Originalism in the Blogs: An Exchange on War Power
It’s well argued on both sides, but I think they’re both wrong.
Professor Yoo repeats his longstanding argument that the President has broad independent constitutional power to initiate war despite Congress’ power “to declare War,” adding this observation:
I think that we’ve been misled by the modern myth that Congress’s power to “declare war” is a shorthand for beginning military hostilities. The Framers fought a number of early wars without a declaration from Congress: conflicts with the Indians from 1789 on, the Quasi-War with France, the Barbary Wars. Of the wars fought under the Constitution during the lifetimes of the Framers themselves, only the War of 1812 received a declaration of war from Congress.
You’d think from this passage that the military engagements he mentions were undertaken on the president’s independent authority. Not so. All of them were authorized by Congress. The post-1789 Indian wars were authorized on a campaign-by-campaign basis (a necessity, since the nation then had effectively no standing army). The Quasi-War was authorized by a series of statutes that gradually increased the amount of force the President was allowed to use against France. The Barbary Wars likewise received congressional authorization – against Tripoli in 1802 and 1804 and Algiers in 1815. (The Tripoli conflict began without congressional authorization when one of Tripoli’s ships attacked a U.S. navy ship, but President Jefferson then asked for and received approval to pursue the conflict further). (References in Louis Fisher, Presidential War Power (2nd ed. 2004), pp. 17-37).
Thus despite Yoo’s implication, early post-ratification practice does not provide a shred of support for broad presidential war powers. Early practice does indicate that a formal declaration of war isn’t required if Congress authorizes military action by statute – as the Supreme Court said in Bas v. Tingy in 1800. But that has nothing to do with the position Yoo is trying to advance.
For all this, Andy McCarthy’s position is even more problematic. At least I understand Yoo’s argument: he thinks that the “declare War” power refers only to formal declarations, leaving the President with power to act without a formal declaration. I think that’s wrong (see here) – in the 18th century “declaring” war included actions initiating hostilities as well as formal declarations, and founding-era commentary (including commentary accompanying the Indian wars, the Quasi-War and the Barbary Wars) clearly shows that the declare war clause was understood to cover all initiations of hostilities. But I see how he might read the text otherwise.
McCarthy’s position, in contrast, is mystifying. He agrees with Yoo (without explaining why) that the President has power, “in the absence of an attack or threatened attack, and without congressional authorization, to use force abroad to protect U.S. national-security interests.” But he rejects the further proposition that “the president may, without congressional authorization, initiate a military attack abroad under circumstances in which the U.S. has not been attacked or threatened, and in which there are no vital U.S. national-security interests at stake.” (Thus he argues, contra Yoo, that the Libya intervention required congressional approval).
I have no idea where he gets his distinction. Congress has power to “declare War.” By negative implication, the President doesn’t have that power. So you have to decide what that power encompasses, on the basis of some combination of 18th century definitions, founding-era commentary and post-ratification practice. McCarthy is in effect saying that starting a war where no vital interests are at stake is “declaring” war, but starting a war where vital interests are at stake is not. Nothing in the text or founding era commentary even faintly suggests this, and McCarthy doesn’t point to anything in support. It may be a good line to draw as a policy matter (though Yoo in response has some fair points why it’s not), but in either case I see no reason to think it’s the line the framers drew.