King for Four Years?

by Cliopatria

Georgetown Law Prof. David Cole takes on administration supporter John Yoo's new book on constitutional powers. His conclusion? [via] Yoo's history is terrible, but he's supplying the kind of rationalizations that we seem to need:

Yoo's evidence does not undermine the conclusion that the framers intended Congress to take responsibility for the decision to send the nation into war. But in some sense, arguments against his theory are academic. Modern practice is closer to Yoo's view than to the framers' vision. Beginning with the Korean War, presidents have routinely involved the nation in military conflicts without waiting for Congress to authorize their initiatives. Yoo notes that while the nation has been involved in approximately 125 military conflicts, Congress has declared war only five times. Were the framers lacking in practical judgment when they gave Congress this power?

The question of whether Yoo is trying to reconstitute a monarchy seems like a sort of fresh question, but we've been arguing about the"Imperial Presidency" for a generation now, at least. Monarchies, particularly constitutional ones, are just executive branches without elections....

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Oscar Chamberlain - 11/11/2005

On this point we disagree. Here are the relevant lines from Article I, section 8

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:

13. To provide and maintain a navy:

14. To make rules for the government and regulation of the land and naval forces:

15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:

It is clear that Congress has wide latitude in setting rules for the military and to determine whether or not we should wage war. It seems to me odd, with no guidance from the constitution, to claim that Congress has no power to determine with whom we should be at war.

Then president does not have the sole power to determine our enemies.

Pierre Mauboussin - 11/11/2005

As Oscar notes, the flexibility the Constitution accords the President was originally conceived at a time when the expense (and perceived political threat) of a large standng army was a regarded as a sufficient check on the President's martial impulses. However, I would stress that the Founders also clearly anticipated that the US would need a strong military: in which case, the Constitution's separation of powers was deliberately crafted so that the Congress could not have it both ways in the sense of funding a large military because of a perceived threat but then limiting the President's ability to use it. In my view, actions such as Congressional stipulations that forbid the use of military funding for specified military purposes (such as in Vietnam) clearly and illicitly overstep the boundary between Congressional and Executive authority by using the purse as means of giving orders to the military.

Oscar Chamberlain - 11/10/2005

The framers-with the possible exception of Alexander Hamilton- certainly did not want an executive with the level of power that Yoo suggests. Most assuredly, nothing in the ratification debate suggested that sort of unlimited power.

However, the executive was left with considerable flexibility. A president might have to act well in advance of Congress in defense of the country. There was also a strong desire to allow presidents to suppress domestic disturbances, whether slave revolts or upcountry rebellions. Of course, these are defensive actions. Responses to immediate threats.

Unfortunately, the Founders did not anticipate a president with an extremely large military at his disposal and the techological ability to move quickly against any part of the world before any of the consitutional processes that could inhibit such action could take hold.

In short, any president can get us deeply into a war despite Congress. And ever since James K. Polk, presidents have known that Congress will not pull the rug out from under troops in the field, early in a conflict.

The one limit on the president today, really, is that the public wants some sort of authorization from Congress if the war can be anticipated.