ON UNILATERAL PRESIDENTIAL WAR POWERS.

• Author: Yoo, John C.
• Position: International Law and U.S. Foreign Policy

Thanks to the Penn Federalist Society for inviting me to participate on this great panel. (1) The only regret I have is that I, a Philadelphia native, could not speak in person, nor join all of you at Pat's or Geno's and teach all of you how to eat cheesesteaks gracefully without letting the Cheez Whiz dribble.

I hope to touch on several ideas today, ranging from the delegation of war powers to the role of international treaties. But they all stem from the powers enshrined in the Constitution, so that is where we should begin too.

Constitutional War Powers

First, I should thank President Joe Biden who, once again, has made a Federalist Society convention a rousing success, this time by bombing Syria just in time for us to talk about its constitutionality. (2)

Let me just briefly explain my position that President Biden's February 26, 2021 attack on Syria, (3) like President Trump's attack on Syria (4) and President Obama's attack on Syria, (5) was constitutional.

Liberals and conservatives often have problems with consistency on war powers. Senator Bernie Sanders, for example, heavily criticized President Trump's attack on Syria, calling it unconstitutional. (6) He did not criticize President Obama's attack on Syria as unconstitutional, and I do not think he has criticized President Biden's attack on Syria.

Inconsistency on war powers has afflicted both originalists and those in favor of a living Constitution. For a long time, conservatives who tend to be originalists were somehow functionalists when it came to war powers. Judge Robert Bork, for example, gave a speech at the Federalist Society many years ago arguing on functionalist grounds that Congress did not have to declare war before the President could launch hostilities under his or her commander-in-chief power. (7) Meanwhile, progressives or liberals, most notably Professor John Hart Ely, were strong originalists when it came to war powers. (8) Professor Ely famously said that all wars, big or small, had to be approved by Congress first, except for cases of self-defense. (9)

I believe that originalism or constitutional interpretation, if properly conducted, shows there is a different system for warmaking policy, one quite different than the domestic legal system where Congress undeniably sets policy that the President carries out under the Take Care Clause.

The Constitution divided what had been a combined set of powers under the British Crown (10) and gave some to Congress--like the power to declare war, the power to raise troops, the power to fund the military (11)--and gave others to the President--like the executive power (12) and, of course, the role of commander in chief. (13) Rather than create a singular process, as with the passage of legislation, (14) the Constitution armed each branch with different powers and decided to let politics sort it out. That is how the practice of war powers has worked out historically. (15)

Let me also say, I have always thought one of the most compelling approaches to the Constitution is that of Chief Justice Marshall in McCulloch v. Maryland. (16) In McCulloch, Chief Justice Marshall reads the clauses of the Constitution in harmony with each other. (17)

If you adopt Chief Justice Marshall's approach, you will see that the Declare War Clause does not create a system that requires Congress to pre-approve the use of force abroad. (18) Take a look at Article I, section 10 of the Constitution. (19) This is the prohibition on states waging war. Notice that, at the end of Article I, section 10, the Constitution says, "No state shall, without the consent of Congress"--paralleling the declare war view of the Constitution--"engage in war"--not declare war--"unless actually invaded, or in such imminent danger as will not admit of delay." (20) Article I, section 10 includes the exceptions in writing that many scholars who think Congress has the dominant hand in war concede must exist, but since they do not appear in the Declare War Clause, they must read it in.

If the Constitution is so clear, so careful in dividing the war powers between the federal government and the States, why did the Framers not use the exact same language to achieve the exact same result when it came to the difference between the President and Congress? Instead, the Framers use very different language. It seems evident that the Framers created a political process rather than a legal process for bringing the United States into war.

Delegating War Powers

The Supreme Court has said that the nondelegation doctrine does not apply to foreign affairs. That is the point of United States v. Curtiss-Wright Export Corp., (21) which is probably the most famous and criticized decision by the Supreme Court on foreign affairs. In Curtiss-Wright, the Court said regardless of whether the non-delegation doctrine applies domestically, it does not apply when it comes to foreign affairs. (22) Justice Sutherland further held that the President had a broad sole organ power to set foreign policy. (23)

That is the current doctrine. In terms of the original understanding, I do not think it would have occurred to the Framers as a question of delegation. What they had in mind was what they had seen in the 100 years of British constitutional history before the Founding. (24) They saw that the Crown and the Parliament fought over war through, primarily, Parliament's power to cut off funds for the Crown's wars. (25)

The Crown would often start a war. (26) Sometimes the king himself would lead the battles without any declaration of war. (27) You would not see Parliament getting upset because there was no declaration of war. Instead, Parliament would control the war through its authority over funds. (28) It would not pass legislation or declarations of war to control warmaking. Instead, Parliament used the harder tool of funding.

For what it is worth, my view on the nondelegation doctrine domestically is that if Congress...