The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11.

• Author: Nielson, Aaron
• Position: Book review

THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. BY JOHN YOO. THE UNIVERSITY OF CHICAGO PRESS, 2005.

During his confirmation hearings before the Senate Judiciary Committee, then-Judge Samuel Alito was asked by Senator Joseph Biden whether he agreed with the central claims in Professor John Yoo's book The Powers of War and Peace. (1) Biden, after quoting excerpts from the book and saying that "informed, intelligent" people were familiar with Yoo's argument, asked Alito, "Do you think the President has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there is an immediate threat to our national security?" (2)

Judge Alito, when pressed, answered, "I have not read Professor Yoo's book...." (3) Later, on the Senate floor, Biden stated:

I will vote no on the nomination of Judge Alito to the Supreme Court for three reasons: first, his expansive view of executive power.... I asked Judge Alito whether he agreed with Professor Yoo's reasoning that would allow the President under his absolute power--even in the absence of an emergency or imminent threat--to invade another country, to invade Iran tomorrow, no matter what Congress says. Judge Alito declined to answer this basic, fundamental question. (4) Few books can reasonably be used to justify voting against a potential Supreme Court Justice's confirmation. Yoo's book, however, is not ordinary. Its claims of broad presidential powers are, to put it mildly, provocative. Moreover, its timeliness contributes significantly to its divisiveness. The United States is engaged in military action across the globe. "Enemy combatants" have been captured and are being held in executive detention. Allegations of "domestic spying" by the National Security Agency are featured on the front pages of the nation's most widely circulated newspapers, with some in Congress even calling for President Bush's impeachment. (5) These factors make The Powers of War and Peace so politically toxic that Alito's failure to reject its premises out of hand was, for many, "radical." (6)

The jury is still out on Yoo's version of constitutional history. The historical underpinnings for his claims of broad executive power have been and will continue to be vigorously debated. (7) At the very least, one must acknowledge, as Senator Biden did, that Yoo "is a very bright guy." (8) However, to focus solely on the foreign affairs implications of Yoo's book would be a mistake. Implicit in The Powers of War and Peace is an indirect argument for more limits on domestic presidential power. Moreover, since the President's domestic powers are intertwined with the powers of Congress and those of the judiciary, this indirect argument for a more restricted domestic President, if accepted, would necessarily require limiting a great deal of the federal government's power over domestic issues.

In this book review, I begin by setting out Yoo's presidential foreign affairs powers argument, and then I briefly explain why his historical observations might not be accurate. I then present a counterargument that, even if Yoo's history is right, that history might not be sufficiently relevant to support his presidential foreign affairs powers argument given the massive expansion of federal power since the Founding. The Framers might have only entrusted the President with broad foreign affairs authority on the condition that the President's domestic powers would be carefully limited, but subsequent events may have undermined that necessary predicate. If one views the Constitution as a contract, then the modern expansion of the President's domestic powers may require greater limits on the President's foreign affairs authority. However, I will show that this counterargument against Yoo's originalism is critically flawed because, even if the President's domestic powers have increased in ways that the Framers could not have foreseen, it does not follow a priori that the President's foreign affairs powers should be limited in response to these developments.

Finally, I will demonstrate that, in addition to making a direct argument for robust presidential foreign affairs authority, The Powers of War and Peace makes an indirect argument for narrowing the President's domestic powers. If Yoo's historical claims are accurate and the counterargument about the relevancy of his claims is flawed, then in order to avoid an overly powerful President, it might be necessary to cut back on the President's domestic powers. To do that, however, would require dramatically rethinking a great deal of modern constitutional law. Nonetheless, suggesting such a dramatic rethinking might be precisely what Yoo intends.

1. YOO's PRESIDENTIAL FOREIGN AFFAIRS POWERS ARGUMENT

   The Powers of War and Peace is about more than just war. It is an attempt to comprehensively explain, as a matter of original understanding, the Constitution's entire foreign affairs apparatus. Yoo tackles issues such as whether the founding generation understood treaties to have direct domestic effect, whether international law was understood to be binding, the process by which the nation was supposed to withdraw from treaties, and the role Congress was to play in beginning, regulating, and ending international conflicts. Based on his assessment of the historical record, Yoo argues that the presidency ought to have broad foreign affairs powers today.

   Yoo's central claim is that, as originally understood, there was a common thematic element in how the Constitution was to direct the complex drama of American international involvement. As he explains, this commonality was the notion that flexibility is needed in foreign affairs:

   While the bulk of the foreign affairs power was vested in the executive, the legislature retained control over the domestic effects of these decisions through its control over legislation and funding. Courts did not play a significant role. This was a flexible system for making foreign policy in which the political branches could opt to cooperate or compete. The Constitution did not intend to institute a fixed, legalistic process for the making of war or treaties. (9) Yoo contends that because of the unitary nature of the executive office, the Framers believed that the President could most easily adapt to quick changes in the international landscape. Thus, the President was given the bulk of the government's foreign affairs authority. However, where decisions about foreign affairs melt into domestic decision making, it was understood that Congress must have the final say.

   Yoo makes a number of bold claims in elaborating on this central argument. First, he contends that "flexibility means there is no one constitutionally correct way for waging war. The President need not receive a declaration of war before engaging the U.S. armed forces in hostilities." (10) Second, "[a]s to treaties, the President, not Congress or the courts, has the primary initiative to make, interpret, and terminate international agreements...." (11) Third, "[t]reaties may not automatically regulate matters within the authority of the Congress or the states under our constitutional framework." (12) Fourth, "congressional-executive agreement[s], as applied to subjects under Congress's exclusive constitutional authority, tend to preserve Congress's role in regulating those areas, rather than ceding them to the executive branch." (13) Fifth, "Article I ... gives [Congress] a blocking role in treaty-making. By withholding.., legislation or funding, Congress can prevent a treaty from taking domestic effect." (14) Sixth--and this list is not exhaustive--the President can "violate international law in the national interest." (15)

   In order to support such controversial contentions, Yoo focuses on an originalist view of the Constitution, with extensive assessment of the Constitution's text, its primarily British roots, its structure, and the practices since the time of the Founding. Yoo also points to more modern examples as evidence that the flexible scheme that the founding generation purportedly intended is still alive and well. Frequently, Presidents authorize military actions without preceding acts of Congress. (16) Presidents interpret and disregard treaties relatively regularly, (17) and the Supreme Court almost never gets involved in foreign affairs. (18) Yoo writes: "the unsettled nature of foreign affairs does not arise from a systematic defect in the constitutional regime ... but instead is its conscious product.... The deepest questions of ... foreign relations law remain open because the Constitution wants it that way." (19)

   Consider Yoo's assertion that the President was originally understood to be able to freely deploy the military, subject only to congressional power to raise and fund the army. To support this position, Yoo focuses on the British model of foreign affairs that existed at the time of the founding. (20) He argues that under the British approach, the executive initiated and conducted conflicts, while "the legislature primarily played a role by funding the wars ... and impeaching ministers." (21) As one would expect, "a dense network of 'subconstitutional' understandings" between the branches developed. (22) This is the political model that Yoo believes the United States has adopted.

   For additional evidence, Yoo looks to the pre-1789 practices of the states and the Continental Congress. "[T]he common practice of the states either assumed that the governors had broad warmaking authority, or explicitly gave them such power in terms reminiscent of the British constitution...." (23) Only South Carolina "decided to rein in the warmaking powers of the executive.... Unlike her sister states, South Carolina required formal legislative approval of the executive's decisions on war...." (24) However, this is the exception that proves the rule because "if the...