Who Declares War?

By WALTER ISAACSON

Published: January 21, 2010

In “Crisis and Command,” his sweeping history of presidential prerogatives, John Yoo argues that national security crises inevitably ratchet up the power of the president at the expense of Congress. “War acts on executive power as an accelerant,” he writes, “causing it to burn hotter, brighter and swifter.” In “Bomb Power,” Garry Wills argues much the same thing, adding that the advent of atomic weapons has made this concentration of power in the White House even greater. “The executive power increased decade by decade,” he writes, “reaching a new high in the 21st century — a continuous story of uni­directional increase.” Where the two authors disagree is on whether this trend should be celebrated or denounced. Yoo finds increased executive power appealing and in accord with the Constitution. Wills finds it appalling and a constitutional travesty.
They come to their conflicting positions naturally. During George W. Bush’s first term, Yoo served in the Office of Legal Counsel at the Justice Department, where he wrote memos that asserted the president had the power to authorize the use of interrogation techniques like waterboarding, instigate a program of warrantless wiretapping and detain certain enemy combatants without applying the Geneva Conventions. The author of two previous books, “The Powers of War and Peace: Foreign Affairs and the Constitution After 9/11” and “War by Other Means: An Insider’s Account of the War on Terror,” he is now a professor at Berkeley’s law school.
Wills, the author of some 40 books on topics ranging from American history to Christian theology, started his career as a conservative Catholic protégé of William F. Buckley Jr. but during the 1960s began shifting leftward as an opponent of the Vietnam War. He has long argued that Congress was meant to be the dominant branch of government, as James Madison argued in Federalist 51, and that presidents have used the pretext of national security to usurp power.
What Yoo and Wills have thus wrought in these dueling chronicles could be called “advocacy history,” in which scholarly analysis and narrative are marshaled into the service of a political argument. “Some may read this book as a brief for the Bush administration’s exercise of executive authority in the war on terrorism,” Yoo writes. “It is not.” But it most certainly is precisely that, and a very rollicking and thoroughly researched brief as well. As he says in summation, the Bush administration “made broad claims about its powers under the president’s constitutional authorities, but this book shows that it could look to past presidents for support.”
Wills, as befitting his well-earned gravitas, is somewhat more literary but no less argumentative, especially at the end of his book, when he recounts the arguments made by Yoo and his Bush administration colleagues, like one memo calling the Geneva Conventions “quaint” and “obsolete.” “Perhaps in the nuclear era, the Constitution has become quaint and obsolete,” Wills grumbles.
Yoo begins with the birth of the Republic. After the Americans threw off a monarch, they suffered for a few years under a system of mostly weak state governors and a feckless central government. That was rectified at the 1787 Constitutional Convention. James Madison proposed a presidency that was a handmaiden of the legislative branch; Alexander Hamilton favored instead a powerful executive elected for life. Yoo contends that the final compromise produced a stronger presidency than many scholars have thought.
The right to negotiate treaties and to send and receive ambassadors, for example, was intended to give the president paramount control over foreign policy. As for the power of the Senate to provide “advice and consent” on treaties and ambassadors, Yoo describes how that was minimized by George Washington during his presidency. After one ill-fated attempt, he quit seeking advice from the Senate. He waged a military campaign against the Indians without asking Congress to declare war. And he organized the executive branch under his control as if it were a military command, creating a model that contemporary advocates of presidential authority would call the “unitary executive.” As Yoo notes approvingly, “Washington set the example of a republican executive that his successors would follow.”
Washington’s willingness to assume power thrilled Hamilton, who wrote an essay defending this expansive view. Madison, on the other hand, was outraged. He wrote to Thomas Jefferson lamenting that Washington had engaged in an “assumption of prerogatives not clearly found in the Constitution and having the appearance of being copied from a monarchial model.” He published his own essay saying that this illustrated why Congress, and not the president, should have the right to initiate war. “Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued or concluded,” he argued. “War is in fact the true nurse of executive aggrandizement.”
Yoo declares that Madison was unpersuasive and that Hamilton was proven right by history. Certainly, for better or worse, history marched ahead as Hamilton hoped. Even Jefferson, by such acts as purchasing Louisiana without having a clear constitutional authority to do so, “demonstrated the possibilities of vigorous and independent presidential leadership.” Andrew Jackson, as Yoo notes, subsequently laid the foundations for the modern presidency by casting himself as the tribune of the people and grabbing back powers that had drifted after Jefferson’s time into the hands of Congress. The trend of increasing executive branch power continued under each great president, Yoo contends, most notably Abraham Lincoln and Franklin Roosevelt.
Wills devotes most of his book, as the title implies, to the increase in presidential power after the advent of the atom bomb. He agrees with Yoo that the trend was apparent throughout American history, especially in times of war, but “the bomb altered our subsequent history down to its deepest constitutional roots” by redefining government as a “national security state, with an apparatus of secrecy and executive control.” What Wills calls a “quiet revolution” occurred when presidents starting with Truman were given control over the nuclear button. “Lodging ‘the fate of the world’ in one man, with no constitutional check on his actions, caused a violent break in our whole governmental system.”
Wills is most persuasive when he shows how the atomic age brought with it a culture of government secrecy that favored executive power, allowing presidents to conceal from the public and Congress actions taken in the name of national security. The most egregious example was Richard Nixon’s so-called “secret bombing” of Cambodia, which was hardly a secret to the Cambodians. Concealment “is meant not to fool the enemy, which knows what is going on,” Wills notes. “It is for fooling Congress and the American people.”
Yoo concedes many of the points Wills finds so alarming. “As the United States entered a semipermanent state of national emergency, marked by multiple wars and boosts in defense spending, power naturally flowed to the presidency,” Yoo writes. “The cold war brought forth one of the framers’ great fears, a large, standing army in peacetime.”
The first major cold war example of this enhanced presidential power, as Wills points out, came when Truman decided to commit American troops to Korea. Secretary of State Dean Acheson advised him to do so without asking Congress to declare war. Truman agreed. To concede that Congress had the power to decide on the deployment of troops would undermine the authority of future presidents to act decisively. To support this position, Acheson had the State Department list 83 cases in which a president dispatched troops without asking Congress to declare war.
Doesn’t the Constitution say that Congress is the branch that has the authority “to declare war”? Yes, and therein lies the crux of the dispute between Yoo and Wills. Yoo construes that phrase extremely narrowly. An earlier draft of the Constitution gave Congress the power to “make” war, but that was amended to “declare.” It is unclear from the debates or notes precisely what distinction the framers intended, but Yoo argues that this was a significant diminution of Congress’s powers. He says that “declarations” — including the most famous of them all, the Declaration of Independence — are meant only to define the hostilities. If the framers had wanted to give Congress the sole authority to commence and conduct war, they would have used a broader word, Yoo contends.
Wills refers to Yoo’s argument (which he also made in an earlier book) as “a flimsy philological fantasy,” and he cites historical usages of “declare war” to show that Yoo is obfuscating its meaning. “It takes a fierce determination to ignore the obvious source and sense of the phrase ‘declare war’ to play these word games with it,” Wills writes of what he calls Yoo’s “absurdities.” He directly counters Yoo’s interpretation of the word “declare”: “The drafters brought in ‘declare’ as the stronger sense and assigned it to Congress.”
On this core point of disagreement, Wills seems more persuasive. The founders clearly meant, I think, to vest Congress with the power to commence wars. As Washington wrote after he became president, “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated on the subject, and authorized such a measure.”
Nevertheless, as Wills would admit with regret, the course of American history has followed Yoo’s interpretation. Congress has formally declared war only five times in American history, the most recent being for World War II. Many other engagements, including the current ones in Iraq and Afghanistan, have relied on more informal resolutions, and the War Powers Resolution passed in the wake of the Vietnam War created an uneasy shared arrangement with Congress that most subsequent presidents have not fully complied with.
Whatever you think of this accumulation of power in the hands of the presidency, Congress has pretty much acquiesced in the trend. For better or worse, it seems to believe that the complex national security issues of our day require less fettered executive power. That is why Wills’s book, though more elegantly argued than Yoo’s, seems to be railing against the tides of ­history.