-
SEQUESTER: The Horror!
March 1, 2013 | 4 comments
-
SOTU Preview: Human Props, Budget Fights, and Wedge Issues
February 12, 2013 | 0 comments
-
Hello, I Must Be Going
August 14, 2012 | 18 comments
-
Weekend Political Wrap-Up, Paul Ryan Edition
August 12, 2012 | 16 comments
-
Esquire Blogger Sees Paul Ryan, Shreds His Safety Net
August 11, 2012 | 13 comments
The Spectacle Blog
Notice that nowhere in this brief argument for presidential wars does John Yoo cite anything from the actual text of the Constitution. This is an assertion of unenumerated presidential power that seems to render the congressional power to declare war meaningless.
View all comments (25) | Leave a comment
More Blog Posts by W. James Antle, III
http://spectator.org/blog/2011/03/25/yoove-got-to-be-kidding
Follow us:
ADVERTISEMENT
SPONSORED LINKS
FLASHBACK TO: 1995
-
Pope Culture
A man of faith in a godless age is hitting Americans where it hurts.
-
Why the GOP Does Not, Like, Totally Suck
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
-
Dames at Sea
-
In the Absence of Guns
In Britain, defending your property can get you life.
-
The Metaphysical Martini
-
Counting the Costs of Clintonism
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
-
Chuck McHagel
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
-
The Legacy of Old John and Mother Fresh-Roasted
-
It’s the Best Time of the Year
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
-
The Bush Crack-Up
Was the President done in by the economy, or by the politics of the economy?
Clip of the Day
ADVERTISEMENT
Jonah| 3.25.11 @ 1:29PM
I thought Yoo was a Conservative.
Alan Brooks| 3.25.11 @ 3:25PM
Europe will do it- it's across their pond. Don't all get your panties in a bunch concerning such fine legalistic points; leave it to the barristers.
B Dubb| 3.25.11 @ 1:43PM
He is a conservative. He brings in the context of the Constitution to show how the checks and balances are supposed to work in the instance of war. It is hypocritical to claim to support the Constitution and the intent of the founders only when it serves libertarian goals. The Constitution must be respected (along with intent) for everything.
The Libya attacks are stupid, irresponsible, and altogether a terrible idea. Yes, but unconstitutional is something that cannot be said about them.
Red Phillips | 3.25.11 @ 1:59PM
Bringing in the context of the Constitution is precisely what he is not doing. It is clear that the Founders were deliberately attempting to get away from a system whereby the ability to plunge the whole of the country into war was vested in one man (the King). That is why they vested diplomacy in general in the Executive but vested war declaring (starting) in the Congress, the body that represents the whole of the people. These executive supremacy arguments that some are trying to make do render the power to declare war meaningless as Jim says. Please explain to me what the Founders were intending by vesting the power to declare war with Congress, if your theory is correct?
bd57| 3.25.11 @ 3:13PM
I have to wonder whether we read the same posting by Yoo - I can't disagree more with your characterization of it.
The founders revolted against a strong executive and tried a government without one in the Articles of Confederation. When that didn't work, they drafted the Constitution, in the process of which they designated the President "commander in chief."
The Constitution doesn't say what that means - at least, not explicitly. What Yoo says is that, from the time of ratification to the present, it's been understood the Constitution does not require a Congressional declaration of war in every instance as a condition precedent to commencing a military operation. You can argue about WHERE the line should be drawn - history doesn't support a claim that there's no line at all.
Red Phillips | 3.25.11 @ 4:50PM
Making the President the Commander-in-Chief of the armed forces was intended to place the ultimate control over the armed forces in the hands of a civilian, to avoid the dangers inherent with an independent military. C-in-C is more of a title than a job description.
"it's been understood the Constitution does not require a Congressional declaration of war in every instance as a condition precedent to commencing a military operation"
No one is arguing that it does in the case of emergent responses, especially at the time of the Founding when communication and travel times were not what they are today.
The issue is that the Founders did not foresee a supreme executive wielding the military in any way he sees fit as a tool of statecraft. As I have pointed out before, the Founders seriously debated whether we should even have a standing army. The idea that Congress was responsible for "raising" armies assumes that massive ones weren't already sitting around waiting to be moved into duty on the whim of the President. And the fact that military appropriations could only be for two years at a time was a compromise with the anti-standing army folks.
This idea of a supreme executive commanding the US military in its role as world policeman is largely a Cold War creation.
This interpretation is not originalism. At best it is hair-splitting strict constructionism that argues by absence. "Well the Constitution doesn't say blah, blah, blah, ..." It is an argument of convenience to justify crazy nonsense the Founders never imagined.
David T| 3.25.11 @ 2:55PM
Yoo is wrong and so are you. The Founders recognized that the chief executive needed the power to respond quickly to immediate threats to our national security. Obama's Libyan foray does not meet that test; therefore, it is unconstitutional.
ncatty| 3.25.11 @ 3:03PM
Initiating war with Libya, which has not attacked us, without Congressional approval is unconstitutional. The President has, however, consulted with and received the approval of the UN for this "humanitarian" operation. He thinks this is all the authority he needs. Ugh.
Alan Brooks| 3.25.11 @ 3:30PM
C'mon, the frogs will do the fighting. That way they will have a say in the negotiations. You think the frogs did not deliberate in the last six weeks on this? you betcha they go over 'n' over all the angles.
bd57| 3.25.11 @ 2:30PM
Article II, sec. 2 identifies the President as the commander in chief of Army and Navy of the United States. Yoo identifies the commander in chief language as the source of the power claimed.
The Constitution doesn't explicitly define the parameters of the "commander in chief" power. Yoo argues that, based on past history, Obama's actions are within the generally accepted parameters of those powers (subject, of course, to the self-interested claim of limitations on the same by the legislative branch).
Disagreeing with an argument is one thing, mischaracterizing it is quite another.
W. James Antle III | 3.25.11 @ 3:06PM
The trouble with both your argument and his is that you are ascribing to the commander in chief power something that is specifically an enumerated power of Congress. What's relevant isn't what presidents have done in the past -- it's not as if presidents have never violated the Constitution -- but whether there is any basis for this belief in the text of the Constitution itself, the intentions of those who wrote it, and most important of all in the intentions of those who ratified it.
Yoo is arguing that the president can order the invasion of a foreign country that has not attacked the United States without the approval of Congress and that if Congress doesn't like it, it can defund the war. That expansive interpretation of the commander in chief power renders the congressional power to declare war meaningless.
bd57| 3.25.11 @ 3:23PM
Jim:
First, unless you can point to specific language which says what has been considered constitutional in the past isn't permitted, you're kinda stuck with what everyone who came before Libya (and O'bumma) thought was permitted. There's a concept in the law called estoppel - if you're going to declare something which was previously permitted unacceptable, you need to tell everyone who has relied on the old understanding that the rules are changing first.
Second - and this is really more to your point, IMO - your second paragraph makes a very cogent argument against Obama's Libya operation fitting within what has historically been considered a permissible exercise of Presidential Power. THAT'S NOT AN ARGUMENT THAT THE POWER DOESN'T EXIST - it's an argument about the location of "the line."
Yoo's arguing about the location of the line - the "Constitutional" argument says (at least, as I'm reading it) "there is no line."
Here's my point - we're debating whether there is a line rather than whether Obama crossed it. Shouldn't whether he crossed it be our focus?
Red Phillips | 3.25.11 @ 4:58PM
"you're kinda stuck with what everyone who came before Libya (and O'bumma) thought was permitted"
So again, are we stuck with enumerated powers being ignored because so many who came before thought it was OK to do so?
BD57| 3.25.11 @ 10:01PM
Words aren't the only evidence we have of the Constitution's meaning and parameters - actions speak volumes. History doesn't support an argument that every military action must have congressional approval.
You can argue the power doesn't exist (and fight history) or you can argue he's abusing the power.
IMO, arguing the former gives Obama cover -
"Every president before now was a scofflaw with no respect for the Constitution .... ooookayyyyy. Tell me again why I should take you seriously."
Red Phillips | 3.25.11 @ 10:34PM
"Every president before now was a scofflaw with no respect for the Constitution"
Violations of enumerated powers started very early, does that mean enumerated powers isn't valid even though it was clearly articulated by Federalists and anti-Federalists alike?
"Tell me again why I should take you seriously?"
Because I am making an actual effort to explain myself from the context of the Founders. I'll take you seriously when you actually attempt to answer my question. What exactly did the Founders intend by vesting the power to declare war in Congress under your theory?
BD57| 3.25.11 @ 11:31PM
OK, I'll play ....
IMO, the Founders understood that "war" should not be engaged in lightly. "War" mobilizes the entire nation, identifies an enemy and (generally speaking) commits the nation to that enemy's defeat.
When Congress declares war, it (supposedly) puts "all of us in this together" - - - - in addition to compelling some sort of unity of purpose on the front end it also complicates scapegoating on the back end. All of which, for founders who did not want policy - especially foreign policy - set at the whim of a chief executive, is a good thing.
Now you answer - was Reagan's attack on Libya unconstitutional? How about Grenada? Was H.W.'s action in Panama unconstitutional?
You're making the absolutist argument - "No military operation is permitted absent a declaration of war."
If you want to make "an actual effort to explain myself from the context of the Founders," point me to military operations proposed by a President which were abandoned because "everyone" recognized the President had no authority to act without a declaration of war.
You're doing a good job keeping the discussion off the propriety of Obama's actions, btw.
Red Phillips | 3.27.11 @ 2:48PM
"Now you answer - was Reagan's attack on Libya unconstitutional?"
Not if it was a one time retaliation for the Berlin bombing and others acts of terror that could be directly connected with Qaddafi. If we had of invaded Libya, then yes.
"How about Grenada?"
If it was really urgent to rescue the medical students, then no, but if that was an excuse to meddle (which I suspect) then yes.
"Was H.W.'s action in Panama unconstitutional?"
ABSOLUTELY!!!!
Now my turn, Social Security has been around since FDR and the New Deal. Does that alone justify that it is a constitutional program even though it is not an enumerated power? Are FDR and all the Presidents, Republicans and Democrats, since scofflaws guilty of ignoring the Constitution?
Alan Brooks| 3.25.11 @ 3:32PM
What pettifoggers you are. You all ought to go to law schools- attorneys do better than bank robbers.
Jonah| 3.25.11 @ 7:14PM
Ambulance chasers abound in your party, Alan. They are both lawyers and thieves. The slimy creep, John Edwards, comes to mind.
Red Phillips | 3.25.11 @ 4:54PM
"Yoo argues that, based on past history, Obama's actions are within the generally accepted parameters of those powers"
So would you argue that it is OK to ignore the enumerated powers doctrine, because of the abundant past history of ignoring it?
BD57| 3.25.11 @ 11:40PM
No, Red, I'm arguing against the arrogance that says "I'm right and everyone else is wrong."
Do you think you're somehow special, that NO ONE ever considered your argument before? Do you think every President who ever considered the issue said "I know I don't have authority to do this, but the hell with it - I'll do what I want?"
Plain & simple - the power to declare war doesn't mean what you think it means; specifically, it doesn't prohibit all military action unless authorized by a declaration of war.
Deal with it.
Red Phillips | 3.27.11 @ 8:27AM
Why don't you deal with my arguments instead of just making declarative statements, the same thing you accuse me of doing. Quotes from the Founders, the Federalist Papers, the anti-Federalist Papers, the Constitutional Convention, etc. please. Thanks.
Red Phillips | 3.27.11 @ 10:34PM
“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.” ~ Alexander Hamilton, Federalist #69
So what BD57, did Hamilton have his fingers crossed when he wrote that?
Oldefarte| 3.27.11 @ 10:12AM
You're missing the point. The constitution/government was established with three equal branches, each as a check upon the other two. Yoo's point is essentially correct, although extremely partisaned in nature [as expected]. When Kennedy/Johnson initiated war actions in southeast Asia/Vietnam, congress rightfully confirmed/approved of same in the 1960's [I was in the Senate chamber when same occurred]. It's called ADVISE & CONSENT. Obama has to concisely declare his war actions' intent publically, and congress thereafter has to either approve or disapprove of same!!!!!!!!
Red Phillips | 3.27.11 @ 10:30PM
BD57 and others. Read this and weep.
http://www.tomwoods.com/warpowers/
http://www.tomwoods.com/blog/m.....ar-powers/
Game, set, match.