'Powers of a king'?

Via masterchef's bookmarks, the Boston Globe travels to John Yoo's little world:

IN JOHN YOO'S world, President Bush didn't need to ask Congress for permission to invade Iraq. And if the special forces captured a terrorist suspect who might know of an upcoming attack on the New York subway, Bush could order him placed on a torture rack-regardless of treaties the US has signed or whether Congress had passed laws banning torture.

Yoo is an academic-a Berkeley law professor-but these aren't exactly theoretical issues. The Supreme Court faces several cases concerning how much control the president has over military detainees. And last week, Secretary of State Condoleezza Rice told the Senate Foreign Relations Committee that the president has the right to attack Syria, without congressional approval, if he deems that a necessary move in the war on terror.

Professor Yoo was author of the sloppy memo redefining torture that has badly burned the administration. Now he's author of a book amplifying on his singular reading of the Constitution. His publisher, the University of Chicago Press, has posted an interview.

While I agree with Yoo that the War Powers Resolution legislative veto provision would never withstand serious judicial scrutiny, Yoo's central argument is a circular one: presidents can make war without legislative authorization because they have been doing so throughout most of the twentieth century.

Of course, when war is already a present condition, then -- as Hamilton put it -- "War, of itself, gives to the parties a mutual right to kill in battle, and to capture the persons and property of each other. This is a rule of natural law; a necessary and inevitable consequence of the state of war." And war-making authority is the president's. But, as Hamilton later wrote  in the same article:

That instrument has only provided affirmatively, that, "The Congress shall have power to declare War;" the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War.

This is a crucial distinction. However, Yoo's supporting claim is a historical reading wherein Madison's declared check on presidential war power was Congress' appropriations authority; thus implying that the absence of a Madisonian claim using Article I, section 8, clause 11 means presidential war power is absolute.

Many scholars have argued that the declare war clause is the root of Congress's control over war; they argue that military hostilities cannot begin without Congress's ex ante authorization. But the history of the clause gives no indication that this was its original purpose. Many critics of the Constitution claimed that it vested too much power in the executive over the military; not a single defender of the Constitution responded that the declare war clause would give Congress any power to prevent this. Rather, James Madison in the Virginia ratifying convention argued that it would be Congress's power of the purse that would control the executive sword.

This a confused point. Power over the military is the president's sole perogative; but that doesn't mean a president's decision-making discretion is not congressionally constrained.* (I'm guessing his interpretation of originalist intent is a highly Blackstonian reading. While certain British traditions certainly influenced the American convention, Yoo forgets that it is the British tradition of royal dictatorship and demagoguery that inspired the entire American experiment, for crying out loud.) This, likewise, is fallacious nonsense; especially given Clauses 10 and 11, giving Congress rule-making authority over war and captures. Ultimately, however, Yoo's arguments are constructed to govern the absence of explicit textual support in Article II, section 2 for his claims.

So let's go to the Constitutional Convention proceedings, specifically Madison's notes:

Mr. Madison and Mr Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.

Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr. Elseworth. there is a material difference between the cases of making war, and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.

Mr. Mason was agst giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make".

On the Motion to insert declare--in place of Make, it was agreed to.

In a 1798 letter to Jefferson, Madison wrote:

The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.

Obviously the power to declare war -- which Yoo is arguing was not as crucial or significant as appropriations power -- is actually the root of national sovereignty, and one the Framers clearly put in Congress' hands for reasons having to do with suspicion of executive authority, in order to check the potential demagogue. Yoo's pseudo-originalist approach seems pretty shaky so far.

In another crucial weakness, in the interview Yoo conflates Congressional and Executive authority to support his claim that president's can unilaterally ignore treaties. Treaties, under Article VI, "shall be the supreme Law of the Land." While I agree that Congress can certainly overturn treaties, since doing so is a legislative act, there is no basis -- textual or otherwise -- for arguing that such a legislative function was somehow devolved on the president. Yoo will argue that in practice president's have ignored treaties, but that is again merely begging the question, and a dodgy attempt to transform particular historical events into a legal abstraction. Like Louis Fisher, I would argue that Congress' abdication of its power in recent history does not imply it no longer has such authority. The Constitution's purpose is to oppose the arbitrary exercise of authority, yet Yoo is arguing that his inherent powers theory validates such arbitrariness.

On this point, I'll quote Washington:

The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.

It seems that Yoo is making an "innovative" constitutional argument for absolute presidential authority that ignores the fact that the entire premise of the US Constitution is the fragmentation of authority.

(Note: First, I make this critique reading these supplementary materials, I don't have the book yet. Second, this January post also sets out my views on "inherent" executive power.)

* Addendum (2:48 pm): Alexander Hamilton illuminates this distinction far more elegantly, in Federalist 69, within a discussion refuting anti-federalist analogies of the President to the British monarch, one which now refutes Yoo's spurious claim that the Declaration Clause wasn't intended to constrain the executive:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

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