Why bother declaring war?

Today, Yoo and Ackerman discuss the presidential practice of unilaterally going to war. Previously, they debated the hypocrisy of the left and the right on the issue of war powers, the ongoing use-of-force resolution and the war powers language of the constitution. Later this week, they’ll debate the possibility that there may be more important issues here than constitutional language.

Don’t put up roadblocks to war
By John Yoo

Bruce,

Your argument that the original understanding of the Constitution gives Congress the sole authority on war would require a radical restructuring of the way we defend our country. My view would not require us to change the Constitution, find dozens of American wars unconstitutional, or overturn the consistent practice of presidents and congresses.

Neither presidents nor Congress have ever acted under the belief that military conflict requires a declaration of war. The United States has not declared war since 1941. It has waged numerous conflicts since, including Korea, Vietnam, Nicaragua, Panama, the Balkans, and Iraq.

You create a conflict between the Constitution and the judgment of dozens of presidents and congresses that these American wars were legal. If you are right, we must immediately delete Congress’ power to declare war from the Constitution. Or we must overthrow a durable system that gives presidents the initiative, and allows Congress to control war through funding and its control over the size and shape of the military. Or we must ask the courts to stop wars that have received no declaration or authorization.

The Constitution’s original understanding does not demand that we run any of these risks. While you correctly quoted Federalist 69 on Tuesday, you should note that Hamilton says only that as commander-in-chief the President does not have the power to declare war or to raise troops. When those words were written a declaration was not needed to begin a war—indeed, in the 100 years before the Constitution, the British only once declared war at the start of a conflict. Declarations define the legal status of hostilities under international law. They don’t give Congress the sole key to launch the missiles.

Our Constitution usually makes clear when it requires a specific process before the government can act, especially when the executive and legislative branches share a power. It sets out detailed procedures for the passage of laws, the appointment of Supreme Court Justices, and the making of treaties. There are none for war. Our Constitution even declares that states shall not “engage” in war “without the consent of Congress”—exactly the limits you want on the President. Why didn’t the Framers use this same language for the President if they wanted the same result?

A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security. In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility. It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which may not even lead to smarter decisions, will come at the price of speed and secrecy.

The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents can take the initiative and Congress can use its funding power to check him. Instead of demanding a legalistic process to begin war, the framers left war to politics. As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.

John Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003, where he worked on constitutional issues involving war, and is the author of “War by Other Means” (2006).

We don’t want a warrior-king
By Bruce Ackerman

Dear John:

Nothing you write refutes my basic point. The founding generation would have flatly rejected a Constitution that granted the president the broad range of war-making powers exercised by King George III. Our predecessors made a fundamental commitment to shared decision-making between the president and Congress.

The founding affirmation of checks and balances still makes sense. It’s easy to start wars, but tough to end them. The best time for democratic oversight is before the fighting begins. The American people have the constitutional right to demand that the president gain the consent of Congress to major wars. And if the president’s arguments are based on false premises, Congress has the power to end a conflict it would never have authorized in the first place.

Here, as elsewhere, the Constitution doesn’t try to develop these principles into a complicated code. This is a good thing. It enables later generations to adapt our foundational commitments to changing conditions, and Congress has proved equal to this challenge. Its War Powers Resolution creates a framework authorizing the president to respond to emergencies requiring immediate military action, without obtaining the prior consent of Congress.

But the War Powers Resolution maintains the founders’ commitment to checks and balances by requiring the president to gain Congressional approval within sixty days. If he fails to win majority support, he has a maximum of thirty days to remove the forces.

I consider this resolution an important act of modern statesmanship, but you condemn it as unconstitutional. Richard Nixon also took this view when he vetoed the resolution. But his veto was overridden by two-thirds majorities in both Houses, and the resolution is now the law of the land.

Nevertheless, Nixon’s successors have often ignored its terms. There is nothing particularly surprising about their repeated acts of resistance. Power corrupts, and the lust for absolute power is a constant force in political affairs. The founders opposed it, and so should we.

We should not be using our legal talents to smooth the path to executive absolutism. We should raise our voices to condemn any president of any party whenever he violates the War Powers Resolution. As yesterday’s exchange suggests, I tried to do this when President Clinton was in power, and I will try to do this after President Bush leaves office.

Like almost every other law, the War Powers Resolution has serious deficiencies. But it is the law and it should be respected. The challenge is to update the resolution in ways that allow a sober response to contemporary dangers, including the threat of terrorism.

This is not the moment for Congress to make such a large effort. But once we emerge from the Iraqi quagmire, the time will be ripe to take it seriously and consider how to amend the Resolution to sustain the tradition of checks-and-balances in the years ahead.

When that time comes, perhaps we shall have a president who will refuse to follow Richard Nixon’s desperate attempts to preserve the prerogatives of the imperial presidency. Perhaps we shall have a president who will follow the path of the founders, and lead the nation to a revitalized framework for democratic collaboration worthy of the twenty-first century.

Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of “Before the Next Attack: Protecting Civil Liberties in an Age of Terrorism” (Yale, 2006).