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In Defense of Maximal Presidential War Making
on September 24, 2014
John Yoo's The powers of war and peace: the constitution and foreign affairs after 9/11 (2005) employs three true statements to conclude that presidents have "sole authority to initiate hostilities." First, he uses an "original understanding" doctrine to demonstrate that, in the late eighteenth century, Americans, Britons, and others, all understood the initiation of hostilities as a royal prerogative. He documents this fact with contemporary dictionary citations and numerous citations from legal and scholarly works. Second, Yoo notes that presidents have always made the initial decision. Third, Congress has declared war on only four occasions, and not once since WWII.
From these three certainly true facts, he concludes that, "Declarations of war serve a purpose, albeit one that does not answer to the sole authority to initiate hostilities. Declarations do simply what they say they do: they declare. To use the eighteenth-century understanding, they make public, show openly, and make known the state of international legal relationship between the United States and another country" (151).
Yet, unless one is already predisposed to believe that presidents have "sole authority," it is difficult to agree with Yoo's conclusion. The point he ignores is that, in 1776, the colonists rebelled against all royal prerogatives, thereby radically changing the definition of executive power. Further, in 1787, the Founders drafted a Constitution specifically designed to repudiate kings, their prerogatives, and all the trappings of monarchy, including the royal prerogative to declare war. Consequently, the revolution that is the Declare War was drafted specifically to overturn the "original understanding" of previous centuries. That the Congress has subsequently been incapable of exercising its responsibilities under the Declare War Clause is both true, and not a reason to celebrate. Rather, it is a reason to rededicate oneself to the unfinished anti-royalist revolution of 1787.
Still, if one is already predisposed to believe that presidents have "sole authority to initiate hostilities," then Yoo's account is about as strong a defense of that position as has been made.