This is a transcript of what John Yoo discussed at Loyola Law School last night, including questions.
Federalist Society representatives from Loyola Law School, UCLA, Southwestern, and USC, as well as the Los Angeles professional chapter. Guest speaker is John Yoo, law professor at UC Berkeley since 1993.
Today’s topic is war powers, and the division and delegation of those powers between the executive and legislative powers, particularly in the wake of 9/11. The main question we will be addressing tonight is: Who has the power to decide how we start wars? By the words of the Constitution, we would think that Congress’ power is maximized in deciding to go to war, and that afterward, the Commander-in-Chief’s role would be paramount.
However, throughout the development of American history, facts have not always been in line with what’s been laid out in the Constitution. Many authorities who believe that Congress has the authority to start wars compare it to domestic regulations: Congress issues a goal, and the President carries it out.
Nonetheless, in the 20th Century, things haven’t always panned out this way. Note that in Korea and Vietnam, the President led us into war. At least with Afghanistan and Iraq, there were Congressional resolutions supporting action, if not declaring outright war.
Let’s start with the text. The Founders probably would not have equated declaring war with starting war. An 18th Century dictionary would not have defined them to be the same. One excellent example is the Declaration of Independence. It was basically a declaration of war, but it did not start the war. It merely conferred legal status on the relationship between the Colonies and Great Britain, which were already in a state of hostilities.
Article I, Section 10, specifically discusses making war by the States. This describes exactly what originalist opponents of executive war powers think, but it uses the word “engages”, rather than “declares”. The section thus prohibits states from engaging in war. You would think that if “declares” and “engages” meant the same thing, the Founders would have been consistent on that count.
Compare the process of engaging war with other duties divided between the executive and the legislative branches. For example, for entering into treaties and for appointing ambassadors, the process is divided between the President and Congress.
History. In the 100 years up to the ratification of the U.S. Constitution, the British crown declared only one of eight wars at the outset. In fact, Parliament’s role, rather than declaring war, was only in funding. So too in the American system, where funding, discipline, and legal status were vested in the Congress. However, Congress is not vested with all of the war powers.
That said, maybe none of this is convincing. Many people do not believe that original intent is either instructive or dispositive. If that’s the case, let’s instead look at the substantive results, and ask ourselves this question: What structures make the most sense?
The myth behind the declare war theory is that if Congress gets to declare war, there’s more deliberation, and there’s more consensus, before the country gets into something as devastating as war. That has a common sense appeal to it, but examine the history of American wars, and compare and contrast to this theory.
The two most controversial wars in the past half century are Vietnam and Iraq. Congressional participation does not seem to have lessened the controversies. In fact, sometimes Congress makes it worse. In 1798, we attacked France. In 1812, we attacked Great Britain. In both cases, Congress pushed the President into war. Other examples include the Spanish-American War, where Congress was much more hawkish than the President.
Deliberation. Deliberation takes time, and that might not be consonant with the requirements of war time. This is not always bad; neither Korea nor Kosovo could have occurred without Congressional funding. Also, the way the Cold War was waged might arguably be said to have been a success.
Let’s leave with this question: In the world after 9/11, does it make sense to have a system in which we must ask Congress first before getting involved with military conflicts? The threats we face now no longer come from nation states. Against these threats, as we adapt to confront the challenge, what is the best way to keep ourselves flexibility?
Isn’t your interpretation exactly the same as Karl Schmidt, who argued to legitimize Hitler’s warmongering?
No. My theory comes directly from Alexander Hamilton. This is the unitary government theory. This predates Karl Schmidt or Nazi Germany by over 100 years. Hamilton’s argument allowed Washington to stay neutral as the Napoleonic Wars started, even though Washington was supposedly bound by the self-defense treaty of 1778 to defend France. That is not to say that there aren’t hard questions here. One such question is: What is a legislative power, and what is an executive power? But Hamilton’s point is, if there is a power, and the Constitution doesn’t assign it to Congress, it should be assigned to the President.
Quasi-war. The onset of the Napoleonic Wars is a good example of a crisis in which no war is declared, but military action was ongoing.
In a post-9/11 world, should we think about amending the Constitution to better define war powers in both formal and quasi-war situations? The times are very different indeed. Back around our first crisis, Congress not only didn’t declare war, but raised funding to outfit a Navy, and a 10,000-man army, for the command of which General Washington was called out of retirement. There is, too, a difference between, say, a naval war with France, and total mobilization. The relevant question then revolves around whether or not one thinks the system works now. The problem isn’t Constitutional, but political. The threat of executive militarism may be there, but it is somewhat exaggerated. One example is the Vietnam War, which essentially was ended by Congress’ ending of funding for the conflict. This is a significant power indeed. I don’t think that we’d need to amend the Constitution to force Congress to make these hard political choices. A lot of what’s in the news today, such as NSA wiretapping or even Guantanamo Bay, can be solved by Congress defunding such programs. In fact, Congress has at least taken some action with regard to what goes on.
How do you address the genius of Karl Schmidt without cowering to political correctness?
I think you misunderstand me. I was addressing the theory of unitary executive, with respect to the framing of the Constitution.
Can you comment on the Advice and Consent Clause?
I actually agree with Democrats here. I don’t think there’s any Constitutional requirement for the Senate to hold only up-or-down votes. Senators take an oath to defend the Constitution, and their right to vote against a nominee, for whatever reason, should not be disturbed. In fact, this is a very important check against executive power. The more interesting problem is getting nominees to answer questions. I think the key is to avoid reading the Constitution so strictly that the President and Congress cannot negotiate with each other.
Do you think the War Powers Resolution of 1973 is unconstitutional?
Yes, I do. For those of you who don’t know what it is, it is a resolution that requires the President to obtain Congressional approval for military action that lasts longer than 60 days. Most Presidents have insisted that this resolution is unconstitutional. But it’s not been a great problem. Kosovo has been the only action that has violated the resolution. Perhaps a better way to do this is to require Congress to cut off funding for military actions lasting longer than 60 days about which it has not been consulted.
What do you think of filibustering judicial nominees?
I think that’s a Senate procedure, and trying to make a case out of it would be impossible to adjudicate. In fact, while we’re on it, note that the Constitution does not have rules for voting within either house. Also, no Congress can bind another Congress. Thus, an attempt, for example, to require that future Senates keep the filibuster would be unconstitutional. The Senate, by the way, has far less formal rules. Any one person can upend the day’s schedule. Thus, even if the Republicans were successful in ending filibustering of judicial nominees, any Democrat Senator can hold up the business of the Senate.
What do you think about Alito’s memo from a couple of decades ago that when the President signs a bill, he should write down how he interprets the law?
This is a question about signing statements. This is a practice that has been around. The real question is not whether or not this practice should continue, but whether or not the courts need to take such statements into consideration. I think that the courts should interpret the laws on their own, because that’s their job, not the job of Congress or the President. In fact, signature statements may be of very real value. I haven’t written about statutory interpretation in a long time, but I don’t remember such statements having made any difference in the outcomes.
Where is the War Powers clause in the Constitution? I looked in Article I, Section 10, and I can’t see anything.
There is none, because war powers are split up between the President and Congress. The point about Article I, Section 10, is that it applied to States.
Doesn’t the idea of functional separation of war powers seem a bit extreme by making it possible for Congress to shut down a war?
Once a war starts, it becomes difficult for Congress to voice opposition to a war, although Vietnam is a good counterexample. On the other hand, without Congress’ approval, we would not have been able to carry out the Cold War, with the massive troop deployments in Europe. Even a small air war like Kosovo could not have been sustained without Congressional funding. This separation of war powers is analogous to the administrative state: Congress passes broad delegations, and then uses its powers of funding, nominations, and oversight in order to control the outcome. This is very political, and not very formal, so we lawyers may not be used to thinking about it this way. The way war powers work today mirror very closely the way administrative power works. This is no coincidence. It’s ironic that those who criticize the administrative state tend to be supporters of broader executive powers during war, and those who love the administrative state tend to be opponents of broader executive war powers. Both originate from FDR, who significantly expanded executive powers in both war powers and the administrative state.
Is it true that Bush cancelled out the McCain amendment using a signature statement?
No, and I never said that he could. If Bush said, which he didn’t, that he can pretend a law wasn’t passed, he couldn’t do that. Keep in mind the original allocation of powers between the executive and legislative branches. It’s hard to define the line. Just as the President can’t say a law is meaningless, neither can Congress pass a law that destroys the original allocation of powers in the Constitution, for example by requiring, in World War II, that the President not open the European theatre before the Pacific theatre.
In your research, have you found that torture actually works?
The question you’re asking isn’t something that was raised in the memo. I think it’s a policy question, and others may be better prepared to answer that. I happen to think that answers extracted under torture might not be reliable, but the question the memo addressed was about legal status.