Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
If you agree with me after the last few posts, that the better reading of the constitutional text is that the Constitution gives the President some powers over war, and Congress others, and that the process to decide on war is political, then what does the pro-Congress view rely on? It really relies upon legislative intent, that there are indications of what the Framers believed the text meant.
The pro-Congress side believes that the Framers had a substantive goal -- reduce warmaking overall -- and used a certain process -- Congress's control over making war -- to achieve it. Let me quote from the most prominent constitutional law scholar, John Hart Ely, for this position. If the President and Congress had to agree on war, Ely believed, then the United States would enter fewer wars and those conflicts would arise only after reason and deliberation. As Ely put it,
the point was not to exclude the executive from the decision—if the president’s not on board we’re not going to have much of a war—but rather to ‘clog’ the road to combat by requiring the concurrence of a number of people of various points of view.
Ely relied on three pieces of evidence from the Framing to support this conclusion. First, during the Federal Convention James Madison moved, and the delegates agreed, to change Congress’s power from “make” to “declare” war, leaving to the President the power to repel sudden attacks. Second, James Wilson defended the Constitution in the Pennsylvania ratifying convention by declaring that “[t]his system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress” because the “important power of declaring war” is vested in Congress. Third, Joseph Story observed in his Commentaries that “the power of declaring war . . . is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation."
Ely and others also rely on a variety of quotes, some from Jefferson (on how the Constitution's vesting of power in Congress would tie up the "dogs of war,"), and from Madison about how the Constitution intentionally gave Congress the power to start wars with the vesting of the declare war power. The problem with these types of quotes is that they are historically anachronistic. Jefferson, for example, was not a Framer -- he was in Paris at the time of the writing and ratification of the Constitution. Madison's claim about Congress's power to declare war was on point, but it came in 1793, in the midst of the Helvidius-Pacificus debates over the Neutrality Proclamation. It could not have expressed the understanding of those who ratified the Constitution because it came well after the fact in the midst of a partisan fight over foreign policy. Same goes for Story -- his Commentaries on the Constitution comes decades after the ratification, and Story was too young himself to have participated (he would have been eight at the time).
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Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
I absolutely agree that we shouldn't give much weight to secondary sources of "legislative intent," but should rather focus on the text and structure of the Constitution. That said, there seems to be solid scholarship (at least Prof. Prakash at UVA) that "declare war" had a broad meaning in the founding era - I'd love to know your thoughts on that. It seems to me that the best way to make sense of both the text and some of the contemporaneous statements is to distinguish offensive vs. defensive actions. If Professor Prakash is right, then "declare war" covered virtually all offensive actions (and Congress could do its "declaring" without any particular formality, e.g., the post 9/11 authorization to use military force). This leaves the executive power to take any defensive measures necessary to repel attack; in such situations there is nothing to "declare" because, having been attacked, somebody else has "declared" war on us. That reading is consistent with Art. I, section 10 since (as Richard points out) engage is the broader term, it covers the defensive action, which is permissible, but also the offensive action, which is forbidden to the states.
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
With all due respect and not trying to be confrontational but I am curious, Professor Yoo, how you define "oringinal meaning?" You seem to have stated in your initial post that it was the orginal public meaning, but in the course of other posts you have moved to what seems to be a pure textualist reading of the the document when it suits your purposes and a very broad implied powered reading where the executive is involved. Now, you are dismismissing applicable quotes (save the Story, you are right to dismiss it) as anachronistic when they are far from it (although maybe taken out of context by future scholars) While Jefferson wasn't a framer of the Constituion, he was a Founder. If we limit originial meaning only to the Framers of the Constitution, originial meaning is in deep trouble and is useless as an interpretative device. Yet, if we understand the context of the events and the theory that drove the founding generation, and not just the framers, life and meaning is given the constitution and what you argue is anachronistic may very well be of the utmost importance.
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Slightly off topic, but, Professor Yoo, what about the War Powers Resolution? It seems to be quite specific about the three conditions under which a president can introduce the American military into hostilities, and I don't see how any of those conditions have been met. No declaration of war. No specific statutory authorization. And Libya certainly hasn't created a state of national emergency by attacking us.
Yet many, many commentators assert that the War Powers Resolution authorizes the President's actions.
As a non-lawyer, I find this quite confusing. Can you clarify?
Oct '10
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Margaret Ball: Slightly off topic, but, Professor Yoo, what about the War Powers Resolution? It seems to be quite specific about the three conditions under which a president can introduce the American military into hostilities, and I don't see how any of those conditions have been met. No declaration of war. No specific statutory authorization. And Libya certainly hasn't created a state of national emergency by attacking us.
Yet many, many commentators assert that the War Powers Resolution authorizes the President's actions.
As a non-lawyer, I find this quite confusing. Can you clarify? · Mar 27 at 11:26am
Not attempting to answer for the Professor, here is a pdf on the War Powers Resolution prepared for Congress. You can read up on it yourself.
Edited on March 28, 2011 at 1:19amFeb '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
The point is that Jefferson wasn't part of the debate on the framing and so his comments are his interpretation and as irrelevant to the intent of the framers as are mine. Lawyers consider the plain meaning of a statute and legislative intent when interpreting legislation. If Joe Senator wasn't part of the debate, his interpretation is bubkis.
What your point doesn't explain but John's does is 200 years of Presidential war-making--including Jefferson and the Barbary Pirates--that pro-Congress advocates claim are extra-constitutional and to which our Congresses have turned a blind eye.
Constitutionally rogue presidents and impotent Congresses? Yoo finally offers insight into why this phenomenon, that has gone unchallenged for 200 years, has come to be and it makes more sense than attributing incompetence to the Congress and extra constitutional flights of fancy to the Presidents.
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
So, Jefferson as founding generation is nothing but actions as president are? that's having a cake and eating it too. Of course we should give weight to the entire founding generation, and not just the founders. the whole generation spoke on issues of power, constitutionalism, etc. To deny them an authoritative voice is to deny all American constitutional thinking before 1787 and after! Presidential war-making, ala Jefferson or Washington with Indians at Fallen Timbers was in response to attacks on Americans or American Property. They were never taken as unprovoked actions like Libya, today. Following these self-defense actions came Treaties between the two nations, which, in turn led to Senatorial action. What Professor Yoo is arguing is a monarchical Presidency who can take the nation into war because he deems it so, and not in response to some attack or other unprovoked action. Under his theory, Congress isn't important. Its good, politically, to have them on board but not necessary. The Framers saw this as dangerous to liberty and monarchal in nature, and so did the entire bumpkissed founding generation!
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Typing on my iPad, sorry for the terrible punctuation, etc.
Feb '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Sorry, Aaron, but you cannot look at Jefferson as speaking to the intent of the framers when he wasn't there. That's like saying you can rely on the opinions of Ronald Reagan as to the intent of a national law that was signed when he was Governor of CA even though he wasn't part of the debate on that law. Maybe he even wrote letters to his friends in Washington expounding on this or that aspect of said law, but still, those are his opinions as an outsider and are not part of the legislative record and are not probative as to intent. That's just absurd.
If Congress has the power of the purse, it isn't monarchical.
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Sally,
You are missing my point. We can't rely only on the Constitution Convention: first, the records of it weren't published until 1836, so there was not "legislative record" that could be drawn upon in subsequent decades. Second, you're dismissing a whole host of other sources of the founding period: ratification debates, and entire Revolutionary era where these sorts of arguments were hammered out. This goes back to what I said a few comments above (no. 2): "Yet, if we understand the context of the events and the theory that drove the founding generation, and not just the framers, life and meaning is given the constitution and what you argue is anachronistic may very well be of the utmost importance." It was these events and framers that shaped the writing of the constitution. One didn't need the sealed records of the convention or private letters of people to see how 22 years worth of debates on these issues (1765-1787) shaped what came out of that private meeting in Philadelphia.
Understanding the context of the Founding and not only the Framing puts this whole debate in different light, one that shows Professor Yoo's errors.
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
Re: the oft-referred Barbary Pirates example. The full context of these events are often neglected. Muslim pirates had harassed American ships for decades, often with violence visited upon Americans. Jefferson's actions were in response to recent attacks upon American seamen and property; he was responding to a direct provocation. With victory, a treaty was signed by the US the Barbary Coast, thereby bringing an element of sovereignty to ratify Jefferson's retaliation.
To Professor Yoo, it doesn't matter what the reason, Congress need not worry why a President engages in warring. This is exactly the sort of monarchical prerogative that frightened the Founders (and not just the Framers). The purse was indeed a critical weapon in curbing that prerogative, but so was requiring Congress to declare war! It kept the Monarch, er, President, from attacking nations on whims to fulfill desires of conquest and whatnot, which inevitably expanded his power at the expanse of people's property and liberty.
Events of the 20th century may validate Professor Yoo's expansive view, but, try as he might, this is certainly not the view of the founding period or framers.
Jan '11
Re: Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent