All Power to the President

The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo (University of Chicago Press, 378 pages, $29.00)

George W. Bush was caught flat-footed on the morning of September 11, 2001. Intent on exercising executive power without any interference from the courts or Congress, the White House turned to John Yoo -- a young law professor on leave to serve as a mid-level official in the Justice Department -- to provide the constitutional foundation for the war on terror.

Yoo cranked out a series of now-infamous memos on topics ranging from the use of torture to the government's authority to eavesdrop on American citizens, attempting to square the Bush-Cheney demand for unfettered power with the limits imposed by the Constitution. In the shadow of 9-11, Yoo formulated a theory to support the claim that presidential powers in foreign affairs had steadily (and constitutionally) expanded over the past 200 years to the point where they are effectively unlimited. According to Yoo, the president can lawfully initiate war without congressional approval and reinterpret, or even abrogate, treaties such as the Geneva Convention on the Treatment of Prisoners of War.

But if you are a conservative -- and Yoo most certainly qualifies -- there are problems with this argument. If presidential powers can constitutionally expand in one realm, how can they be contained in others? Although unilateral executive power may be the dream of conservatives in foreign affairs (at least while a fellow conservative occupies the White House), it is their worst nightmare in domestic policy. Couldn't some future internationally minded president use these same powers to enter into or reinterpret agreements with other countries so as to bind American citizens to rules and requirements imposed by international organizations? What would stop a president from using such powers, say, to prohibit the death penalty or to regulate energy use?

Now back in his role as constitutional law scholar, Yoo has produced a book that tries to square this circle, developing a radical constitutional theory that endorses an evolutionary, “living constitution” to support ever-expanding claims to executive powers in war and diplomacy, yet rejects this same approach when applied to domestic affairs. To achieve this result, Yoo has to break with many fellow conservatives, who instantly assume the fetal position at the mention of a “living constitution.” But he wins them back by demonstrating that his approach turns an obscure constitutional provision -- the Treaty Clause -- into a firewall that will prevent any blowback from the unfettered executive powers he has just crafted.

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Yoo's first problem is that most modern-day conservatives interpret the Constitution through the doctrine of originalism, stressing the original intent of the framers. But the available evidence from those most intimately involved with the design of the Constitution offers little support for Yoo's theory of sweeping presidential powers. For example, at the Constitutional Convention in 1787, Charles Pinckney said that giving exclusive powers to the president over war and peace “would render the Executive a Monarchy of the worst kind.” To get around such statements by the framers, Yoo breaks from originalists such as Clarence Thomas (for whom Yoo clerked), ignoring the fairly clear objectives shared by those who wrote the Constitution, and instead relies almost exclusively on a far more ambiguous “original understanding” of the entire founding generation. From the available historical record, Yoo believes, we can decipher what this generation “would have,” “could have,” or should have understood the Constitution to mean.

In war powers, Yoo implausibly insists, a generation that had only recently battled king and Parliament in the Revolution “decided to mimic the British forms of government.” And while he does offer a fair bit of evidence that these sentiments were widely held among well-educated Americans, he fails to recognize how self-consciously revolutionary this new system of government was, at least in the minds of its actual architects. Edmund Randolph, for example, spoke for many at the Convention when he said that Americans rejected Britain “as our prototype” and instead “required a different form of government.” In Federalist 37, James Madison wrote that other confederacies had failed and could “furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued.” The most the Americans could do, Madison insisted, was “to avoid the errors suggested by the past experience of other countries.” As Louis Fisher convincingly demonstrates in his book, Presidential War Power, the framers “decisively rejected the British model” in war, treaties, and the appointment power, among other things.

The president's war and foreign-policy powers, however, have grown dramatically, whether or not they should have. The development of modern weapons that can reach the United States with virtually no warning and the crisis atmosphere of the Cold War encouraged Congress to cede more power in foreign affairs to the president. And while the Supreme Court has never formally endorsed this shift, the justices have made clear that they would intervene only if Congress and the president were at an institutional impasse.

Yoo argues that this sort of evolutionary, “living constitution” rationale is acceptable in foreign policy because, despite the shifting balance, Congress still retains the ultimate check against executive abuse -- the power to fund, or to refuse to fund, executive military adventures, which is all the Constitution requires.

And that brings us to a second problem with Yoo's radical constitutional theory. The power of the purse remains a key weapon in the congressional arsenal. But just as changed circumstances have enlarged presidential powers, those same circumstances have undermined the legislature's ability to use its most important weapon.

The purse still belongs to Congress. Only Congress can raise taxes, and congressional authorization is still needed before any checks can be drawn against the U.S. treasury. In the late 18th century -- with no large standing armies or ships in ports around the world -- a president had to secure funds in advance for any military campaign. Today, however, a president no longer has to go to Congress before waging war. With more than 1.4 million active-duty forces and another 860,000 or more active reserves, the commander in chief can deploy the armed forces on a moment's notice. The power of the purse is, at best, a way to stop adventures after they have started. But, in practice, what kind of power is that? If we are going to accept the need to abide by an evolutionary change in the powers of the president, why shouldn't we insist on an evolutionary change in the powers meant to check and balance the executive? That is simply not a question Yoo considers.

Yoo insists that whenever Congress wants to end a war, it can simply vote to cut off all funds for troops in the field. Technically, that's true. But it is politically impossible for members of Congress to withdraw funds from ongoing military operations without opening themselves to charges that they are denying our soldiers the ability to defend themselves. Just ask Representative Jack Murtha.

When a president asks Congress to support a war in advance, moreover, a majority decides the question. But if legislators reconsider and try to cut off funds, the president will almost certainly veto the attempt. In that case, Congress will need two-thirds approval to override and exercise what Yoo sees as its one and only power.

This is not a purely theoretical problem. In 1970, after more than 47,000 American deaths in Vietnam, Congress voted to repeal the Tonkin Gulf Resolution, which had been used since 1964 by Presidents Lyndon Johnson and Richard Nixon as evidence of congressional authorization of the war. But Nixon said that the repeal was “without binding force or effect,” and he continued to pursue the war for another three years. So why didn't Congress cut off the money? The war's opponents tried. Solid majorities voted to end funds for military operations in 1970, and again in 1971. Congress finally prevailed in 1973, but the law did not go into effect until August 15, well after the Paris Peace Accords ended the war. The power of the purse was no match for a determined president once troops were already on the ground. Indeed, never in the modern era has Congress successfully used this power to prevent or stop a major war.

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Yoo is not the first conservative legal scholar to try to devise a way to have his cake (strong, centralized power in war and foreign affairs) and eat it, too (but weak, decentralized power in domestic affairs). Nor is he the first to attempt to do so by insisting that the Constitution tolerates (even encourages) a hard line between domestic and foreign affairs powers.

The first may well have been George Sutherland, a Republican senator from Utah who later became a Supreme Court justice. America's belated and ill-prepared entry into World War I posed a real dilemma for conservatives like Sutherland who argued that Americans could no longer insist that the Constitution strictly limited government in foreign and domestic affairs alike. Unwilling to endorse broad governmental power across the board, conservatives sought a way to read the Constitution narrowly at home and broadly when it came to foreign policy.

That is precisely what Sutherland tried to do when, as a Supreme Court justice, he wrote the opinion in United States v. Curtiss-Wright Export, an often-misunderstood decision that is widely cited as the basis for executive war powers. This was a case, however, not about war powers, but about the delegation of power by Congress to the executive. The central issue was whether Congress could delegate to the president the power to suspend arms sales in a war-torn region of South America. And if the answer was “yes” -- well, what would stop that same Congress from delegating to the president powers over the national economy or other domestic concerns? The answer Sutherland devised was a convoluted constitutional theory drawing a sharp distinction between foreign-policy and domestic powers and asserting that Congress could delegate broad authority in one yet not in the other.

Today's conservatives face a dilemma similar to Sutherland's: How can they make sure that nearly unlimited executive power in foreign policy won't allow some future president to sign off on global economic agreements or international conventions that will bind Americans to rules that might limit cherished liberties or constrain national sovereignty?

The solution, Yoo says, is the Treaty Clause. A president has two ways to formalize any international obligation or commitment. One is by negotiating a treaty and then securing the consent of two-thirds of the Senate. The other is a congressional-executive agreement, which involves ordinary legislation and requires only a simple majority in each house of Congress. Treaties have fallen out of favor since the Senate scuttled President Woodrow Wilson's Versailles Treaty in 1919. And though we still use treaties from time to time, the choice between a treaty and a legislative-executive agreement has been largely driven by strategic considerations, rather than any clear constitutional theory. This, Yoo says, is a mistake.

Yoo argues that treaties are required when the United States is making agreements dealing with war and peace, diplomacy, human rights, and arms control, not to mention the treatment of enemy combatants and noncombatants. Since Yoo believes these are exclusive executive powers, he holds that the president is constitutionally free to ignore, revise, or revoke treaties in such areas at will.

According to the Constitution, treaties are the “supreme law of the land.” The president lacks the power to suspend laws, so it would appear that he has no power to suspend treaties. But, admittedly, this is an unresolved issue. Although the Constitution is very clear about what it takes for a treaty to come into effect, it says nothing about what it takes to change or revoke an existing treaty. Congress has not yet formally squared off against presidents who have claimed this power, and the Supreme Court has also dodged the question: “If Congress chooses not to confront the president,” Justice Lewis Powell wrote in a 1979 treaty-clause case, “it is not our task to do so.”

And though the president should have a free hand in areas Yoo believes are assigned to the executive, whenever an agreement with another country binds and regulates “private individuals and their conduct,” congressional legislation is required. If an agreement involves powers and duties expressly assigned to Congress -- like raising taxes, regulating commerce, setting criminal penalties or pollution limits -- the president must secure the support of Congress and cannot alter or adjust these obligations on his own authority. Some agreements, of course, involve both foreign-policy and domestic obligations. Those will actually be even harder to put into effect because, in Yoo's view, they require a treaty as well as implementing legislation passed by Congress.

This interpretation would, of course, make it difficult for the president to use his foreign-policy powers to impose domestic obligations. The people would have a chance to be heard -- and to block such agreements -- through the House of Representatives.

Is Yoo right? He has struggled mightily to build a constitutional fortification allowing broad executive power in foreign affairs, yet barring it at home. But, like France's Maginot Line, his barrier protects one flank, only to leave another dangerously exposed.

Splitting a single, unified constitution into two radically different halves poses real dangers. If a president's powers have no limits when it comes to waging war or protecting national security, how do we stop the president from using those powers at home, not necessarily to sell out American sovereignty, but to evade, suspend, and even override civil liberties, individual rights, and the separation of powers?

We got a taste of this problem from Richard Nixon, who made no secret of his view that his war and foreign-policy powers gave him unrestricted authority at home to ensure national security. Defending his administration's unauthorized use of wiretaps and domestic surveillance in 1973, Nixon insisted that the Constitution itself “permitted and sometimes even required such measures to protect the national security in the public interest.” When it came to national security, Nixon argued, no other branch of government could restrict the president. Asked in a television interview about the legality of the Huston Plan, which would have authorized burglary, wiretaps, “black-bag” jobs, and domestic surveillance of domestic opponents of the Vietnam War, Nixon replied, “When the president does it, that means that it is not illegal.”

This same, far-from-original understanding lies behind the Bush administration's claims. While in the government, Yoo and his Justice Department superior, Jay Bybee, insisted that President Bush on his own authority as commander in chief could order torture (as most would define it) and that Congress had no constitutional authority to intervene. “Even if an interrogation method arguably were to violate” the law as passed by Congress, Bybee and Yoo wrote, “the statute would be unconstitutional” because it would encroach “on the President's constitutional power to conduct a military campaign.” Any effort by Congress that “interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional,” they concluded.

These interrogations were not taking place on American soil. But this past December, The New York Times disclosed that since 2002 the president had ordered the National Security Agency to spy on American citizens on American soil without a warrant. The president's foreign-policy powers, as articulated by Yoo, are the basis of the administration's claims that this surveillance is constitutional.

Since then, President Bush has made it clear that he believes that neither Congress nor the Supreme Court has the authority to check or limit the scope and reach of his power. When Bush signed a defense appropriation bill that included a provision prohibiting U.S. military personnel from subjecting prisoners anywhere in the world to cruel, inhumane, or degrading treatment -- a provision the Senate approved by the margin of 90 to 9 -- Bush attached a statement declaring that the executive branch will construe this provision in a manner consistent with the president's constitutional authority “and consistent with the constitutional limitations on the judicial power,” which will assist in achieving the objective of “protecting the American people from further terrorist attacks.” Ultimately, Bush is saying we will have a Constitution in which the president's prerogative powers trump any limits, whether those powers are used abroad or at home, whenever a president invokes a claim of national security.

Our system of government, Justice Felix Frankfurter once noted, “no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority” and “labors under restrictions from which other governments are free.” But, said Frankfurter, it “was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford.”

If 9-11 really has made that price too high, we must rethink the system as a whole. But Yoo's approach, which splits the existing Constitution in two, is a prescription for disaster that would let the president wage war and abrogate treaties as he sees fit, with devastating consequences for our foreign policy and, inevitably, for our rights and liberties at home.

Gordon Silverstein, assistant professor of political science at the University of California, Berkeley, is the author of Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy and the forthcoming How Law Kills Politics.

Related: For more on this subject, read Paul Starr's column titled "Bush vs. Constitution."