The Purse and the Sword

By John Yoo

Published January 27, 2006, issue of January 27, 2006.
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Iraq is beginning to sound like a rerun of the Vietnam War, and not just because presidential critics again are crying out that the United States has fallen into a quagmire. Opponents of the American presence in Iraq are arguing that a wartime president has overstepped the Constitution and that, if Congress’s constitutional role in deciding on war had only been respected, the United States could have avoided trouble, or at least entered the war with broader popular support.

Opponents of the Bush administration make similar arguments against the war on terrorism. The Guantanamo Bay base would never have been created, terrorists would never have been mistreated, and the National Security Agency never would have expanded its surveillance powers, if only President Bush had looked to Congress in setting war policy.

But these critics misread the Constitution’s allocation of war-making powers between the executive and legislative branches. As commander in chief and chief executive, the president has the constitutional authority and the responsibility to protect the nation from foreign attack. Indeed, it was for this very reason that the framers of the Constitution designed the presidency to wield power quickly and decisively.

“Energy in the executive,” Alexander Hamilton argued in the Federalist Papers, “is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.” And, he continued, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

This is nowhere more true than where the critics’ case should be its strongest: who decides when war begins.

During the last two centuries, neither presidents nor Congress has ever acted under the belief that the Constitution requires a declaration of war before the United States can engage in military hostilities abroad. Although this nation has used force abroad more than 100 times, it has declared war only five times: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II.

Without declarations of war or any other congressional authorization, presidents have sent troops to oppose the Russian Revolution, intervene in Mexico, fight Chinese Communists in Korea, remove Manuel Noriega from power in Panama and prevent human rights disasters in the Balkans. Other conflicts, such as both Persian Gulf Wars, received “authorization” from Congress but not declarations of war.

Bush administration opponents want to toss out this long practice by appeals to an “original understanding” of the Constitution. But the text and structure of the Constitution, as well as its application over the last two centuries, confirm that the president can begin military hostilities without the approval of Congress.

The Constitution does not establish a strict war-making process because the framers understood that war would require the speed, decisiveness and secrecy that only the presidency could bring.

Presidential critics appeal to an understanding of declaring war probably taught in most high school civics classes. It is perhaps a commonsense notion to equate the power to “declare” war with the power to “begin” or “commence” war. This view comports with a popular imagery of declarations of war as marking American entry into the most significant conflicts of the 20th century, the two world wars.

The Constitution’s Declare War Clause, however, should not be considered in isolation. In fact, the Constitution does not consistently use the word “declare” to mean “initiate” or “make,” even when referring to war. Moreover, an earlier draft of the Constitution had given Congress the power to “make” war, but the delegates subsequently changed the power to the lesser power to “declare” it.

The Constitution usually makes very clear when it requires a specific process before the government can act, particularly when the executive and legislative branches share a power. For example, the Constitution sets out detailed procedures that the president and Congress must follow to enact laws or enter into treaties.

In contrast, the Constitution does not define a process for war making. This suggests that the framers gave the executive and legislative branches substantial flexibility to shape the decision-making process.

Historically, the framers understood the distribution of war powers between the executive and legislative branches in the context of the British system. As commander in chief, the British king had complete control over war. A declaration of war was not needed either to begin or to wage a war. Rather, declarations of war served to formally invoke the protections of international law, so that, for example, citizens of the contending nations could lawfully keep captured vessels without fear of being accused of piracy.

It was Parliament’s control over funding that provided the check on executive war making. Indeed, in the century before the Constitution, Britain engaged in eight significant military conflicts, but only once “declared” war at the start. But Parliament retained the power of the purse, and without parliamentary consent, soldiers would not be paid, armies would not be properly equipped, and the king’s war power would be rendered largely illusory. This was not an accident — rather, the distinction between the war power and the powers to fund and legislate was a core element of the separation of powers and the rise of parliamentary democracy.

But suppose the Constitution did not provide a clear answer to the question of which branch of government controls the decision for war. If the Congress and president had to agree on initiating hostilities, it is by no means clear that the fortunes of war would improve for the United States.

First, congressional deliberation does not necessarily ensure consensus. Take the Vietnam War. Though initially approved by Congress, the war did not meet with a consensus over the long term but instead provoked some of the most divisive politics in American history. Much the same goes for the 2002 congressional authorization to use force in Iraq.

It is also not clear that the absence of congressional approval has led the nation into wars that it should not have waged. During the Cold War, for example, the United States fought against Soviet proxies around the globe. Yet the only war arguably authorized by Congress — and this point is debatable — was the Vietnam War. Aside from Vietnam, the strategy of containing the Soviet Union succeeded thanks to the steady leadership of several presidents of both parties and the consistent financial support of Congress.

On the other hand, congressional action can produce poor decisions. Congress led us into two “bad” wars, the 1798 quasi-war with France and the War of 1812. And most would agree now that congressional isolationism before World War II harmed American interests. The United States and the world would have been far better off if President Roosevelt had been able to bring the United States into the conflict much earlier.

Critics of presidential war powers exaggerate the benefits of declarations or authorizations of war, and they also fail to examine the potential costs of congressional participation: delay, inflexibility and lack of secrecy. Legislative deliberation may breed consensus in the best of cases, but it also may inhibit speed and decisiveness.

In the post-Cold War era, the United States confronts several new threats to its national security, including the proliferation of weapons of mass destruction, the emergence of rogue nations and the rise of international terrorism. Each of these threats may require pre-emptive action best undertaken by the president and approved by Congress only afterward.

Take the threat posed by Al Qaeda. Despite the fact that terrorists generally have no territory or regular armed forces from which to detect signs of an impending attack, weapons of mass destruction could allow them an ability to inflict devastation that once only laid in the hands of a nation-state. In order to forestall another September 11 attack, or to take advantage of a window of opportunity to strike a terrorist cell, the executive branch needs flexibility to act quickly, possibly in situations in which congressional consent cannot be obtained in time to act on the intelligence. By pre-empting a terrorist attack, the president might also be able to engage in a more limited, more precisely targeted use of force.

Similarly, the least dangerous way to prevent rogue nations from acquiring weapons of mass destruction may depend on secret intelligence gathering and covert action, rather than open military intervention. Delay for a congressional debate could render useless any time-critical intelligence or windows of opportunity. If Congress wants to prevent military adventurism, it can simply do nothing — presidents can wage no war without the troops and weapons funded by Congress.

The Constitution creates a presidency that can respond forcefully and independently to pre-empt serious threats to our national security. Instead of demanding a legalistic process to begin war, the framers left war to politics — and so should today’s critics of the war in Iraq.

John Yoo, a law professor at the University of California at Berkeley, served as deputy assistant attorney general from 2001 to 2003. A visiting scholar at the American Enterprise Institute, he is author of “The Powers of War and Peace” (University of Chicago Press, 2005).

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