WASHINGTON — There’s a lot of talk today about the feebleness of Congress, whether on its inability to pass real spending budgets or confront knotty but inevitably crucial issues like immigration. But there’s nothing that gets constitutionalists more agitated than lawmakers’ seeming abdication of their war powers.
“They are the invertebrate branch,” charged Bruce Fein, a constitutional scholar who moonlights as James Madison in rotating theater performances inside and outside the Beltway. “Pure cowardice,” he adds, once or twice for good measure.
That was the upshot of a debate Thursday night between Fein and his peer John Yoo, now a professor at the University of California at Berkeley. Yoo has been vocal about what he says is executive power “run amok” under President Donald Trump. That might seem the height of irony, given that Yoo’s infamous 2002 memo as deputy attorney general gave the military and the CIA license to torture countless detainees in places like Guantanamo Bay and Abu Ghraib for at least seven years until President Barack Obama ended the practice by executive order in 2009 (though even then it’s suspected that renditions to secret black sites continued well into the Obama administration).
But the question put to the two men at the event hosted by the Committee for the Republic at the Atlantic Council in D.C. wasn’t on the pusillanimity of the Congress—on that point they seemed to agree, to varying degrees. No, it was whether Congress, and only Congress, had the authority to bring the country to war, and whether presidential wars of choice, beginning with Korea, then into Vietnam, and then the various overseas conflicts today, are unconstitutional.
“The ‘declare war’ clause is unambiguous; there was no dissent,” asserted Fein. “Only the Congress can take the country from a state of peace to war. I think there cannot be any dispute.”
He said the founders did not trust the executive not to pursue “gratuitous wars” as a means of aggrandizing his power. Article 1, Section 8, Clause 11 is unequivocal, he said: “This process distinguishes us from a despotic and tyrannical government.”
The War Powers Resolution of 1972, which says the president has 60 days after initiating hostilities to get approval from Congress, was supposed to reinforce this clear power, according to Fein, though several presidents since have refused to acknowledge its legal effect.
There have only been five congressional declarations of war in the history of the United States, with the War of 1812 being the only one that was initiated by Congress. The other four—the Mexican War, the Spanish-American War, World War I, and World War II—were declared after it was requested by the president in response to an attack. Every war since World War II has been conducted without a formal declaration, though with alternate congressional consent—like the Gulf of Tonkin Resolution in Vietnam, or the Authorization for Use of Military Force in Iraq.
Critics of Fein’s strict constitutional view, like Yoo, believe that Article II, Section 2 invests the president with the power to wage war as commander-in-chief of the military. Yoo believes that the framers, far from equivocal during ratification, deliberately created the tension between the executive and legislative branches on the issue of war and did not restrict the president’s ability to initiate hostilities without a formal declaration. That declaration merely provides the legal framework for the war, Yoo said, dictating and establishing terms with the enemy, among other conditions. And Congress has the authority to test the president by withholding the funding for it.
“The main check is the executive and legislative branch conflict,” Yoo said, and “the power of the purse.” “I don’t know if the president has the power or resources to run a long-term war without Congress,” he added.
Fein was in complete disagreement that the framers had this baked-in “conflict” in mind, and blamed Congress for “cowardice” in hiding behind the president on issues of war.
“I’m not accusing the executive branch of usurpation; the legislative branch just throws [their power] away,” he said.
This debate has particular salience as Congress has been taking steps to check the president’s authority to continue funding military support of Saudi Arabia’s war in Yemen.
Even Yoo admits that Congress has been funding an “offensive” not “defensive” military that allows the executive to wage hostilities all over the globe without formal declaration or even its own direct authorization. “Congress gives money, builds assets, with no restrictions,” he told TAC after the debate. “If you do it this way you are not politically responsible.”
Maybe in some way, Yoo understands that “flexibility” can have unplanned, even dangerous consequences—like his torture memo. In an interview in 2014 about the revelation of the extent of CIA torture techniques, Yoo said they “were troubling,” and if the allegations were true, “[the techniques] would not have been approved by the Justice Department.”
Kelley Beaucar Vlahos is the executive editor of The American Conservative. Follow her on Twitter @Vlahos_at_TAC.