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The Powers of War and Peace

By Eugene Kontorovich

John Yoo has become famous for the memoranda he wrote on various aspects of the war on terror while a lawyer at the Justice Department, advocating a broad conception of presidential power in the fields of war and foreign relations. The Powers of War and Peace does not address the particular controversies Yoo dealt with while at Justice (and it is much to his credit that he does not use this occasion to take shots at critics of his government work). Rather, it outlines the broader framework that informs his general understanding of the separation of powers and applies it to some long-standing questions about the war and treaty powers. In this sense, the title is misleading: His arguments do not turn in any significant way on the exigencies of the current conflict or on FDR-style assertions that times of crisis require extraordinary powers.

Yoo argues that pre-Revolutionary British political thought and constitutional practice developed a formal, distinct concept of "executive" and "legislative" powers. In particular, foreign relations and war were regarded as "executive." These notions were studied and adopted by the Founders, with some modifications to reflect the republican circumstances. Thus, when the Constitution provides that "the executive Power shall be vested in a President," Yoo sees it as referring to a definite set of powers and responsibilities, those that had traditionally been regarded as executive. He applies this model -- along with considerable analysis of constitutional text and actual practice -- to current controversies, with mixed results.

The Powers of War and Peace is most convincing when addressing the latter. Yoo makes several important arguments about the role of treaties in the constitutional system, challenging some of the more entrenched positions in foreign relations law. The Constitution provides that treaties shall be "made" by the president and ratified by two-thirds of the Senate. However, a combination of precedent and practice has made it so that deals with foreign nations having the same binding force as treaties can be solemnized without the consent of two-thirds of the Senate. The trick consists in calling these deals "agreements" rather than "treaties." (This is one of the wonderful developments that makes a legal education essential -- and a copy of the Constitution detrimental -- to understanding constitutional law.) Yoo presents a nuanced argument against the interchangeability of treaties with other types of international deals.

He also argues that the Constitution does not make treaties self-executing -- that is, that they do not automatically create domestic legal obligations enforceable by courts. This point is of overwhelming importance as it prevents the president from using the treaty power as a back door to domestic legislation, which is properly the province of Congress. Indeed, some scholars argue that because of our participation in certain treaties, the decisions of international bodies such as the Security Council or the International Court of Justice are as binding as federal legislation on Congress and the courts. Non-self-execution allows the U.S. to participate in broad aspirational human rights treaties without having them override such core constitutional values as the separation of powers and federalism. Finally, Yoo argues that the president should play the leading role in interpreting treaty obligations, a sensible position given that the chief executive negotiates treaties and plays the major role in carrying out their obligations and in determining whether other nations have satisfied their side of bargains. None of this may seem particularly controversial (and the book omits the most expansive and tenuous treaty power arguments Yoo made in his Justice memos), but in the legal academy it is not conventional wisdom.

Yoo's approach to the more high-profile issue of war powers is less satisfactory, perhaps because the problems are more difficult. The Constitution creates a system of separated powers and relies on each branch of government to serve as a check against the abuses of the others. Often, the lines of separation are clear: Congress puts together laws and passes them; the president can veto them; if he does not, he will decide on how to implement them. Yet when it comes to relations with foreign countries, whether they take the form of treaties or wars, the Constitution's lines of authority cross and intertwine. For example, Congress has the power to "declare War," but the president is the commander in chief of the military. Congress can "raise and support Armies," but the president picks the generals.

The common understanding of the division of power between the two branches is that Congress chooses when to fight other countries, while the president controls the conduct of the war. In a more extreme but academically popular version of this position, the president cannot initiate any hostilities without advance congressional authorization, except to repel sudden attacks.

Challenging the dominant model, Yoo argues that the Constitution gives the president a free hand both to start wars and to control their conduct. This necessarily requires him to take an extraordinarily narrow view of Congress's declare-war power. He sees it simply as a power to give a particular legal status to hostilities -- for example, authorizing the seizure of enemy property -- rather than to authorize them.

The Constitution seeks to place limits on government and so rarely places plenary power in any one branch's hands. It would be odd indeed if it gave one man military carte blanche. Yoo recognizes that his broad account of executive power would be more convincing if another branch could exercise an effective check on it. He rightly rejects judicial oversight of warmaking. Instead, he sees Congress as the principal check, through its power to "raise armies" and spend money on them.

Yoo argues that if Congress disapproves of a president's war, it can refuse to appropriate money for it. War is an expensive business, and the commander in chief will not get far without congressional approval. But in Yoo's view, Congress can block a war only indirectly, through the appropriations process. In a rough analogy, the president has sole custody of the keys to the engine of war and sits at the steering wheel -- but only Congress can put gas in the tank. Because Yoo's model of checks and balances places almost exclusive reliance on the power of the purse, his theory can be convincing only if appropriations could in practice be an effective check on presidential war-making. Here his argument is at its thinnest.

When the Constitution was ratified, the federal army numbered fewer than 700 men; there was no naval establishment. The state militias accounted for the bulk of the nation's military capability. The Constitution makes clear that Congress, rather than the president, controls the "calling forth of the militia." Thus, the commander in chief, at the time of the founding, had no means with which to start a war without prior action by Congress. It would be odd if the decision about whether to wage war were placed solely on the shoulders of an official so ill-suited to ensuring its success.

Of course, times have changed. Since World War ii, the United States has fielded a large, permanent military equipped with expensive and complex weapons systems. It is the nature of modern war that an advanced arsenal must be maintained at the ready. At the head of such a host, the president can easily initiate and successfully prosecute many campaigns. As a result, the president can easily start wars without seeking additional appropriations. This belies Yoo's claim that "Congress can simply block a President . . . by doing nothing, by not taking the affirmative step of voting funds." In Yoo's model, Congress's decision to create a military ready to meet any contingency allows the president to do what he will with it. But of course, Congress has no real choice in the matter -- it could hardly leave the nation defenseless by refusing to establish a large standing army.

Yoo goes further, arguing that if the president starts a war Congress does not approve of, it can exercise its constitutional check by cutting off funds during the conflict. But as a check on presidential war-making, Congress's "purse-string" power is qualitatively different from its power to "declare" war, because the decision to start hostilities is substantially different from the decision to terminate them before victory.

Critics have noted that it is unrealistic to expect Congress to defund troops engaged in combat. Yoo devotes too little time to addressing this important concern. He offers no examples of such defunding in American history -- because there are none (nor, it seems from his account, did Parliament tie the purse strings in the middle of a war).[1] Today, even Democrats sincerely opposed to the war in Iraq criticize the President for not sending enough equipment to soldiers there. This should be taken as evidence that the spending power cannot effectively check the power to start wars once the latter has been exercised. But Yoo simply dismisses this as a "failure of political will" on the part of Congress rather than an institutional inability to cut off money. If some Congresses fail to defund wars they dislike, it may be dismissed as a failure of political will. But if it never happens, it may be a failure of the system, or the theory.

Even if yoo is right that such a check is conceivable in theory, one must ask whether it is desirable. For the left, the lesson of Vietnam was that great caution must be taken to avoid entering ill-advised wars. But in hindsight it seems the true moral is that the only thing worse than entering an ill-advised war is losing it. Thus, it would not be a sensible system for Congress to have to block action it considers wrong (a presidentially initiated war) by doing something even worse (stopping appropriations for it). And one should not presume that the Framers intended to create a system in which Congress's only alternative to war was defeat or humiliation.

The spending power is also no check if what the president wants to do is cheap. If Congress wanted to prohibit the torture of captured enemies, cutting off funding for such interrogations would be of little use, since the activity can be carried out with little or no money. If Congress is to have any control over such matters, it must be through direct legislation. But in Yoo's view, such legislation would impermissibly infringe on the president's authority as commander in chief.

Finally, the president could evade spending limitations imposed by Congress by finding alternative sources of financing. Charles i paid for his wars by selling royal properties and borrowing money, thus bypassing Parliament; the English Civil War ensued. Surely the Framers would not have left the Constitution open to this defect. Today, a hard-pressed president might seek out contributions or, worse, loans from other nations. This is not so far-fetched -- the Gulf War was financed in part with foreign contributions, and much of the Iran-contra scandal was about the White House's efforts to obtain alternative funding from foreign nations after Congress cut off support for the Latin American freedom fighters. Or the president could pay for the war from its own proceeds -- for example, by selling assets of a defeated enemy (Iraqi oil, for example). Or perhaps he could sell U.S. military hardware to other nations -- he is, after all, commander in chief of the armed forces. If these expedients seem unlikely or fantastic, it is because no president has been put in a position where he might resort to them -- specifically, because Congress has never cut off funds in the middle of a war.

When Yoo does suggest limits on presidential war powers, it only muddies the waters. He criticizes President Clinton for placing U.S. troops in Kosovo under foreign command. This, he says, violated the Appointments Clause, which requires those given federal executive power to be chosen through a process that involves Congress; foreign commanders do not go through this process, but are given executive power when they can give orders to U.S. troops. True, other presidents have done this, particularly in the World Wars. But they only gave the foreign commanders "operational command" rather than strategic command. Why this makes much of a difference is not clear, but for Yoo, it means Clinton's actions were unconstitutional while previous presidents escape censure.

Yoo's appointments-clause argument is plausible, but hard to reconcile with his other positions. If anything is the president's bailiwick, it is the actual conduct of war, and placing U.S. soldiers under tactical command of foreign officers bears directly on the conduct of the war: If we operate side-by-side with allies, it may be necessary for its successful prosecution. As long as the president can remove the soldiers from foreign command, his "commander in chief" role is preserved -- indeed, it is strengthened through greater flexibility in how units are organized. In other words, Clinton's action was arguably a core "executive" one. Moreover, if, as Yoo says, the policy problem with putting troops under foreign command is that it weakens the president's accountability to Congress and the public, one wonders why Congress can't block such actions by refusing to pay the soldiers' salaries or deployment costs. If the power of the purse is strong enough to stop a war in its tracks, surely it can stop the placing of a small number of troops under a nato commander.

While Yoo generally overstates the extent of executive power, it is unduly limited by the leading alternative model. Indeed, his account is compelling for much the same reason that John Hart Ely's arguments for congressional supremacy proved so forceful a generation ago. In Ely's vision, Congress picks the fights and the president fights them. In Yoo's account, the president wields the sword and Congress the purse. Both appeal because they are tidy.

Yet the reason the debate over the proper allocation of authority remains alive is because the true division is not so neat. The cost of giving broad power to Congress is fecklessness; the cost of giving it to the president is recklessness. Giving both branches a say in whether to commence hostilities and how to prosecute them may be the best way to hedge both risks. But such a model does not admit of precise formulations.

One can begin by noting that the Constitution makes the president commander in chief in peacetime as well as wartime. This, along with the Framers' emphasis on the need for speed, decisiveness, and secrecy in war, suggests the president may unilaterally exercise force in interstitial situations -- preemptive strikes, punitive raids, pinpoint surprise attacks, or to defend against imminent threats short of invasion. To put it differently, even if the president is primarily responsible for prosecuting rather than initiating wars, he must be understood to have the power to fight them successfully. That may require commencing hostilities suddenly without telegraphing the military's intentions to the enemy through congressional debates on C-SPAN.

Such uses of force may in practice commit the nation to wars not authorized in advance by Congress. Indeed, the president need not initiate hostilities to exercise de facto war-starting power. Simply deploying a large troop presence in an area of potential conflict, as President Bush did in the buildup to the Gulf War, may force Congress's hand.

The power to provide for the armed forces is also shared between the branches -- and here Yoo errs in the other direction, understating the authority of the president by making so much of Congress's spending power. While only Congress can appropriate taxpayer money for military purposes, the president can surely provide for his forces from smaller pools of resources. He could, for example, authorize troops to forage for food, or to use captured weaponry. This may not get one far in an era of mechanized warfare, but it underscores the problems with treating, as Yoo does, certain functions as inherently executive or legislative.

On the other hand, notwithstanding the president's role as commander in chief, he does not have plenary authority over the direction of military campaigns. Congress is expressly given the power to make rules for the regulation and discipline of the armed forces. Such rules could limit the president's authority by, for example, prescribing the modes of interrogation that could be used on captured enemies. The limits on Congress's power in this regard are not clear -- surely Congress should not micromanage warfighting. Nor are the limits on the executive's power to precipitate war clear -- surely the president should not swallow up Congress's primary role in picking conflicts.

As Justice Jackson wrote in the Steel Seizure Cases, the seminal modern decision on these issues (and one unduly neglected by Yoo), one

may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. . . . A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.
[2]

In the fifty years since Youngstown, the academic checks and balances have broken down. "Scholarly speculation" resolved itself in favor of a crabbed construction of the executive's war powers. In other areas of constitutional law, it is a cliché that the Constitution did not enact any particular economic theory -- whether the nation pursues capitalism or socialism is not determined by the Founders and cannot be decided by the courts. But the dominant vision of war powers embraces a very particular view of America's role in the world: one under which the U.S. cannot easily project force abroad, superintend a variety of interests across the globe, or respond effectively to the manifold contingencies presenting themselves to a global superpower. If the Constitution does not enact capitalism, it certainly does not enact other fashionable creeds, like isolationism, multilateralism, pacifism, or "soft power."

Though Yoo's book goes too far in its conception of executive power, it does serve as a useful retort to the overly narrow conception that has dominated the field for a generation. On this level, the book not only advances, but also embodies, "checks and balances."

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Notes

1 Congress did close out the Vietnam War by cutting off all funding for combat operations in Indo-China after Aug. 15, 1973. But the war was effectively over by then. Congress had tried to stop the bombing of Cambodia six weeks earlier with a spending bill, but President Nixon had vetoed it. The August deadline was a compromise between Congress and the commander in chief. Yoo does not discuss this episode, which underscores the weakness of the spending power in this context.

2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 592 (1952) (concurring opinion).

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Eugene Kontorovich teaches constitutional and international law as a visiting professor at the University of Chicago Law School and an assistant professor at George Mason University School of Law.

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