John Yoo's Tortured Logic (Page 4)

It hardly follows, in any case, that by reserving to Congress one method for blocking unilateral executive warmaking, the Framers intended to withhold from Congress all other means. Indeed, the Framers' fear of executive adventurism--reflected in their emphasis on the power to appropriate money for the common defense--also led them to grant Congress the lion's share of powers pertaining to war, with the notable exception of the executive command function. Congress could deny funding, but it could also refuse to raise an army or navy, deny the President the right to employ privateers, deny privateers the right to earn prize money and even decline to call forth the militia. Congress could also refuse to declare war--its most direct method of achieving the aim that its other powers would allow it to accomplish only indirectly. Yoo characteristically fails to ask why the Framers vested in Congress so many powers over war. Nor does he pay any attention to the political theory that underlies their constitutional thinking on this point. His "originalism," or pretended fidelity to the intent of the Framers and the ratifying conventions, is highly selective. He pores over the documentary evidence, it sometimes seems, only to discover tiny technical loopholes that appear to subvert the Framers' fundamental design.

For presidentialists, obviously, the most embarrassing passage in the Constitution is the one that unequivocally vests in Congress the power to declare war. Yoo's bold but futile attempt to explain away this provision makes up the heart of his book. His first ploy is belittlement. He contends, against the evidence, that "declare" had a narrow technical meaning at the time and that the power to declare war, having nothing to do with the power to commence war, was therefore a paltry power merely to "recognize an existing state of hostilities" and to clarify legal relations among belligerents and between belligerents and neutrals.

That even prolonged and serious wars took place without formal declarations was no secret at the time of the founding. And the Framers knew that an attack from abroad, with or without a declaration of war by the aggressor, could thrust the United States into a state of hostilities. It would therefore have been absurd for them to imply that the United States could never find itself in a state of hostilities unless Congress had previously declared war. And of course they neither said nor thought any such thing.

Eager to encourage foreign trade but wary of foreign entanglements, the Framers wanted to make it difficult for the government to initiate war. But they made sure not to abolish or overly restrict the power to repel surprise attacks. This latter power they implicitly placed in the federal executive but also, and more explicitly, in the state governments, on the assumption that foreign aggression might require a hair-trigger response before any consultation with Congress, perhaps out of session or sitting far away from the point of incursion, was possible. Eventually, the federal executive did something the state governments could not do: It expanded its originally limited constitutional permission to repel surprise attacks, without Congressional approval, into an "inherent power" to unleash military force in response to actual injuries or imagined threats to American interests, as the President unilaterally defines them, anywhere in the world. One result of this gradual magnification of presidential power has been the atrophy of the declare-war clause as a realistic check on executive warmaking.

But how does Yoo expunge the extensive textual evidence demonstrating beyond any doubt that the Framers and ratifiers wished to make offensive war difficult to initiate? He adopts a double strategy. When a statement is too flagrant to interpret away, he concedes the point and asserts that the view expressed in the offending passage is wholly unrepresentative. This is how he disposes of Madison's perfectly clear notes, taken at the Convention, according to which James Wilson "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c." Faced with such unambiguous counterevidence, Yoo dismisses it as exceptional and atypical, classifying Wilson as "a dissenter from the prevailing Federalist view on war powers." He concedes that "Wilson was a leading Federalist who relied on the Declare War Clause as a limitation on the war power" of the President. But "history will show," he authoritatively instructs, that Wilson "was the only one." In fact, as Yoo well knows, other Framers made identical or nearly identical claims. To deflect the plain meaning of their words, he suggests that they were trying to say something subtly different from what all previous constitutional historians have understood. Whenever the Framers discussed Congress's power to inhibit the initiation of offensive war, Yoo claims, they did not have in mind generic war but only a specific subvariety, "total war." This deft footwork allows Yoo to assert with spurious confidence that, apart from Wilson, the Framers agreed that Congress's power to declare war in no way limits the President's war powers.

But note the radical concession that, at this very point, Yoo inadvertently makes. He admits that the declare-war clause was not such a trifle, after all, since it "limited the executive's ability to plunge the nation into a total war." Congressional powers over war and peace are not limited to impeachment and appropriations, since "the executive branch cannot wage a total war without Congress's declaration of war." After feverishly insisting that the declare-war clause, as originally understood, gave Congress no authority whatsoever to restrict presidential warmaking, and that Congress participates in foreign affairs only via the appropriation and impeachment powers, Yoo suddenly pirouettes and admits that the declare-war clause did give Congress significant authority to limit the President's war powers.

In an attempt to extricate himself from the transparent inconsistency in his argument, Yoo distinguishes sharply between war and "total war." But this improvised escape craft is not seaworthy. His imaginative construct shipwrecks on the unambiguous constitutional provision that assigns to Congress, not to the President, the power to issue letters of marque and reprisal, which happens to be a power to engage in hostilities short of all-out war that might easily escalate into all-out war.

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