John Yoo, Alexander Hamilton, and War Powers -- The Evidence of History

by Michael Stokes Paulsen

This is the last in a series of three posts engaging my friend John Yoo’s argument that Trump’s Syria Strike Was Constitutional.  John was responding in part to my National Review essay charging that those missile strikes amounted to Trump’s First Unconstitutional War. 

My prior two posts argued, first, that The Difference Between You and Me on war powers is that my position (that presidents cannot constitutionally initiate military hostilities on their own) is better supported by the Constitution’s text, structure, and historical evidence of original intention and understanding – and that John’s position (that presidents can initiate military hostilities on their own authority, that they have done so many times, and that this arrangement works well) is supported by some, but not all, actual practice and by certain policy arguments. 

The key difference between our views turns on the methodological question of what properly counts in constitutional interpretation.  Mine is a strict “original-meaning-of-the-text” view.  I insulted John by calling him (horror of horrors) a “living constitution” theorist with respect to war powers.  The insult was deliberate but cheerful: John and I are friends with different views. 

In the second post I laid out at length the evidence, taken directly from his own essay, that reveals the nature of John Yoo’s Living Constitution.  In a nutshell: most of John’s argument consists of claims that presidential initiation of hostilities has become the “American way of war,” established by long patterns of modern practice and that this way is superior as a matter of policy to relying on slow, ponderous, politically cowardly Congresses to decide whether or not the U.S. should use military force.  That’s all living-constitutionalist argument, I maintain.  It is not an argument concerning historical original meaning of the text.

But John Yoo does offer some historical argument. I would like to engage that evidence in this last post.  (I will also address the somewhat odd textual argument John makes about the Constitution’s division of war power between the nation and the states.)

John Yoo writes that the “Framers decided that the president would play the leading role in matters of national security.” The phrase “in matters of national security” is the key, subtly ambiguous phrase here. If by this he means that the President alone is charged with the duty and responsibility for the actual conduct of authorized war making – the direction of the use of armed force on behalf of the nation when constitutionally brought into play – I quite agree.  More to the point, I believe the historical evidence supports Yoo on this point.  (All of his evidence is, in fact, directed to that question, not the question of war-initiation, as we shall see in a moment.)  But if by “in matters of national security” he means that the President possesses a unilateral war-initiation power, none of the historical evidence supports Yoo’s position. The choice of phrases operates as rhetorical ketchup covering two quite different items on the plate.  The ambiguity of the phrase bears the entire weight of Yoo’s historical argument.

The era between 1776 and 1787 witnessed American governmental arrangements that featured weak executive authority, including the Articles of Confederation, Yoo writes.  But “when the Framers wrote the Constitution in 1787, they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.”  This is partially true and partially question begging.  The Framers created a far-stronger presidency, to be sure, but that does not answer the question of exactly what powers concerning “national security” (there’s that ambiguous term again) and “foreign affairs” (equally equivocal, in Yoo’s context) the President was given. 

Simply put: the fact that the President was given enlarged executive powers does not tell you how large they are. 

Yoo turns to Alexander Hamilton, the most gifted and insightful expositor of presidential power under the Constitution. To look to Hamilton is to look in the right place.  Yoo rightly quotes Hamilton in support of the broad power of the President, as Commander in Chief, to direct the conduct of war. But that is exactly what this historical evidence supports – not a power to initiate war. 

Yoo quotes these words of Hamilton from Federalist No. 74:  “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”  Yoo then concludes, rightly, that Hamilton’s words support the conclusion that “Presidents should conduct war” (emphasis mine) because they can act with “’decision, activity, secrecy, and dispatch.’” 

I agree.  But conducting a war is one thing and starting a war is another.  Likewise, foreign affairs and foreign relations are, to be sure, part of the President’s “executive power.”  But the power to direct and conduct foreign affairs does not extend to a power to take the nation from a state of peace to a state of war.  Instead, that power was vested in Congress by an explicit delegation. 

Hamilton thought so, too, or at least that appears clearly to be the thrust of his “Pacificus” essays in 1793, written just five years after Federalist No. 74.  Defending President Washington’s authority to issue a proclamation of American neutrality in the latest war between France and England, Hamilton argued for a broad presidential power over foreign affairs, including the interpretation of treaty obligations. The President is “charged with the Execution of the Laws, of which Treaties form a part” and is also charged with “the command and application of the Public Force.” 

The foreign affairs power of the executive is subject to specific textual exceptions, Hamilton noted. One of those is “the right of the Legislature ‘to declare war and grant letters of marque and reprisal.’”  (Emphasis mine.)  That did not control the specific question of power to issue a neutrality proclamation, however.  Hamilton argued that, though it might be true “that the right of the Legislature to declare war includes the right of judging whether the Nation be under obligations to make War or not – it will not follow that” the President may not “preserve Peace till war is declared.”  Congress may have the power to declare war, but that does not mean the President cannot declare neutrality unless and until Congress declares war.

Hamilton concluded in language clearly delineating the distinction between the foreign affairs power of the President and the war-declaring power of Congress: 

While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War – it belongs to the “Executive Power,” to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the U. States with foreign Powers.

In this distribution of powers the wisdom of our constitution is manifested.  It is the province and duty of the Executive to preserve to the Nation the blessings of peace.  The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.

John Yoo thus misreads Hamilton badly if he takes Hamilton’s statements concerning the President’s “executive Power” and Commander-in-Chief Clause power as embracing a power to initiate armed hostilities against another nation or enemy force – in Hamilton’s words, to “transfer the nation from a state of Peace to a state of War.”  Hamilton clearly viewed the latter power as the province of Congress. 

The clearest snippet of history on this point comes from a source John Yoo does not discuss: the records of the debates of the Constitutional Convention in debating the proposed power of Congress “to declare war.”  

James Madison’s copious Notes record that South Carolina’s Charles Pinckney and Pierce Butler advanced essentially Yoo’s position: The legislature would be “too slow” (Pinckney) and the President “will have all the requisite qualities, and will not make war but when the Nation will support it.”  (Butler). 

But this position was rejected by the Convention. Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”  Several other delegates chimed in their agreement.  A few noted the distinction between the power to initiate war and the power to conduct peace negotiations – distinguishing the war power from the general executive foreign affairs power.    

In the course of the debate, James Madison and Gerry famously proposed an amendment “to insert ‘declare,’ striking out ‘make’ war, leaving to the Executive the power to repel sudden attacks.” After some discussion, this motion was adopted.  In addition to the “repel attacks” explanation, Rufus King of Massachusetts noted that “make” war might wrongly be taken as including the power to “conduct” war, which he regarded as properly an executive function.  King’s observation persuaded Connecticut to support the changed wording. Finally, the delegates considered and rejected a proposal to add the words “and peace” to Congress’s power to declare war.   

As my co-author Luke Paulsen and I wrote concerning the lessons of this debate:

Though the Framers’ Philadelphia debates are cryptic and contradictory at times, several points seem clear. First, the provision was understood to vest in Congress, and not in the president, the decision whether the nation should go to war. Second, the change from “make” to “declare” was considered an improvement because it would leave with the president the traditionally understood executive power to defend the nation against attacks, thereby providing for those situations where Congress would be too slow in acting to protect the security of the nation. Third, the change from “make” to “declare” would avoid confusion about who had the power to conduct—to execute—war. That power, all seemed to agree, was the president’s alone, both as a matter of the executive power and as reinforced by the clause empowering the president as “Commander in Chief” of the nation’s armed forces. Fourth, and finally, the power to make or declare peace—the power of diplomacy and the conduct of foreign affairs generally—appears specifically to have been withheld from Congress and left with the president.

Yoo notes one more strand of evidence purportedly on his side. James Madison, defending the proposed Constitution in the Virginia ratifying convention, noted that Congress could check presidential military usurpation with the power of the purse.  But that hardly means that the President rightly has a free hand to use military force.  It only means that Congress possesses effective power to check presidential military adventurism.  A check against feared abuse is not a grant of power to engage in such abuse. 

A final textual / “original intent” argument (and another point on which John Yoo and I disagree sharply) concerns the meaning, and inferences to be drawn from, Article I, Section 10 of the Constitution.  That provision prohibits states from engaging in war “without the Consent of Congress … unless actually invaded, or in such imminent Danger as will not admit of delay.”  

As it stands, I believe this provision powerfully reinforces the conclusion that the Declare War Clause vests the decision to go to war in Congress, not the President.  It tells states that if they wish to engage in war, they should call Congressnot the Commander-in-Chief!  In addition, the exception for situations of invasion or imminent danger parallels, perhaps instructively, the Framers’ decision at Philadelphia to change the word “make” to “declare.”  It is probably sensible to understand the President’s residual executive war power to “repel sudden attacks” as extending to situations of imminent danger as well as actual invasion or attack.  (The text, however, must be conceded to be vague on this score; the intra-textual comparison helps to make sense of the words chosen, but it is not perfect evidence.)

John Yoo draws exactly the wrong inference from Article I, Section 10.  He writes: “If the Framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.”   See?  By not writing a similarly explicit, narrow exception to Congress’s declare-war power, the Framers in fact implicitly granted the President war-initiating power! 

With all due respect, this makes no sense. It takes a federalism provision responding to important geographic realities at the time and transforms its exceptions language into a sub silentio general presidential power – one that contradicts the premise that gave rise to the need for an exception in the first place (that is, the idea that Congress otherwise must consent, because it alone has the power to declare war).

The conclusion from history is clear.  The historical evidence is overwhelmingly against John Yoo’s position. 

* * * * *

I must emphasize again that, although I think John Yoo’s argument is badly wrong on the presidential war-initiation point, I think he is otherwise right on the broad powers of the President as Commander-in-Chief.  (As John once put it to an audience member at a debate we had on these issues, he and I disagree on who gets to start wars but agree on who gets to finish them.) 

It is on those latter issues – of presidential power to conduct legally authorized war – that John took so much completely undeserved heat for his brilliant, fearless, devoted legal work as Deputy Assistant Attorney General during the administration of President George W. Bush.  I regard John Yoo as a national hero for his courage in taking unpopular positions in defense of correct understandings of presidential power in a time of war and great national crisis.  Nothing in my critique of his position on unilateral presidential war-initiation should be taken as criticism of his public service or of the actions of the Bush administration.  While John Yoo advanced the view that President Bush could act unilaterally to employ military force against al Qaeda and other groups and nations acting in concert with al Qaeda, nothing turned on that view: within a week of September 11, 2001, Congress had passed the most sweeping war authorization in our nation’s history.  A year later, it added a specific authorization for the use of force in Iraq.  And even though I would not agree that President Bush lawfully could have employed full offensive force on his own authority, there is certainly a stronger case in those circumstances: Bush would have been responding to an actual attack on the United States.  He would not have been initiating a state of war. 

That’s where Trump’s missile strikes on Syria differ markedly.  They are not covered even by the sweeping 9-18-01 Authorization for Use of Military Force.  They were not a response to an attack on the United States or its armed forces.  It was not a situation of imminent such attack.  It was not the use of military force in a rescue situation.  It was an act of unilateral U.S. military retaliation for Syria’s violation of international law norms and an effort to deter further such actions.  As such, it may be justified morally and strategically.  But not legally: although the missile strikes may not result in a broader war, they were unquestionably acts of war – the initiation of armed hostilities against another nation’s forces.  And that, when done by a President without Congress’s authorization, violates the Constitution. 

Kate O’Beirne, RIP

by Ed Whelan

NRO has posted a symposium of wonderful tributes to the great Kate O’Beirne from so many of her friends and admirers.  I encourage you to print out the entire set and savor it at your leisure.

I’m grateful to have had the opportunity to contribute this submission:

I can do no better than to endorse the many beautiful tributes to the extraordinary Kate O’Beirne that have already been written, including those by Ramesh Ponnuru, April Ponnuru (above), and Mona Charen. But let me offer a few observations.

When I first entered the outer orbit of the National Review world a dozen years ago, Kate had long been a dazzling star whom I had admired from afar. I might well have been daunted to approach her. But Kate instead generously befriended me. I immediately discovered how delightful, intelligent, and down to earth she was. I’m so grateful that my wife and I had many occasions over the years to talk and laugh with Kate (including at the Ethics and Public Policy Center’s 40th-anniversary gala just last year, which she highlighted with lavishly celebratory remarks punctuated by her wry humor). How I wish for one time more.

Some years ago, I took part in an amazing program in Rome — a sort of deeper look at the Vatican — for a group of twelve or so journalists. (I happily endured the label for the sake of the trip.) Kate was one of the leaders of the program. Over the course of a week, we visited the great basilicas of Rome, toured the Scavi and the Sistine Chapel, met with Vatican officials, had every meal together, and attended Mass each day at sites from the crypt of Saint Peter’s to the catacombs. Although Kate had done it all before, her joy and awe were fresh. She combined a humble reverence for that which deserved revering with a withering irreverence for that which didn’t.

More broadly, Kate’s deeply Catholic sensibility infused her life. The “tough broad” pose she sometimes feigned sheltered her gentle heart. She found and shared amusement in the foibles that we imperfect human beings all have, even as she loved others with (and not merely despite) our many faults. She put her ultimate faith not in the things of this world but in those of the next.

May Kate’s soul rest in peace, and may her beloved husband Jim, their two sons she adored, and her extended family be consoled in their grief.

This Day in Liberal Judicial Activism—April 26

by Ed Whelan

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee Supreme Court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee Supreme Court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.

The Biggest Success of Trump’s First 100 Days: Justice Neil Gorsuch

by Carrie Severino

Assessments of a president’s first hundred days are largely a meaningless metric invented by story-hungry media.  But in this case, President Trump has been able to rack up such a significant accomplishment in this short time that we can already be confident it will be remembered as one of the landmark accomplishments of his entire presidency: he appointed a superbly qualified, highly principled jurist to the Supreme Court.

To pull off a wildly successful Supreme Court confirmation in the face of unprecedented partisan opposition is hard enough.  To do it starting only ten days after taking office is exceptional.  But this confirmation was important for an additional reason as well: putting Neil Gorsuch on the Supreme Court fulfilled one of Trump’s most important campaign promises.  Big-league.

One of the countless ways in which the past campaign season was unique was the focus given to the Supreme Court.  Having a pending vacancy gave the candidates a ready-made opportunity to talk about that most-significant but much-ignored presidential power of judicial nominations.  And candidate Trump capitalized on that opportunity by issuing a list of potential nominees that took the discussion of judicial appointments from the typical realm of feel-good rhetoric to a discussion real-life judges whose actual judicial philosophies were available for public scrutiny.  Voters didn’t have to speculate about whether Trump’s team would be able to identify jurists in the mold of the Justice Scalia.  It already had.

That bold move has often been cited as the key to President Trump’s electoral victory.  According to exit polls, over one fifth of voters said the Supreme Court was the most important issue for them, and those voters broke decidedly for Trump.  For many people who had not chosen Trump in the primaries the prospect of Hillary Clinton appointing Justice Scalia’s replacement on the Court was a deciding factor in their choice to pull the lever for him in November.  And I can’t tell you how many Trump skeptics I have spoken to since the Gorsuch confirmation who said that his appointment alone was enough to convince them that voting for this president was the right thing to do. 

I heartily agree. 

President Obama’s executive orders are already out the window.  His signature legislative accomplishment is on the chopping block.  But Sonia Sotomayor and Elena Kagan, the two justices he appointed to the Supreme Court, will be helping shape our constitutional system for decades to come.  Whatever else President Trump accomplishes, Justice Gorsuch’s commitment to the rule of law and the Constitution will leave an indelible mark.

I hope to see many other great things out of this administration, but you couldn’t ask for a more successful beginning: fulfilling a top campaign promise, safeguarding the legacy of Justice Scalia, and helping preserving fidelity to the Constitution for a generation to come.  Here’s to the next hundred days.

This Day in Liberal Judicial Activism—April 25

by Ed Whelan

1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.

John Yoo’s Living Constitution -- Continued

by Michael Stokes Paulsen

In a post yesterday, I argued that The Difference Between Yoo and Me, on war powers, turns on fundamental differences of constitutional interpretive methodology. 

I maintain that the original meaning of the Constitution is that Congress must authorize the use of military force against an enemy nation or power, under the Declare War Clause (absent certain exceptional circumstances), and that the President’s Commander-in-Chief Clause power is the plenary power of the President to direct and conduct military engagements authorized by Congress – still a formidable power, to be sure, but not one that includes the authority to initiate a condition of war.   

John Yoo’s position is that this division of power does not accord with much of our actual practice, and that it is more sensible as a policy matter to follow that evolved “tradition” and allow presidents to initiate wars and Congress to check (or not) such unilateral presidential war-making through its control over military spending. 

I chided John that this makes him a “living constitutionalist.”  Or at least he is on war powers questions.  Here’s the evidence for this claim, drawn from John’s essay last week

John Yoo begins his argument by stating: “This time, President Trump has the Constitution about right.”  About right?  This is a harbinger of imprecision to come.  Trump’s “exercise of war powers,” Yoo continues, “rests firmly in the tradition of American foreign policy.”  (Emphasis is mine, in all quotations.)  Tradition is the key word here, and a revealing one. Yoo is careful not to say that the text of the Constitution supports unilateral presidential war making.  Instead, his argument is that practice has established a different rule.  That is a living-evolving-constitution argument.

The United States has used military force more than one hundred times, Yoo continues, but only declared war five times.  That proves that declarations of war are not needed to justify unilateral presidential use of force. 

Not quite.  There are at least three problems with this reasoning. 

First, as noted in my prior post, Congress need not use the magic words “declare” and “war” in the exercise of its constitutional power to declare war. Formal declarations of war are out of fashion these days (for the most part) for a variety of international law and diplomatic reasons. But that hardly means that Congress’s power over the decision to go to war vanishes and the President therefore can do whatever he wants.  It means that Congress has exercised its constitutional power in a slightly different form. 

Congress has authorized the use of military force, against enemy nations or powers, a number of times – an exercise of the constitutional power to declare war but one that avoids the term “declare war.”  The Gulf of Tonkin Resolution of 1964, which authorized the Vietnam War, did not formally declare war, but it broadly delegated war-making authority to the President. That counts. So too, obviously, does the truly sweeping “Authorization for Use of Military Force” (AUMF) of September 18, 2001 – legally speaking, the broadest declaration of war in our nation’s history.  It is misleading in the extreme to count up formal war declarations, lay them alongside cases of actual use of military force, and say, “See? Congress doesn’t really have this power, the President does!”  

Second, many – not all, but many – unilateral presidential exercises of force fit within the exceptional categories noted in my original essay, involving instances where the Framers intended the President to retain the traditional executive power to respond to sudden attacks on the nation, rescue Americans already in peril from foreign force’s acts, or protect the nation in a truly emergency situation. That accounts for a good many other instances.

Third, and finally, as my original essay notes, many historical instances of unilateral presidential military action simply would have to be acknowledged to have been unconstitutional, on my understanding of the Constitution’s division of powers. John Yoo has me there: the evidence of actual practice does not line up with my account of original meaning – at least not at all perfectly.  But here is where John and I sharply disagree: John thinks such practice changes the meaning of the Constitution.  I don’t.

This is a classic problem in constitutional law generally.  What happens when actual practice under the Constitution does not square with sound first principles of constitutional interpretation?  Again, there are two main views: the “original meaning” view and the “living constitution” view.  Under the former, the Constitution sets forth immutable principles of fundamental law that cannot be altered by government officials.  Practice departing from first principles is simply unconstitutional, must be labeled as such, and cannot validly be treated as “precedent” authorizing future and further departures from the Constitution. Under the latter, “living constitution” view, the Constitution adapts with the times and can be altered by practice. 

This tension exists with war-powers constitutional issues, too, but with an ironic twist. Usually the “original-meaning” view is associated with political “conservatives,” who tend also to be legal conservatives. And usually the “living-constitution” approach associated with political “liberals,” who tend also to be legal liberals.  But in the area of war powers, the political and legal positions are often exactly reversed. Hawkish political conservatives (like John Yoo) often defend broad presidential war-initiating power, against the greater weight of textual and historical evidence of original constitutional meaning.  And they do so for policy reason: presidents, the argument goes, are better positioned and suited to make these judgments.  Moreover, the legal arguments invoked are ones that treat such an arrangement as one whose validity is established by the fact of actual constitutional practice departing from the arrangement specified by the text – a position that few political or legal conservatives would make for other areas of constitutional law, like abortion or expansive conceptions of national legislative power. 

Not to be outdone, dovish constitutional liberals readily change their stripes when it comes to presidential war powers.  No “living constitution” here: the text’s assignment of war-declaring power to Congress must be strictly adhered to; confirming evidence of the framer’s explicit intention and design confirms the text; policy and practice cannot alter original constitutional meaning.  It is indeed a rare and wonderful sight to behold unabashed judicial legal activists clinging so tenaciously – fervently! – to the text of the Constitution and the original intentions of its framers (just this one time). 

On war powers, John Yoo is the very model of the living constitutionalist, embracing the gloss that practice has added to (and subtracted from) the Constitution and advancing policy arguments for updating our reading of the document in order to better suit the times: 

“Common sense does not support replacing the way our Constitution has worked in practice . . .”, Yoo writes. Tradition, practice, and precedent – these are the things that Yoo thinks we should not be “replacing.”  It is not the text of the Constitution that we should adhere to, but what has been done with it.    

“Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by preexisting legislation.”  Vesting the authority to declare war in Congress would be “unsuitable” – bad policy

Congress is too large and unwieldy to take the swift and decisive action required in wartime.”  Indeed it may be.  But that is not a constitutional argument.  It is a policy argument that says, again, what a bad idea it would be to give Congress the power to declare war.  It is not an argument about the actual meaning of the text.  It may also be an argument that the Commander-in-Chief power – the power to take “swift and decisive action” in the conduct of military operations – is rightfully vested in the President, and not in Congress.  If so, I quite agree.  But that is a distinct question from the question of where the Constitution has placed the power to initiate a state of war.

Despite the record of practice and the Constitution’s institutional design,” Yoo continues, critics of presidential-initiation “argue that we should radically remake the American way of war.”  The American way of war?  Again, this is an argument about modern practice – about what has occurred in the implementation of the Constitution – not about whether such practice conforms to the original meaning of the Constitution’s words.

There’s more yet:  “Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power.”  Again, the argument is that any departure from the original meaning of the Constitution, with respect to the division of war powers, has been a good thing – sound policy.

Then, in one paragraph, John Yoo writes as follows: 

Congress has no political incentive to mount and see through its own wartime policy. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of the electorate. They prefer that the president take the political risks and be held accountable for failure.

True, true, true, and true. But what of it? The fact that Congress is cowardly, risk-averse, political, and the like is not a constitutional argument that Congress does not possess the constitutional power and responsibility to authorize war.  Nor is it a constitutional argument that the President has the power to initiate war just because (some might think) presidents generally would be better repositories of such power and discretion. (Even some who might otherwise be sympathetic to this pure policy argument might today have new doubts.  The thought that unilateral war-starting power might be possessed by the current incumbent, to exercise as he sees fit, rightly makes many folks shudder.) 

The fact that Congress might be bad at fulfilling its constitutional obligations does not mean it lacks such obligations.  It means that it should do a better job at its assigned role.  

There’s more, but I’ve gone on long enough.  All of John Yoo’s arguments are variations on a living constitution tune.  It’s time to stop the music.

In a subsequent post, I will take up the historical evidence that Yoo employs in support of the proposition that the Framers “decided that the president would play the leading role in matters of national security.” The evidence is right.  But it is all directed toward the President’s power as Commander-in-Chief to direct the actual conduct of military hostilities. It does not concern the power to initiate military hostilities in the first instance. 

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

Slow Blogging

by Ed Whelan

On the off chance that you’re wondering where I’ve disappeared to: No, I am not in a weeks-long drunken stupor over the Senate Democrats’ glorious folly of triggering abolition of the Supreme Court filibuster. I’m instead turning to matters that I somewhat neglected during the Gorsuch confirmation battle. Plus, in what might be a short period of calm before the next Supreme Court nomination, I’ve been diving into a great new project that I’ll be eager to highlight soon.

Another Vacancy on the Sixth Circuit

by Jonathan H. Adler

Yesterday, Judge David  McKeague of the U.S. Court of Appeals for the Sixth Circuit announced his intention to take senior status. This will create a third vacancy on the Sixth Circuit. There are already two vacancies for Kentucky seats on the court. Judge McKeague’s announcement will create a third from Michigan.

This Day in Liberal Judicial Activism—April 21

by Ed Whelan

1969—In his majority opinion in Shapiro v. Thompson, Justice Brennan rules that state and D.C. laws that deny welfare assistance to residents of less than a year violate a constitutional right to travel interstate. Brennan’s usual ally, Chief Justice Warren, dissents on the ground that Congress had authorized the one-year residency requirement. In a separate dissent, Justice Harlan objects that he “know[s] of nothing which entitles this Court to pick out particular human activities, characterize them as ‘fundamental,’ and give them added protection under an unusually stringent equal protection test.” More broadly, Harlan observes:

“Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.”

The Difference Between Yoo and Me

by Michael Stokes Paulsen
John Yoo's Living Constitution

Last week, on the main page of the National Review website, I sharply criticized (on legal grounds) Trump’s First Unconstitutional WarLater in the week, my friend John Yoo responded with an essay arguing that Trump’s Syria Strike Was Constitutional.  I’m carrying the debate forward in this space, in a series of posts. 

In a nutshell: John Yoo is half right on war powers.

Here’s the half where he’s right: The President, as Commander-in-Chief, has the plenary power to direct the actual conduct of war on behalf of the United States. On that score, John and I are in full agreement.  John Yoo is correct about the sweeping Commander-in-Chief power of the President to manage, direct, and command the actions of America’s armed forces, when lawfully deployed in the service of the nation.

But here’s the half where he’s wrong: The President does not have the plenary power to initiate war on behalf of the United States. For better or worse – I think for better, John thinks for worse – the Framers reserved that power to Congress. That’s where John Yoo and I part company.   

There is a crucial difference between the Commander-in-Chief power of the President to conduct war and the explicit textual power of Congress to authorize war in the first place (whether done by formal declaration or by its legal equivalent). The Constitution draws a crisp distinction between these two distinct aspects of the war power.  It assigns the power of war-initiation to Congress and not to the President.  It assigns the power of war-execution to the President and not to Congress. (An important aside: The power to “declare war” does not require the use of magic words.  Congress need not say the word “declare” and need not say the word “war” – and might well choose not to, for reasonable political or foreign policy reasons. Thus, Congress today typically “authorizes” the use of military force rather than formally declares war.  But it is clear that, regardless of the form its enactment takes, the power Congress is exercising comes from the Declare War Clause.)  

The division of the war powers is a near-perfect illustration of the framers’ obsession with separation of powers and checks-and-balances.  Neither branch legitimately can usurp the primary war power of the other: the President may not assume to himself the power to declare war; Congress may not micro-manage the conduct of wars it authorizes.  Each branch’s share of the war power acts as a strong functional check on the other’s actions. Constitutionally, neither branch can put us into a condition of war without the affirmative consent of the other.     

John Yoo’s essay conflates these two distinct war powers.  He draws on historical evidence concerning the President’s broad Commander-in-Chief powers as if it supported a plenary power of the President to start wars.  In essence, Yoo argues that presidents have the power to initiate war because the framers understood the president to possess the exclusive power to conduct war. That is simply not logically sound.   

The text, structure, logic, and original understanding of the Constitution are all on my side in this debate. That was the essence of my essay last week. It is a point I have made elsewhere on various occasions. As noted, John Yoo’s only contrary historical evidence concerns the president’s power to conduct wars, not to initiate them.  (I will have more to say about this in a subsequent post.)

On the other hand, a good bit of modern practice – in conflict with the Constitution’s original allocation of powers – is on John Yoo’s side. In addition, there are decent policy arguments for vesting a war-starting power in the executive, rather than Congress – arguments that the framers considered and rejected. 

So who wins?  I have the text, structure, and historical evidence of original meaning.  John has considerable contrary practice and good (if debatable) policy arguments.

Which view you think correct depends on whether you are committed to the original meaning of the Constitution or believe in a “living constitution” whose meaning shifts, evolves, or changes over time.  Under the former view, the meaning of the Constitution is fixed at the time of its adoption, and established by the best evidence of original meaning.  Under the latter view, practice departing from original understanding can change – or simply define – the meaning of the Constitution. Moreover, as we learn from experience, and as we consider changed circumstances and new policy wisdom, the Constitution can and should adapt to such new insights, producing new understandings. 

The difference between Yoo and me thus turns almost entirely on constitutional interpretive methodology.  I am a pure-as-they-come, original-public-meaning textualist.  (Or so I like to think.)  The meaning of the Constitution is determined by, and only by, the original meaning its words and phrases would have had, in political and linguistic context, to reasonably informed speakers and readers of the English language at the time they were adopted.  What counts are the words of the document, the logic of its structure, and historical evidence of its original public meaning.  What does not count is practice, precedent, or policy at variance with the Constitution’s actual meaning.   

John Yoo is to some extent – on war powers at least – a “living constitutionalist.” What counts most heavily is what works, what seems most sensible from a policy standpoint (at least in the eyes of some), and the evolving pattern formed by established practice and precedent.    

Now, this is not an entirely crazy position. Many legal scholars hold it in various forms.  But it is typically a methodology associated with “judicial activists.”  (Interestingly, this is not so with respect to war powers, an area where most on the Legal Left become transformed into devotees of a strict original-meaning reading of the text – a point of irony to which I will return.)   But this should bother John Yoo, who is usually “originalist” in his methodology.  Calling him a “living constitutionalist” is something of an insult in our common legal circles.  (Sorry, John!)

Am I wrong about this?  Is not the whole burden of John Yoo’s essay that the proper meaning of the Constitution, on the question of who gets to start wars on behalf of the United States, is determined by practice and policy?  Is not the only evidence he draws from original-era historical sources directed at the president’s powers of war-execution and not war-initiation? 

In subsequent posts I hope to take up the details of John’s argument.  

 

This Day in Liberal Judicial Activism—April 20

by Ed Whelan

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

Harper’s complaint will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.

This Day in Liberal Judicial Activism—April 19

by Ed Whelan

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”

Under Douglas’s rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.

2016—Never has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception.

In G.G. v. Gloucester County School Board, a divided panel of the Fourth Circuit defers to the Obama administration’s radical claim that federal law requires any school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.” Never mind that the Obama administration never actually interpreted the particular 1975 regulation in the manner that the panel majority imagined it owed deference to. Never mind that assigning facilities and programs on the basis of biological sex disregards—and thus clearly does not discriminate on the basis of—gender identity.

In August the Supreme Court will block the Fourth Circuit’s ruling from taking effect, and in late October it will grant the school board’s certiorari petition. In March 2017—after the incoming Trump administration repudiates the Obama’s reading of federal law—the Court will vacate the Fourth Circuit’s ruling and remand the case for further consideration.

This Day in Liberal Judicial Activism—April 18

by Ed Whelan

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws.

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.

This Day in Liberal Judicial Activism—April 17

by Ed Whelan

2009—Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Association—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat.

This Day in Liberal Judicial Activism—April 16

by Ed Whelan

2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.”

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

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This Day in Liberal Judicial Activism—April 14

by Ed Whelan

1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”

This Day in Liberal Judicial Activism—April 13

by Ed Whelan

2001—Judge Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman. The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.” Barkett asserts that the district court injunction properly barred “public student prayer”.

This Day in Liberal Judicial Activism—April 12

by Ed Whelan

1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida Supreme Court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.


2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.