The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
by John Yoo
University of Chicago. 388 pp. $29.00
As a high-ranking official in the Justice Department during the two years immediately after 9/11, John Yoo played a central role in developing the legal rationale for some of the most contentious aspects of the war on terror. Now a professor of law at Berkeley, he has written an essential guide for thinking about national-security challenges in an era of transnational terror networks that flout the laws of civilized warfare. Contrary to the thinking of those who are reflexively hostile to the exercise of American power, and especially to its concentration in the hands of the President, his blueprint is a document composed well over 200 years ago: the American Constitution.
Yoo begins by exploring the work of legal and political thinkers whose ideas influenced the founding generation. In their writings, he discerns a consensus view on the need for a dichotomy in government—between, on the one hand, the power of domestic rule-making, essentially reposed by them in the legislature (with enforcement entrusted to the executive), and, on the other hand, what John Locke called the “federative” power governing relations between a particular society and the rest of mankind. This latter must, for security’s sake, be left almost exclusively to the judgment and alacrity of a capable executive.
How was a free society to vest such power without creating tyranny? To the framers, the answer was through Congress’s power of the purse as well as its primacy in the arena of domestic lawmaking. By means of these, presidential forays in the arena of foreign affairs could be effectively checked—deprived either of funding or of the legal arrangements necessary to carry out policy.
This, Yoo shows, was a lesson the framers may well have gleaned from the stormy history of England, where the Crown ultimately emerged with final authority to make war and peace but Parliament’s fiscal dominance enabled it to play a sometimes decisive role in foreign affairs. But the American experiment in divided powers was also consciously different from the British model.
Yoo conveys the tension at work by analyzing exchanges among delegates at the Federal Convention in 1787 and in the ratification debates that followed. These do reflect a tide turning in favor of presidential power in matters of war—particularly after the convention’s “great compromise,” which settled that the Senate would be large and its members elected by their individual state legislatures. This rendered Congress unsuitable for crisis management, which would need to be at once decisive and indifferent to regional interests.
But while the framers perceived the urgent need for a muscular executive, they plainly did not envision a Congress relegated utterly to the sidelines. The debates, moreover, leave an imprecise understanding of the eventual division of labor between the political branches as it emerged in the Constitution itself. For this, Yoo moves to the document’s text and structure, which he examines carefully alongside the failed Articles of Confederation that it supplanted as well as the state constitutions of the Revolutionary era.
Indeed, the Articles of Confederation had entrusted to Congress “the sole and exclusive right and power of determining on peace and war,” and one state constitution, that of South Carolina, straightforwardly stipulated that the chief executive “shall have no power to make war or peace . . . without the consent of the general assembly and legislative council.” This, in effect, is what many contemporary scholars construe the U.S. Constitution to be saying as well, resting their claim of a legislative war power on the clause (in Article I, Section 8) giving Congress the authority “to declare war.”
But, according to Yoo, such scholars could not be more wrong. Had the framers intended to entrust Congress with the power to “begin,” “make,” “levy,” “authorize,” or “initiate” war, they could easily have done so. Indeed, they duly considered the possibility and then rejected it, changing an early draft that had empowered Congress to “make” war and settling instead on “declare.”
At the time of the founding, this was a term of art with a well-established meaning. Neither a license to initiate hostilities nor a trigger for activating the President’s authority to use force, it denoted, rather, formal notice to the world of a change in the juridical relations between belligerents. Such a formal declaration legitimated attacks on persons and property, allowed seizures of contraband supplied by neutrals, and set markers for the eventual settlement of claims in peace treaties. In brief, a declaration was legal recognition that there existed between states a condition of total war.
The United States has fought numerous wars over its 230-year history, but, as Yoo reminds us, it has declared war only five times, the last occasion being when Pearl Harbor was attacked in 1941. Not all wars, in other words, are total wars; lesser states of bellicosity include what we would today call “police actions,” or limited-purpose campaigns like the expulsion of Iraq from Kuwait in 1991. In fact, Congress has long recognized this distinction by authorizing and subsidizing lesser, undeclared wars begun by Presidents, while conceding expanded domestic powers (such as the detention of enemy aliens) only when war has been formally declared.
In Yoo’s view, the President has discretion to make war not only when Congress stays silent but even when it implicitly disapproves. President Clinton’s 1999 incursion into Kosovo, for example, was undertaken in open violation of the War Powers Resolution (1973) and amid refusals by Congress (primarily the House) to authorize the use of force.
None of this, however, means that Congress is impotent: it can at any point pull the plug by cutting off appropriations. Although such a step is always politically risky when American troops are in harm’s way, the constitutional power is there: the American people remain the ultimate check on the war power. (That is why Congress will surely fund wars, authorized or not, when they are popular, but is apt to flex its purse-string muscles when public opinion shifts, as happened in Vietnam and Somalia.) Still, in the end, it is the President who is empowered to act, and who must be so empowered if public safety, the most solemn obligation of government, is to be ensured.
Although Yoo’s main focus, and the topic of greatest general urgency, is the power to make war, he also devotes a considerable portion of this book to a treatment of peace powers. Once again, he argues for presidential primacy. As government’s singular organ of foreign policy, the executive is not only supreme when it comes to the interpretation of treaties but (the Constitution being silent on this point) may alone abrogate them.
This is controversial, to say the least: after all, treaties entered into by a President cannot become binding law unless they are consented to by a supermajority (two thirds) of the Senate. From the Constitution’s silence on annulment, is it really possible to infer a unilateral presidential power to opt out? Answering in the affirmative, Yoo once again turns to the Constitution’s structure.
The treaty power is located in Article II, the repository of presidential authority. The Senate’s role is minimal. The President alone makes and, contrary to popular belief, ratifies treaties after the Senate has consented to them. By the same token, he can also decline to ratify them even when the Senate has given its consent. As for annulment, Yoo invokes a parallel situation: when it comes to government officials, the Supreme Court has long held that the President may unilaterally dismiss them even when the Senate has explicitly consented to their appointment. Analogously, should he not be able to abrogate treaties at his sole discretion, particularly given that the treaty power stems from the same clause (in Article II, section 2) as the appointment power?
Once again, though, Congress in hardly impotent. For Yoo, treaties are not “self-executing”—meaning that, being understandings between sovereigns, they do not vest individual citizens with enforceable rights. Such rights are dependent on legislation, and legislation is the business of Congress. The arrangement thus not only preserves a profound congressional influence but prevents the treaty power from overwhelming the system of popular sovereignty vouchsafed by the Constitution.
Yoo’s thesis in this book is strongest as an argument grounded in text—the text, that is, of our founding law. Precisely because the Constitution reposes such power in the executive, he argues, it is adaptable to the demands of crisis (though one must add that broad presidential power is necessarily also open to great abuse and even disastrous miscalculation). It is also flexible enough to allow for international cooperation in the name of the national interest without a wholesale commitment to dreamy multilateral constructs (though this, too, can make for trouble in an age of globalization in which dependable allies are essential).
But is Yoo’s reading, especially concerning the power of war, truly consistent with the framers’ original understanding? As the constitutional scholar Cass Sunstein has observed in reviewing Yoo’s book, George Washington himself construed Congress’s power to declare war as meaning that “no offensive expedition of importance can be undertaken until after they [Congress] have deliberated on the subject, and authorized such a measure.” Other giants of the founding—Adams, Jefferson, Hamilton, Madison, Chief Justice John Marshall—voiced similar sentiments. Even granting that the framers expressly resisted congressional war-making, and promoted a vibrant executive, one need not interpret “declare” as narrowly and legalistically as Yoo suggests.
In short, the tension reflected in the debates at the constitutional convention persists. But one must also be alert to reality. In a world beset by the constant threat of sudden destructive force, a robust and firmly grounded view of presidential power is imperative. Potential perils come today not just from growing national powers like China but from rogue states in Iran and North Korea as well as from increasingly diffuse terror cells that have demonstrated their capacity to continue striking globally even when, as now, they are under siege. If public safety is to be something other than an illusion, securing it will demand the power to attack quickly and, in appropriate circumstances, preemptively; the price of awaiting consensus from 535 members of Congress may be too prohibitive. For showing how that power derives from the very system the framers bequeathed us, John Yoo deserves our deep thanks.