04/20/2017

Gregory Maggs: A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution (85 Geo. Wash. L. Rev. 397 (2017)) on SSRN.  Here is the abstract

Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of Confederation and a table linking provisions of the Constitution to their antecedents in the Articles.

This is another in Professor Maggs' useful series that also includes examinations of Founding-era dictionaries, the records of the Philadelphia Convention, and the ratification debates.

04/19/2017

"Inherent" Judicial Power
Michael Ramsey

Yesterday's Supreme Court decision in Goodyear Tire and Rubber Co. v. Haeger unanimously held that federal courts have "inherent" power to sanction defendants for wrongfully withholding evidence, but only to the extent of actual harm caused to the plaintiff.  From the majority opinion (per Justice Kagan):

Federal courts possess certain “inherent powers,” not conferred by rule or statute, “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626, 630–631 (1962). That authority includes “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45 (1991). And one permissible sanction is an “assessment of attorney’s fees”—an order, like the one issued here, instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other side. Id., at 45.

Here is my brief comment on the idea of "inherent" powers, a concept that sometimes causes difficulties.  In our system of delegated powers, federal courts, like all other federal entities, can exercise only powers granted to them by the Constitution or federal law.  Any other conclusion violates the Tenth Amendment, which, though sometimes dismissed as a tautology, was added to the Constitution to make exactly this important point.  Calling something an "inherent" power does not obviate the need to find a source for it in the Constitution.  (The same important point applies to "inherent" executive powers of the President).  It would be better to call such things "independent constitutional powers" to emphasize that these are powers possessed independent of any grant from another branch but not powers possessed independent of the Constitution.

So does the Constitution grant federal courts independent constitutional powers such as the one posited in Goodyear?  Probably.  The only plausible constitutional source is Article III, Section 1, which declares that "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  It's very likely that this provision conveys substantive power to decide cases and conduct judicial proceedings.  Nothing else in Article III conveys this power; if Article III does not convey it, federal courts (including the Supreme Court) depend on Congress to provide it, but that's not how Congress proceeded in the 1789 Judiciary Act, which established courts but did not give them all their necessary case-adjudicating powers.  As a result, assuming the sanctioning power was part of the traditional powers of courts, it would be conveyed to federal courts by Article III, Section 1, and thus is an independent constitutional power (or "inherent" power, if you prefer).

And by parallel reasoning, the textual source for "inherent" executive powers (such as foreign affairs powers) is Article II, Section 1.  See (of course) here.

But I wish Justice Kagan had cited Article III, Section 1 in that key paragraph, just to make it all clear.

04/18/2017

Eugene Kontorovich on Emoluments
Michael Ramsey

At Volokh Conspiracy, Eugene Kontorovich, George Washington was the first president to stay in the real estate business.  Here is the introduction:

In [the April 14] Wall Street Journal, I have an op-ed, "Did George Washington Take ‘Emoluments’ "? It examines the first president’s extensive and hands-on business affairs to get a better handle on the nature of constitutionally prohibited “foreign emoluments.

Here’s an excerpt (article requires a subscription):

Mr. Trump is not the first president to have business dealings with foreigners. That was actually George Washington, whose conduct in office has been a model for every president.

By the 1790s, Washington was wealthy primarily because of real estate — renting and selling his vast holdings. As with Mr. Trump’s hotels, Washington’s renters or purchasers could include foreigners.

The president received constant reports from his nephew and subsequent managers and wrote to them at least monthly… This belies the notion that the Constitution limits a president’s management of, or benefit from, his existing business ventures.
***
One letter written by Washington deserves great attention in the current debate. On Dec. 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture, an entity newly created and funded by Parliament at the initiative of William Pitt. The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young, with his agricultural connections, could find and organize some would-be farmers in his home country and send them over.

The op-ed is drawn from a larger research project on Washington’s business interests and the prohibition on emoluments.

(Thanks to Seth Barrett Tillman for the pointer).

RELATED:  Andy Grewal (Iowa) has posted this article on SSRN: The Foreign Emoluments Clause and the Chief Executive (Minnesota Law Review, Vol. 102, 2017).  Here is the abstract:

The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting "emoluments" from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read "emolument" as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that "emoluments," as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in exchange for the U.S. Officer's performance of services (office-related compensation). The term does not refer to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. The Office of Legal Counsel and Comptroller General have struggled with the issues, but their approaches suffer from conceptual flaws. This Article proposes an alternative three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.

Larry Solum's Ten-Part Defense of Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has completed his ten (!) part series defending originalism.  There are links to all ten posts here.  (The defense is based on this longer article (143 pages), as effectively summarized in this congressional testimony (only 12 pages)).  So, originalism, at any length you'd like.

Here is the overall conclusion from the final post:

My goal in these ten posts has been to provide an overview of the case for originalism.  The core of that case is contained in two claims:

  • The Fixation Thesis: The communicative content of the constitutional text is fixed at the time each provision is framed and ratified.
  • The Constraint Principle: Constitutional practice should be constrained by the communicative content of the text; at a minimum, constraint requires consistency with the text.

The Fixation Thesis should not be controversial.  When we interpret old documents, we use the conventional semantic meanings of the words and phrases that were in effect at the time the document was written.

The Constraint Principle makes a normative claim for which two clusters of pro tanto reasons were provided: (1) the Constraint Principle better achieves the rule of law than does living constitutionalism, because (a) it better serves the rule of law values of stability, predictability, certainty, consistency, and publicity, (b) it better prevents a downward spiral of politicization of the law, and (c) it avoid the great evil of judicial tyranny; (2) the Constraint Principle better achieves legitimacy than does living constitutionalism, because (a) it provides greater democratic legitimacy than does a committee of nine officials with life terms who are unconstrained by the text, (b) it avoids the transparency problem associated with most forms of living constitutionalism, and (c) it limits judges to their legitimate judicial role.

For originalism to be meaningfully different than living constitutionalism, it must be the case that the original meaning of constitutional text is not indeterminate and that the degree of underdeterminacy is not so substantial as to permit almost all living constitutionalist results.  In fact, the original meaning is quite determinate with respect to the hard-wired constitution (the basic plan of government) and even seemingly open-textured provisions such as the Equal Protection Clause are far more determinate than many nonoriginalists assume.

One of the themes of these posts is that the "great debate" is complex.  This should come as no surprise.  Originalists and living constitutionalists have been arguing with each other and among themselves for decades.  Nonetheless, progress can be made in this debate.  The aim of this series of posts has been to show that progress is possible, if originalists and nonoriginalist living constitutionalists are willing to debate the issues on the merits, with an open mind and a dedication to scholarly rigor.

04/17/2017

Justice Gorsuch's First Case
Michael Ramsey

...was Perry v. Merit Systems Protection Board.  At SCOTUSblog, Amy Howe reports on the argument, including:

During his March confirmation hearing, then-Judge Neil Gorsuch repeatedly professed his belief that judges should adhere to the plain language of a law, without considering other factors such as the law’s history or what Congress might have intended when it enacted the law. After his first oral argument as a Supreme Court justice, it became clear that, when it comes to taking a statute literally, Gorsuch meant exactly what he said.

...

Chris Landau was the first attorney to argue before Justice Gorsuch, urging the court to rule that mixed cases like his client’s should go to the district court. Landau fielded questions from several different justices – including Kennedy, Roberts, and Justices Ruth Bader Ginsburg and Samuel Alito – before, at approximately 10:13 a.m., he found himself on the receiving end of Gorsuch’s first question as a justice. Exactly what part, Gorsuch wanted to know, of the federal statute at issue provided for the path that Landau was advocating? Landau started to respond by pointing to a Supreme Court case, but he didn’t get far before Gorsuch interrupted him to focus again on what he described as “the plain language” of the statute.

A few minutes later, Landau sought to reassure the justices that his client was not asking the Supreme Court to “break new ground” with its ruling. But Gorsuch again seemed skeptical, suggesting that what Landau was in fact asking the justices to do was to “just continue to make it up.” Gorsuch seemed to agree with Landau that the result his client is seeking should be in the text of the governing statute – but, Gorsuch cautioned, it isn’t.

(And congratulations to my former co-clerk Chris Landau on another fine argument, even if he wasn't relying on the plain meaning).

John Vlahoplus: On The Meaning of “Considered as Natural Born”
Michael Ramsey

In the Wake Forest Law Review Online, John Vlahoplus (Independent): On The Meaning of “Considered as Natural Born”. Here is the introduction (footnotes omitted):

Scholars have long debated what to make of the provision in the Naturalization Act of 1790 that foreign-born children of American parents “shall be considered as natural born citizens . . .”  Did the Founders who sat in the First Congress use that phrase to tell us something important about the presidential eligibility of foreign-born citizens like Senator Ted Cruz? Did they intend to declare that foreign-born children of American parents are natural born citizens under the substantive constitutional meaning of the term? Alternatively, did they mean to tell us that anyone who is born a citizen is a natural born citizen, so that the Constitution they drafted and ratified gives Congress the power to define “natural born” status by granting statutory citizenship at birth? Or did they merely intend to naturalize the children without declaring or defining presidential eligibility?

Most scholars examine earlier uses of “natural born subject” to illuminate the meaning of “natural born citizen.”  None, however, have examined earlier uses of the phrase “considered as natural born” in order to understand its meaning in the final terms of the Naturalization Act of 1790.  This Article does.  It concludes that prescriptive uses like that in the Act merely naturalized persons or granted them limited rights enjoyed by the natural born, and that descriptive uses reflect an important feature of the controversy over colonial subject status prior to Independence.  Members of the First Congress did not use the phrase to mean someone who is a citizen at birth or eligible to the presidency.

04/16/2017

James Allan: Constitutional Interpretation, Democracy and Antonin Scalia
Michael Ramsey

James Allan (The University of Queensland - T.C. Beirne School of Law) has posted One of My Favourite Judges: Constitutional Interpretation, Democracy and Antonin Scalia (Br. J. Am. Leg. Studies 6(1) (2017)) on SSRN. Here is the abstract: 

This paper sets out why Antonin Scalia was a great judge. It looks at his approach to judging, to constitutional interpretation and to the interplay between strong judicial review and democratic decision-making.

Professor Allan is always an amusingly insightful commentator with a distinct perspective, and this paper doesn't disappoint.  For a little more context, here is the introduction (footnotes omitted):

It is best to start by making it clear that on some big issues I differed with the views of former U.S. Supreme Court Justice Antonin Scalia. For instance, I am a critic of bills of rights, be they of the entrenched, constitutionalized United States and Canadian varieties or of the statutory United Kingdom and New Zealand varieties. By contrast, Justice Antonin Scalia supported the U.S.-style bill of rights that he was regularly called upon to interpret.  Furthermore, I am an ‘Original Intended Meaning’ (‘OIM’) originalist, the sort that thinks it is authors’ intentions that count, that provide the legitimate and authoritative external standards that pointof-application interpreters ought to seek and that can constrain those interpreters in a way that ‘living tree/living Constitution’ and ‘moral’ interpretations never can. Justice Scalia rejected that sort of OIM originalism, sometimes quite sharply, in favor of searching for what a well-educated and knowledgeable person at the time would have taken the words to mean. Scalia’s version of originalism is known as ‘textualism’ or as ‘Original Public Meaning’ or ‘OPM’ or ‘new’ originalism.

I mention those differences, indeed will come back to them below, for the sake of providing the reader with a bit of perspective on what follows. Bear them in mind because in big picture terms in this article I come to praise Antonin Scalia, not to bury him. In fact Scalia was (and is) one of my favorite judges. As many readers will realize, that is not a sentiment that is or was widely held by law professors in the United States. And it was probably even less widely held by legal academics in my native Canada, or in the U.K., or in New Zealand, or in Australia. Justice Scalia was despised by many law professors in the Anglo-American world and his views were thoroughly rejected by more still. Not me though. As a law professor who has worked now for 11 years in Australia, and for a decade before that in New Zealand, with teaching sabbaticals in the U.S. and Canada, I am quite partial to the man, and to his jurisprudence. As I said, he is one of my favorite judges.

The goal of this article is to give you an idea of why that is, why this nonAmerican law professor who disagreed with him on a couple of big issues might nevertheless have that view. I will consider it a bonus if, for a reader or two, the good that Scalia did is not interred with his bones.

04/15/2017

Reinsch, Barnett and Baude on Constitutional Liquidation
Michael Ramsey

At Liberty Law Blog, Richard Reinsch: The Liquid Constitution.  Keypoint:

What should receive more discussion [in the originalism/nonoriginalism debate] is the notion, expressed in The Federalist essays  37, 78, and 82, of “Liquidating” the meaning of the provisions of the Constitution. Publius means by that that it is necessary to make clear terms that are apt to be contested.  And what isn’t contested in the heat of conflict? Specifically the discussion in Federalist 37 is most apt for our current distressing situation. It is there that Publius discourses on the difficulty of ascertaining the boundary between federal and state powers. He states,

Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all.”

Elsewhere in that essay, Publius notes, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussion.”

And in conclusion:

What we must consider then is the case for a different originalism. As Gordon Lloyd observes in an essay entitled “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835″:

[T]he meaning of the Framers’s understanding is to be discovered in the decisions of the State Ratifying conventions, the records of the Federal Convention and the First Congress, and such contemporaneous expositions as the Federalist. Moreover, the Constitution requires a “liquidation of meaning” over time; put differently, Madisonian originalism requires both “initial consent” and “recurring consent.”

Public debate is how we reach “the cool and deliberate sense of the community.” As Willmoore Kendall observes:

As disciples of Publius, what we should want above all is for the relevant questions to  be decided by the “deliberate sense of the community”—and the deliberate sense of the community is not about the intent of the Founders (it was, above all, that we should govern ourselves, and so prove to mankind that self-government is possible); and not, Talmudically … but about the merits of the competing policy alternatives amongst which we, as a self-governing people, are obliged to choose. Which is to say: about the appropriateness of competing policies to our conception of ourselves as a people, to our historic destiny as we understand it, to our settled views as to the nature of the good society. (1)

Progressives have looked to the Court to pave a constitutional path of egalitarianism and emancipation that eagerly departs from the text, believing, as they do, that they stand atop history and understand its architectonic flow. But originalism further enthrones the judiciary, putting our elites on the Bench, to chart a course back to the Founders. In short, we play a game of elites by relying on a few men and women in black robes. What’s the best play, though, with respect to the republican foundation of the Constitution and with regard to our long-term interests as those who value limited government? Putting authority to decide the meaning of the Constitution in the hands of the self-governing people is the superior move.

At Volokh Conspiracy, Randy Barnett and Will Baude respond (separately).  Professor Barnett asks

[H]ow is this process of a “self-governing people” deciding “the meaning of the Constitution” supposed to work? Should we have a plebiscite to decide the meaning of the foundational document by majority vote? Should they be national plebiscites, or state by state (and how would the latter be operationalized)? No doubt Mr. Reinsch would reject national or state plebiscites, favoring instead putting the “authority to decide the meaning of the Constitution in the hands of” Congress and state legislatures. Yet these bodies are comprised of a very small subset of “the people.” Congress is a mere 535 persons out of 318 million. And these legislative bodies are themselves supposed to be bound by the law of the Constitution, not make it. How then can it fall to them to interpret the meaning of the constraints imposed upon them? ...

Publius never confused “the people themselves” with their agents in the legislature. Indeed, the Framers’ “republican” form of government was designed by them to protect the liberties of the people from their legislatures (and from other governmental actors). “We the People” are truly “self-governing” insofar as we are allowed to exercise the liberties defined by our private rights. But the founders well-knew that “We the People” do not literally “govern themselves” politically. (Recall the Declaration’s phrase “consent of the governed.”) So the Constitution was put in writing precisely so it would provide the law that governs those who govern We the People.

Professor Baude adds: Some cold water on the liquidation debate.  Key point:

I want to speak up in defense of a particular conception of liquidation, which I think was James Madison’s. Madison’s notion of constitutional liquidation, properly understood, need not be hostile to originalism. My “Constitutional Liquidation” paper is still very much a work in progress, so much of the framework will have to wait until later, but at least one element of liquidation is important for these purposes: Liquidation only operated to the extent that the Constitution itself was open-ended or less than clear. Indeterminacy was a prerequisite for liquidation.

And:

[L]iquidation is compatible, indeed I would say especially compatible, with the original, departmentalist understanding of the judicial power. On that understanding, the judiciary did have special authority to bind other branches through its judgments, when issued by a court of competent jurisdiction. But its opinions were not binding in the same way, especially as to cases not before the court. The opinions, I think, can contribute to the liquidation of constitutional meaning, but in cooperation with other branches, not to the exclusion of them.

So I will be the first to agree that it is worth paying attention to the founding-era concept of liquidation. But in my view that concept turns out not to transcend originalism, but rather to be fully consistent with it.

04/14/2017

Jeffrey Toobin on Leonard Leo and the Gorsuch Nomination
Michael Ramsey

In The New Yorker, Jeffrey Toobin: The Conservative Pipeline to the Supreme Court: With the Federalist Society, Leonard Leo has reared a generation of originalist élites. The selection of Neil Gorsuch is just his latest achievement.

With pretty fair-minded and interesting background on The Federalist Society's Leonard Leo, leading to this:

One day last spring, Leo received an invitation to join Donald Trump for lunch at a law firm’s offices in Washington. Trump was getting closer to clinching the Republican nomination, but his political history still provoked wariness among Party ideologists. Trump, it turned out, wanted Leo to compile a list, which the campaign would make public, of Trump’s likely nominees to the Supreme Court, in the event that he won the election. As Leo recounted their conversation, Trump said, “People don’t know who I am on these issues, and I want to give people a sense of that.” No campaign in history had put out such a list. Leo recalled, “I said, ‘That’s a great idea—you’re creating a brand.’ ”

The question, then, became on what basis Leo should select the candidates. What was Trump looking for in his nominees? Throughout the campaign, Trump had said that he would appoint pro-life Justices to the Supreme Court. But Leo told me that his conversations with Trump focused elsewhere. “The President was very clear about what he wanted,” Leo said. “What he said in very explicit terms was he wanted people who were exceptionally well qualified, quote, ‘respected by all, not weak’—those are his words, ‘not weak’—and somebody who was going to, quote, ‘interpret the Constitution the way the Framers meant it to be.’ ” The statement was, in effect, a call for an originalist.

04/13/2017

A Comment from David Weisberg on Originalism and Syria (Updated: Plus John Yoo and More)
Michael Ramsey

David Weisberg comments:

Re Originalism and the attack on Syria: I have argued that Originalism is irreparably flawed.  Notwithstanding those flaws, I think everyone agrees that Originalism was designed as a tool to foster an appropriate degree of judicial restraint.  Judicial restraint is the end; originalism is merely the means.  This has important implications for the Syria question, which has already been discussed in several posts (here and here).

Two versions: “The Congress shall have power…” (1) “to declare war”, or (2) “to declare war and to authorize use of military force, but such authorization shall not be necessary when the president, as commander-in-chief, responds to a sudden attack on the United States”.   In both 1788 and 2017, these two versions had and have public meanings that are different from each other.  I would think that, if a person is an original-public-meaning Originalist, the inevitable conclusion is that Pres. Trump has not “violated” the Constitution, because he has not even purported to declare war on Syria.

But, for an Originalist, whether or not Pres. Trump has in some sense “violated” the Constitution should be of secondary importance.  The much more fundamental and important question is: should the courts have any role in determining what military measures the Trump administration may take against Syria, or is that a non-justiciable political question?  This question is more fundamental because it directly implicates the principle of judicial restraint, which was the motivation for formulating Originalism in the first place.

I believe it would be impossible to conceive of a more obviously non-justiciable political question than the propriety of the use of military force.  For the courts to intervene would be to interfere simultaneously with powers explicitly granted to both political branches of government: the president (“commander-in-chief”) and Congress (“declare war”).  Such judicial intervention might put the lives of U.S. soldiers at risk; it could also result in a disastrous deterioration of morale.  (“Why should any of us obey orders to fight?  My lawyer says the courts will declare this conflict unconstitutional.”)

If a substantial number of members of Congress disagree with the president’s use of force, they can cut off funding for such use.  They could also impeach him.  But no one should want unelected jurists, who in most cases have no military experience and no access to expert military advice, to be making decisions about how the U.S. deploys its armed forces.  No matter what history tells us about the “declare war” clause, can anyone seriously argue that the founders contemplated that—of all the three branches of government—it would be the federal courts that would have the final say in deciding whether U.S. forces can be deployed in a particular set of circumstances?

Prof. Bruce Ackerman, in the NY Times, reports that the D.C. Federal District Court ruled that his client, a U.S. military officer, cannot challenge former-Pres. Obama’s military initiatives against Islamic State, because it raises a non-justiciable political question.  Prof. Ackerman believes that result was wrong.  In my opinion, the result was entirely correct.

I disagree with the premise of this comment.  Originalism is not simply a means to the end of judicial restraint.  Rather , I think it is principally about the rule of law, both within and outside the judicial branch.  Applied to war powers (and other presidential powers that are not easily reviewable) it is about a rule of law for the executive.  Whether the political question doctrine is consistent with originalism is a separate question.  But even apart from any possibility of judicial review, originalism seeks an objective foundation on which we can base our constitutional criticisms (or defenses) of executive action.

RELATED:  At Cato At Liberty, Gene Healy: Weak Legal Pretext for Trump’s Drive-By Tomahawking (drawing on originalist writing [including mine; thanks!] to criticize the Syria strike).

FURTHER UPDATE:  John Yoo (Berkeley/AEI) has this partially originalist defense of the Syria strike at NRO: Trump’s Syria Strike Was Constitutional.  It's the same basic argument so I won't respond in detail.  But two quick points.  He says:

Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates, and Russian revolutionaries; to fight North Korean and Chinese Communists in Korea; to engineer regime changes in South and Central America; and to prevent human-rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf war, the 2001 invasion of Afghanistan, and the 2003 Iraq War, received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back from President Trump to Presidents Abraham Lincoln, Thomas Jefferson, and George Washington.

(1) I doubt the accuracy/relevance of his claims about the early practice.  I do not know what "Indians" are meant or what action by George Washington he has in mind.  I do not think Washington authorized force without congressional authorization except maybe in immediate self-defense.  If Professor Yoo thinks differently, a cite would be great; I think he's just mistaken on this point.  (I discuss Washington's use of force in this article and conclude he may have actually been too cautious, constitutionally speaking.)  As to Jefferson and Barbary pirates, I assume he's thinking of the Tripoli episode, but as I've said over and over (and over), the only reason anyone (including Hamilton) thought Jefferson could use non-defensive force without congressional approval is that Tripoli declared war first.  (The above-linked article covers this debate also).  I am not aware of any practice from the immediate post-ratification era that supports the no-authorization-needed-for-a-first-strike argument.  And I have looked into this a lot.

(2) Professor Yoo rests much on modern practice.  But as I argue in this article, modern practice is a bit overstated on this point -- the only post-Vietnam episodes that clearly support the President acting alone in analogous circumstances are Kosovo and Libya.  (As shown in the pretty cool chart on the last page, if I do say so myself).

AND FURTHER:  From Michael Paulsen (St. Thomas): Trump’s First Unconstitutional War.  Key paragraphs: 

The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force. The word “declare” was deliberately and carefully chosen at the Constitutional Convention, after an earlier draft that would have granted Congress the power to “make” war was rejected. Two reasons for the change appear in the records of the Convention’s debates. First, the delegates wished to preserve the traditional executive power to respond to, repel, or defend against sudden (or imminent) attacks on the nation. The right to national defense would remain with the executive branch. Thus, if another nation were to launch an attack against the nation — that is, if someone else were to start a war with the United States — the president would not need to wait for Congress to act before responding with force. Second, the delegates thought that “declare” was a better word choice than “make,” which could be mistaken to suggest that it was Congress’s job to conduct war. The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.

In all respects, the debate reveals the consensus understanding that the president would not have the power to initiate a war without congressional approval. Virtually everybody in the founding generation — Washington, Adams, Jefferson, Madison, Hamilton, Jay, and countless others — agreed on this principle. Nothing in the text of the Constitution; nothing in its structure or logic; and nothing in the contemporary historical record supports the unilateral power of the president to take the nation into a new state of war by himself. The most that can be said is that the president, as commander-in-chief, retains the executive power to respond to actual or threatened attacks, to rescue American civilians or troops when they are in imminent danger, and to take actions to preserve, protect, and defend the nation from cataclysmic harm in an emergency. There are borderline, arguable situations in each category, to be sure. But offensive military action against a nation with which we are not already engaged in hostilities, and involving none of these exceptional situations, falls completely outside the scope of the president’s legitimate constitutional authority.

Agreed.

AND A FURTHER UPDATE: DAVID WEISBERG RESPONDS:

Michael Paulsen has written:  “The phrase ‘declare war’ in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.”  Prof. Ramsey agrees with Prof. Paulsen. 

The OED says the phrase “To declare war” means “to make formal and public proclamation of hostilities against another power”; this meaning has been valid, according to the OED, at least since 1552.  The OED offers no other meaning for the phrase.  I hope we would all agree that there is a difference between making a decision and making a formal proclamation about a decision.

There were discussions at the Constitutional Convention about what language to use, but ultimately the phrase “to declare war” was settled on to specify the power to be given to Congress.  Here is what I don’t understand: is Prof. Paulsen saying that the phrase was “universally understood” to mean “the making of the decision…etc.” in addition to the meaning assigned by the OED, or is he saying that the phrase was “universally understood” to have a meaning different from the meaning assigned by the OED?

If it is the latter, I will say, with all due respect to Prof. Paulsen, that I think the OED is a more authoritative source of etymologies than he is.  If Prof. Paulsen is saying that what was “universally understood” was in addition to the OED meaning, then wouldn’t any careful lawyer have insisted that the constitutional provision be drafted so: “to declare war, or to initiate a state of war with another nation, power, or force”?  These are extremely important issues—the use of military force—in the life of a nation.  Wouldn’t the founders have wanted to expend a few additional words to make their position perfectly clear?  Or, after discussions of the issue, did they intentionally, deliberately, knowingly leave the area beyond “to declare war” vague and indeterminate?  I think the founders were at least as competent as lawyers as we are, so I vote for the latter.  And that is why I think Trump’s missile strike didn’t violate the Constitution.