The scope of executive power has become a key and controversial matter since September 11, 2001. It is central, for instance, to assessing the legality of warrantless wiretaps by the National Security Agency of communications between America and suspected terrorists abroad, and the propriety of NSA exploitation of phone-company records to identify numbers that have frequently communicated with phones tied to suspected foreign terrorists.
In several recent books, bright scholars have explored the subject and come to a wide variety of conclusions. Each author brings a certain amount of baggage to the topic, as do I after working in this specialized realm for more than three decades — in academe; as national security adviser to a member of the Senate Foreign Relations Committee; and in several executive-branch positions, including acting assistant secretary of state for legislative affairs.
I was delighted to see that the Berkeley law professor John Yoo has taken an almost identical approach to the one I’ve used in my work — and reached many of the same conclusions — in his excellent The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. He examines the writings of the legal scholars and political theorists whom the founding fathers read, and identifies lessons they derived from the American Revolution and the Articles of Confederation. Then he scrutinizes the Constitutional Convention, The Federalist Papers, and the Constitution-ratification debates in the states.
Yoo explains that the framers of our Constitution viewed foreign affairs as a component of the “executive Power” vested in the president by Article II, Section 1. Writers like Locke, Montesquieu, and Blackstone recognized that large deliberative assemblies lacked the institutional competence to manage what Locke described as “war, peace, leagues, and alliances.” The framers reaffirmed those theories from personal experience, as the Continental Congress proved unable to act with unity of plan, secrecy, or speed and dispatch during the American Revolution.
In April 1790, Thomas Jefferson explained that the transaction of business with foreign nations was “executive altogether,” and therefore — because “the executive Power” was expressly vested in the president — it was the prerogative of the president, save for the exceptions vested in the Senate, which were to be “construed strictly.” Those exceptions included such things as the power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” President Washington, Chief Justice John Jay, and Rep. James Madison endorsed this view, agreeing that the Senate had, in Washington’s words, “no right to interfere” in this business save, again, for those narrowly construed exceptions.
Despite his bitter disagreement with Jefferson on many other issues, drawing on this same clause three years later, Alexander Hamilton remarked that “as the participation of the Senate in the making of Treaties, and the power of the Legislature to declare war, are exceptions out of the general ‘Executive Power’ vested in the President, they are to be construed strictly — and ought to be extended no further than is essential to their execution.”
But even the best books on this intricate subject tend to be pocked with errors. In a single paragraph, Yoo asserts that President Truman sent troops into Korea in 1950 without seeking Congressional approval, and that President Johnson never obtained “unambiguous Congressional authorization” for Vietnam. In reality, once-top-secret State Department records reveal that Truman repeatedly sought to address a joint session of Congress and had Secretary of State Dean Acheson draft a resolution of authorization. But in repeated consultation, he was told by Tom Connally, chairman of the Senate Foreign Relations Committee; Scott Lucas, the majority leader; and other Congressional leaders that he had adequate authority under the Constitution and the Charter of the United Nations, and that he should stay away from Congress and make his presentation as a fireside chat rather than as a Congressional address. Truman acquiesced to the will of Congress.
And one of the many myths of the Vietnam War was that Congress never clearly authorized it. On the contrary, initially Congress was far more committed than was Johnson to using force to stop communist aggression in Southeast Asia — a policy first established during the Eisenhower administration when the Southeast Asian Collective Defense Treaty was ratified with the consent of an almost unanimous Senate. In August 1964, a 99.6-percent majority in Congress enacted the Southeast Asia Resolution authorizing the president to use armed force to assist South Vietnam, Laos, and Cambodia in defending their freedom. During the floor debate, Sen. J. William Fulbright, chairman of the Foreign Relations Committee, explained that Congress was authorizing the president to use such force as could lead to “war”; and Congress more than tripled Johnson’s appropriations request on its own initiative. The authorization for war in Vietnam and Cambodia fully satisfied the requirements of Section 2(c)(2) of the War Powers Resolution, and for years Congress fueled the war by appropriating tens of billions of dollars by more than 90-percent majorities in each chamber.
Steeped in post-Vietnam conventional wisdom is Nancy V. Baker, an associate professor of government at New Mexico State University. In General Ashcroft: Attorney at War, she appears unaware of early interpretations of the “executive power” clause, contending in her “Presidential Action and Separation of Powers” chapter that “neither the ‘take care clause’ nor the ‘commander in chief clause’ of the Constitution provides the unequivocal authority for expanded presidential power that Ashcroft asserted.” Many pages later, she writes: “In addition to this misreading of history, Ashcroft’s comparison of Article I, dealing with Congress, and Article II, dealing with the presidency, also is flawed. He characterized Article II as a ‘comprehensive grant of all executive authority to the president, subject only to specified exceptions and qualifications.’”
If that was a misreading on Ashcroft’s part, what, then, do we make of Senator Fulbright’s 1959 declaration in a speech at Cornell Law School? “The pre-eminent responsibility of the president for the formulation and conduct of American foreign policy is clear and unalterable,” Fulbright said. “He has, as Alexander Hamilton defined it, all powers in international affairs ‘which the Constitution does not vest elsewhere in clear terms.’”
Professor Baker’s befuddled theory of “shared powers” over foreign affairs reflects a modern trend pioneered by Professor (now Dean) Harold Hongju Koh, of Yale Law School, in his prize-winning 1990 book, The National Security Constitution: Sharing Power After the Iran-Contra Affair, which Baker cites in her footnotes. The concept’s fallacy may most easily be demonstrated by examining the original. Koh writes that “our National Security Constitution rests upon a simple notion: that generally speaking, the foreign-affairs power of the United States is a power shared among the three branches of the national government.” He explains:
“This structural vision of a foreign-affairs power shared through balanced institutional participation has inspired the National Security Constitution since the beginning of the Republic, receiving its most cogent expression in Justice Robert Jackson’s famous 1952 concurring opinion in Youngstown. Yet throughout our constitutional history, what I call the Youngstown vision has done battle with a radically different constitutional paradigm. This counterimage of unchecked executive discretion has claimed virtually the entire field of foreign affairs as falling under the president’s inherent authority. Although this image has surfaced from time to time since the early Republic, it did not fully and officially crystallize until Justice George Sutherland’s controversial, oft-cited 1936 opinion for the Court in United States v. Curtiss-Wright Export Corp. As construed by proponents of executive power, the Curtiss-Wright vision rejects two of Youngstown’s central tenets, that the National Security Constitution requires congressional concurrence in most decisions on foreign affairs and that the courts must play an important role ... in foreign affairs.”
I find Koh’s vision seriously flawed. He is confusing two very different cases — Curtiss-Wright, which had to do with unauthorized gun sales to Bolivia but really concerned the president’s power to deal with foreign affairs, and Youngstown Sheet & Tube Co. v. Sawyer, a domestic case examining presidential power to seize private property within the United States. Truman had issued an executive order for his secretary of commerce to seize and run most of the nation’s steel mills, which the president feared a United Steelworkers strike would close down, disrupting America’s Korean War effort.
That is not to say that the president, Congress, and the judiciary don’t each have powers related to the business of war and foreign affairs; and many initiatives do require the participation of more than one branch. But the distinctive roles of each branch are not interchangeable, or “shared.” The Senate, for instance, may not negotiate treaties. (The Supreme Court noted in Curtiss-Wright that “into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.”) And Congress may not conduct military operations or run foreign-intelligence operations. Nor can the president raise armies or appropriate money from the treasury.
The Koh paradigm is founded upon the assumption that Congress, not the president, was intended to have the “dominant role” in foreign affairs; although he acknowledges that, from the beginning, Washington and his successors actually filled that role. Indeed, Koh does not seriously explore the understanding shared by Washington, Jefferson, John Marshall, and all three authors of The Federalist Papers that the president’s executive power included general control over foreign affairs. The Supreme Court noted in Curtiss-Wright that “federal power over external affairs” was “in origin and essential character different from that over internal affairs,” and recognized “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress.”
Koh would have us ignore that most-often-cited of all Supreme Court foreign-affairs precedents and embrace instead the concurring opinion of a single justice in a domestic-affairs case.
Even a cursory reading of Youngstown reveals that the court is not even discussing the president’s power to make or carry out foreign policy or to control the operations of war. Rather, Youngstown concerns whether the president, “exclusively responsible” for the “conduct of diplomatic and foreign affairs” (as Justice Jackson, citing Curtiss-Wright, had described it in the majority opinion in Johnson v. Eisentrager just two years earlier) had the power to seize private property within the United States without the “due process of law” required by the Fifth Amendment. The answer was no.
Indeed, Jackson noted in Youngstown that the president’s “conduct of foreign affairs” was “largely uncontrolled, and often even is unknown” by the other branches. He added, “I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.” But Jackson and the Youngstown majority refused to extend the president’s war and foreign-affairs powers to include authority within the United States, as Justice Hugo Black wrote in the majority opinion, “to take possession of private property in order to keep labor disputes from stopping production,” concluding, “This is a job for the Nation’s lawmakers.”
The absurdity of the idea that Justice Jackson intended to overturn or modify Curtiss-Wright in any way is refuted by the second footnote in his opinion, where he cites Curtiss-Wright but reasons: “That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories.” Twenty-seven years later, four members of the court concurring in Goldwater v. Carter — dismissing a Congressional challenge to President Carter’s unilateral termination of America’s mutual-security treaty with Taiwan — rejected Youngstown as a relevant precedent in favor of Curtiss-Wright. They reasoned that the former was a “domestic” case while, “as in Curtiss-Wright,” the effect of the Taiwan-treaty decision, “as far as we can tell, is ‘entirely external to the United States, and [falls] within the category of foreign affairs.’” Curtiss-Wright has been cited scores of times as precedent by the Supreme Court since Youngstown was decided in 1952, including at least once during each of the past three years. Just last year, in Pasquantino v. United States, it was cited for the proposition that the executive branch is “the sole organ of the federal government in the field of international relations.”
Koh attempts to strengthen his theory that Jackson’s Youngstown concurrence somehow replaced Curtiss-Wright as the proper foreign-affairs paradigm by mentioning four early-19th-century Supreme Court cases in which the Marshall Court did recognize Congressional authority over foreign-affairs issues. But each of those involved one of the narrow “exceptions” expressly vested in Congress in Article I, Section 8.
Unfortunately, Baker built her Ashcroft book’s argument on Koh’s very shaky foundation.
I first met Bruce Ackerman, a professor of law and political science at Yale, at a Washington-area conference nearly two decades ago, and his intelligence and talents were evident. Yet, for a variety of reasons, his most recent book, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, was the most disappointing of these recent three.
He frequently denounces Republican presidents for such outrageous “unilateralist pretensions” as George H.W. Bush’s claim of an inherent power to send troops into combat with only the approval of the U.N. Security Council. Never mind that when the U.N. Charter and U.N. Participation Act were approved in 1945, the relevant House and Senate committee reports unanimously declared that the charter authorized the president to send troops into harm’s way without further Congressional approval, and a Senate amendment to require specific statutory authorization for such deployments received only nine votes.
He casts as Orwellian a presidential “power grab,” and a “sucker punch” to Congress George W. Bush’s declaration that “if you want to keep the peace, you’ve got to have the authorization to use force.” One can only wonder what he thinks about presidents like Washington and Jefferson, who were both fond of the Roman maxim, si vis pacem, para bellum (“if you want peace, prepare for war”).
But the problems in Ackerman’s book run much deeper.
Perhaps not surprisingly, like Koh, he finds it appropriate for Congress to alter the Constitution by mere statute rather than the more-cumbersome amendment process set forth in Article V.
That may be a bit unfair to Koh, who recognizes at least that statutes are a “subordinate” component of what he calls the National Security Constitution. Yet Koh argues that “framework” legislation — laws that “Congress enacts and the president signs” — “reinforces and elaborates the Constitutional foundation of power sharing” concerning foreign policy. He offers the War Powers Resolution of 1973 as an example of this kind of law, giving such statutes “greater normative weight than self-serving justifications that one branch may offer, without another branch’s endorsement, to defend its own actions as Constitutional.” Could he be unaware that the War Powers Resolution was passed over Nixon’s veto, that every president since Nixon had refused to accept its constitutionality, and that key Congressional leaders like George Mitchell, the former Senate majority leader, have also conceded its unconstitutionality?
Ackerman’s view of the relationship between statutes and the Constitution is far more alarming. His central theme is that during the early days of a national emergency caused by a major terrorist attack, the government “should be granted extraordinary powers needed to prevent a devastating second strike,” and that Congress should authorize the president to declare an emergency “for a week or two while Congress is considering the matter.” All that is quite reasonable, but Ackerman goes further:
“Emergency powers should then lapse unless a majority of both houses votes to continue them — but even this vote has a temporary limit and is valid for only two months. The president must then return to Congress for reauthorization, and this time, a supermajority of 60 percent is required; after two months more, the majority will be set at 70 percent; and then 80 percent for every subsequent two-month extension.”
Fortunately, I believe, the American people would never be so foolish as to amend their Constitution to empower a 21-percent Congressional minority to leave the nation exposed to future September 11’s, perhaps involving biological or nuclear weapons. When I got to Chapter Four, I discovered that Ackerman had the same thought. He acknowledges that “there is no realistic chance that something as controversial as the emergency Constitution would ever be enacted as a formal [constitutional] amendment.” But that’s no impediment to his plan, as he argues that “Congress already has the Constitutional authority to enact a framework statute that incorporates all the crucial elements of my proposal.”
If one Congress may by mere statute modify the American constitutional system to require an 80-percent supermajority before its successors can enact legislation designed to protect the people against terrorist attacks, presumably it may also raise the margin to 98 percent or reduce it to 5 percent. And, depending upon the political attitudes of legislators — and how susceptible they might be to the demands of a frightened public for protection after another few terrorist attacks — presumably they could enact a “framework statute” that would empower a few key members to suspend habeas corpus and perhaps the more troublesome provisions of the Bill of Rights. To anyone who cares about civil liberties, such thinking is as frightening as it is absurd.
Never mind that Congress passed a joint resolution authorizing the use of armed force against those terrorists involved in the September 11 attacks, and that both NATO and the U.N. Security Council passed resolutions recognizing that “armed attacks” had occurred. Ackerman repeatedly mocks the idea that America is engaged in a war against terrorism. He tells us that World War II and the Spanish-American War were genuine wars, not mentioning that, in a single day, the attacks of September 11 claimed more than seven times as many American soldiers as were killed in combat during the second of those wars.
Like many bright people unfamiliar with the Law of Armed Conflict, Ackerman can’t understand why the Supreme Court, to use his words, “handed the president a very substantial victory” in denying detainees in the current conflict the normal rights to which Americans are accustomed in our criminal-justice system. He apparently doesn’t know that the 1949 Geneva Convention Relative to the Treatment of Prisoners of War permits detaining enemy combatants without trial, a day in court, or access to legal counsel for the duration of an armed conflict. More than 400,000 German and Italian POW’s were held in camps spread across the United States during World War II without access to our courts or lawyers. And, pursuant to Article 84 of the convention, if a POW is to be tried for criminal misconduct, it should be before a military court.
The nation has faced some serious constitutional dilemmas since September 11. To its credit, our government has, as of this writing, kept us from being comparably attacked again. But there have been mistakes — in some cases serious mistakes, like the torture and abuse of some detainees. All the more important, then, that Americans have access to solid scholarship that will help them understand the separation of constitutional powers related to war and foreign affairs. Sadly, of these volumes, only Yoo’s will contribute to that understanding.
Robert F. Turner cofounded the Center for National Security Law at the University of Virginia School of Law in 1981 and is a former three-term chairman of the American Bar Association’s Standing Committee on Law and National Security.
BOOKS DISCUSSED IN THIS ESSAY
Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, by Bruce Ackerman (Yale University Press, 2006)
General Ashcroft: Attorney at War, by Nancy V. Baker (University Press of Kansas, 2006)
The National Security Constitution: Sharing Power After the Iran-Contra Affair, by Harold Hongju Koh (Yale University Press, 1990)
The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, by John Yoo (University of Chicago Press, 2005)
http://chronicle.com Section: The Chronicle Review Volume 53, Issue 4, Page B9