoying the mutual benefits that 9/11 has bestowed from fear, real, manufactured or imaginary.

#13 Comment By Dan Green On February 11, 2018 @ 3:18 pm

Does anybody in their right mind expect our Congress to deal with difficult issues, war being one of them. Get over it they will never declare war unless NYC is nuked.

#14 Comment By Sanford Kelson On February 12, 2018 @ 10:00 am

Doesn’t the UN Charter, which the US drafted or was heavily instrumental in drafting, which the US accepted as a treaty, thus co-equal with the constitution, constrain both the president and congress in war-making?? Slippery Yoo would challenge this too.

#15 Comment By Mike Alexander On February 12, 2018 @ 12:04 pm

It seems clear to me that the purpose of a declaration of war is to initiate mobilization for war (the process of transitioning from peacetime to wartime). Implicit in the concept of mobilization for war is the idea that after the war the nation demobilizes (the process of transitioning from wartime to peacetime). The country did not fully demobilize after WW II and so never returned to peacetime. We have remained in wartime for 78 years, during which there has been no need for a war declaration as the president, through his power as commander in chief can direct the armed forces as he sees fit.

If we as a country *really* want to restore the state of peacetime we need to call for a severe reduction in military spending, that would force withdrawal from most overseas outposts and a significant reduction in the size of our armed forces. This would make it impossible for the US president to wage a medium-sized war overseas without first asking for a declaration of war by Congress.

#16 Comment By KD On February 12, 2018 @ 12:27 pm

Of course the President can declare war without Congressional Authorization. The President has done it numerous times in the history of the Republic. When has a Court ever declared a Presidential War unconstitutional?

Moreover, it is hard to be “Commander in Chief” without the de facto power to make war. The idea that it belongs to Congress to declare war is perhaps a quaint notion of the Founders, which does not work in practice.

Now I suppose if the President is fighting a war that Congress doesn’t like, Congress could de-fund the military or something, but we know that is not how it really works.

What did Bork say about the 10th Amendment? The same goes for Article 1, Section 8, Clause 11.

#17 Comment By b. On February 12, 2018 @ 1:02 pm

“Congress gives money, builds assets, with no restrictions. If you do it this way you are not politically responsible.”

Reasonable people consider this a non-sequitur, but we might have to begin calling it the Yo Defense: If you provide blanket permission – if you avoid giving orders – then nobody is responsible. Immaculate war crimes, immaculate torture.

“Congress has the authority to test the president by withholding the funding for it.”

Congress has the “ability” to “unsupport” the “troops”. In practice, this is an extension of the insight that the Army never forces anybody to fight, it just puts the soldiers and their guns in a place where they will be attacked, and let’s them make up their own mind.

The President never commits the nation to war, he just puts the troops in the middle of some battlefield and lets Congress make up its own mind…

Why is Yoo still considered part of civilized discourse? Hostis humani generis – the torturer, the slaver, the pirate are enemies of all mankind.

#18 Comment By One Guy On February 12, 2018 @ 1:33 pm

“…too many in Congress find it politically impossible to stop a war once it has started.”

Yes. But why? Because the people love war, especially war that doesn’t directly involve them, and war that provides jobs for Uncle Joe at the bullet factory. Americans have always loved war, jumping at the chance to invade Mexico, or attack Cuba, or send troops “over there”. Congress doesn’t want to lose the votes of the war-lovers.

Don’t get me wrong, I love guns and tanks and a good war movie as much as the next red-blooded American male. It’s just that I don’t take as much pleasure in the killing of little brown people, who probably don’t love Jesus.

#19 Comment By rosemerry On February 12, 2018 @ 2:10 pm

Very interesting article. Since the USA seems to want to use a constitution which is over 200 years old and fight about its meaning, is there not any suggestion that since 1945 there has been a United Nations Organization, that wars are to be a last resort, and avoided by using non-violent means, and that unless a nation is actually attacked or on the verge of being attacked, OR the UN agrees to the need for the war, WAR IS ILLEGAL. The USA, a founding member of the UN, discards this important rule and all its wars since WW2, including the NATO wars on others, ARE ILLEGAL, even if Congress, POTUS or whoever wants to wage it.