On August 29, 2013, given the debate over President Obama’s right to militarily intervene in Syria without Congress’s authorization, the Federalist society held a special Teleforum conference call in which our experts debated the issue. Speaking were John Yoo--Emanuel S. Heller Professor of Law at University of California, Berkeley School of Law--and Sai Prakash, James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor at the University of Virginia School of Law. Dean Reuter, Vice President & Director of Practice Groups at the Federalist Society, was the moderator. You can listen to a recording of the call here.
Yoo began by claiming it is a misinterpretation of the Constitution and would reject consistent practice in American history to hold that the president needs congressional approval to use force abroad. He said that this is evident:
not just a matter of history but becomes clear, but it’s clear in the constitutional text as well as in the different a different structures in the Constitution, and even in the legislative history of the Constitution. First, the consistent interpretation given by the branches of government has been that the president can use force abroad, and that the major check by Congress is not the Declare War Clause but Congress's powers over funding the armed forces: If Congress want to to stop a war all it has to do is not build the president the kind of military he needs in the first place to wage that war, or to cut off the funds for the fighting or never vote for the funds in the first place once the hostilities have started. On the presidential side, the president is the commander in chief and holds the executive power, and I think the tradition in our history and in the history before the Constitution was that the executive power did include the power to use force abroad, which is why presidents have used force abroad, some 130 times. I think by last count there have been only five declarations of war.
Yoo argued that the most important provision in which to understand the Declare War Clause is the rest of the constitutional text:
If you look at the other place where the Constitution talks about war--Article One, Section Ten--that provision bans states from engaging in war. It says, “No State shall . . . engage in any War, unless it shall be actually invaded by Enemies, or the Danger of Invasion be so imminent as not to admit of a Delay, until the Legislature of the United States can be consulted.” That is exactly the way that people who support the Declare War Clause theory think that war powers works between the president and congress. . . . Yet why would the Framers not use that same exact language when it came to the president? Why didn’t they just copy this provision and insert the phrase “no president shall” for "no state shall'?
As the explanation for this, Yoo pointed to British history and said that if you look at the “fights between the executives and the legislatures, the phrase ‘declare war’ never had this meaning. It had more to do with setting the legal status of hostilities. . . . The check on the executive was always the power of the purse.”
According to Yoo, what has really happened over the years is that Congress has attempted to avoid responsibility: “They have granted the president a huge authority for offensive actions. Our military is not designed for homeland defense. It is designed for offensive operations in other people’s countries, and at the same time Congress doesn’t create limits on how that military can be used. So they live in an ideal world where the president takes the initiative, and if it turns out badly they can say ‘we never approved it in the first place.’”
Speaking next, Prakash began by praising Yoo for maintaining his same position regardless of presidential administration and whether or not he supported any particular military action. Prakash also said that Yoo is “to be praised for bringing us back to the Constitution. War powers scholarship before John tended to focus on what the Framers said about the Constitution rather than the Declare War Clause.”
Prakash said that he wholeheartedly agreed that the purse can be used as a check. It could even be an ex ante check: appropriating military funds with various provisos as to how it may be used. Where he differed with Yoo is on the claim that it is the only check. Prakash said he believes the Constitution adopts "a kind of belts and suspenders approach." He noted that Yoo himself agrees that the president can’t unilaterally declare war under the Constitution, whatever one means by “declare war.” The question is: what does that expression mean? Prakash said that according to Yoo’s scholarship, to declare war means to invoke the laws of war. Prakash responded that even at the time of the founding, the Framers didn’t think that formal declarations of war were all that useful. They had a broader sense of what it is to declare war. In the 18th century, he explained, it was widely thought that any decision to go to war was a declaration of war. When a nation had invaded another it had ipso facto declared war. A British Prime Minister said in Parliament, “The most common declaration of war in our age comes from the mouth of cannons.” In the American system, however, authorizing war must be more formalized since Congress acts only via writing. Prakash conceded, “I do understand that practice has varied from this to some extent, certainly more so in modern times,” but he claimed that some of those 130 actions Yoo mentioned were actually authorized by Congress. It doesn’t matter if Congress used the word “war."