John Yoo's Tortured Logic (Page 3)

But why would an aspiring legal scholar labor for years to develop and defend a historical thesis that is manifestly untrue? What is the point and what the payoff? That is the principal mystery of this singular book. Characteristic of The Powers of War and Peace is the anemic relation between the evidence adduced and the inferences drawn. The footnotes and citations teem with ambiguity and complexity, while the summary statements snap dogmatic simplicities. For instance, in a section devoted to the powers of war and peace in various state Constitutions, between independence and the ratification of the Constitution, Yoo uses selective citation to convey the impression that state executives not only possessed substantial foreign-policy powers but were also, when commanding the state militias, freed from any obligation to act according to laws passed by state legislatures. That his case is wobbly on both counts is the least that might be said. But what makes his misleading account additionally baffling is that he cites without comment the very provisions in several state Constitutions that deny the executive branch any power to act except "under the laws" passed by the legislative branch.

In a stray footnote, to take another example, Yoo reproduces Madison's assertion that "executive powers ex vi termini, do not include the Rights of war & peace." And other Framers, too, classified the powers of war and peace as "legislative." But Yoo is convinced that the powers of war and peace must necessarily be classified as "executive." Faced with statements to the contrary, he buries or ignores them. The nimbleness with which, on several occasions, he simply inverts the manifest significance of historical texts that contradict his preset beliefs can only be called athletic.

Yoo's fictionalizing of the founding period is best exemplified by his lengthy discussion of the August 17, 1787, debate at the Constitutional Convention in Philadelphia. The surviving notes of this debate are admittedly garbled, cryptic and open to interpretation. But two things come through with ringing clarity. First, the word "declare," as the Framers used it, had a loose and fluctuating meaning. Second, most participants in the discussion agreed on the importance of limiting the President's war powers by granting important war powers to Congress. This consensus stemmed from a conviction that war is the nurse of executive aggrandizement and that the President, whose powers balloon unnaturally in wartime, has a dangerous incentive to contrive and publicize bogus pretexts for war.

Yoo is no doubt right to emphasize the idea, central to The Federalist Papers, that "exigency justified the expansion of government authority in war and peace." But when Hamilton and Madison referred to "government authority," they were thinking of the authority of the executive and legislative branches together, not of the executive alone. Because the ruses, stratagems and timing of the enemy cannot be known in advance, it would be folly to tie down the nation's defensive power to a set of rigid rules. But this does not mean that the Framers wished to make war powers an executive monopoly. In The Federalist, No. 30, for instance, Hamilton asserted that no constitutional limits can be placed on the power to tax, precisely because future necessities admit not of calculation. But this broad constitutional grant of emergency power to the government, made with an eye to providing for the common defense, in no way swells executive power vis-à-vis the legislature or implies any curtailment of Congress's exclusive power of the purse.

Determined to "prove" a thesis that is shaky at best, Yoo cannot bring himself to write straightforwardly. Some of the book's cloudiest passages are devoted to the counterintuitive claim that, for the Framers, "the President's authority under the Constitution did not differ in important measure from that of the king." He has to make this case against plentiful counterevidence, including Hamilton's lengthy analysis in The Federalist, No. 69, of the "total dissimilitude" of the American President and the British king. Equally frustrating for the careful reader is Yoo's repeated claim that Madison inherited from Montesquieu "a pure separation of powers scheme, one in which each governmental function was classified as either legislative, executive, or judicial, and then allocated to that branch." In fact, in The Federalist, No. 47, Madison went to great lengths to repudiate the pure separation of powers scheme, arguing that Montesquieu had defended a system in which the legislative, executive and judicial departments "are by no means totally separate and distinct from each other."

Yoo repeatedly asserts that the Framers gave Congress only two checks on the executive's foreign-policy powers: namely, the power to impeach and the power to cut off supplies. This is prima facie implausible, given the impressive arsenal of foreign-policy powers assigned to Congress by the Constitution, including the powers to define violations of the law of nations, to issue letters of marque and reprisal, to make rules concerning captures on land and water, to raise and support an army and navy, to make rules for their governance and to regulate international commerce--not to mention the Senate's powers to accept or reject ambassadorial appointments and to approve or reject treaties, and, of course, Congress's power to declare war.

Yoo's assertion that the power to defund an ongoing military campaign "can easily forestall hostilities" is also unconvincing. In practice, it has turned out, power over supplies is worth little, since sitting legislators are highly unlikely, for political reasons, to pull the plug on American troops already engaged in combat on executive authority. To the extent that it makes sense, moreover, Yoo's claim is largely antiquarian. In the founding era, when standing armies were still viewed with deep suspicion, Congress could forestall executive adventurism by denying the President the funds necessary to fight a war. Today, when large peacetime standing armies have become routine, the funding power cannot possibly have the checking force that the Framers intended it to have.

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