On March 29, 2017, the George Washington University Law School’s branch of the Federalist Society hosted a debate between Professor John Yoo of Berkeley Law and Professor Jonathan Turley of GW Law. The topic of the debate was the delegation of war powers under the United States Constitution. Yoo is best known for the now infamous memo he wrote as a member of the Justice Department in the early 2000s that argued in favor of the authority of the executive to use “advanced interrogation techniques” on enemy combatants. Turley is best known as a civil libertarian who has represented members of Congress in lawsuits attempting to stymie the power of the executive branch. As some Yoo protestors chanted outside, and others dressed as orange jump-suited and hooded detainees protested inside, the two prominent lawyers began their discussion.
While the debate ranged along the lines of history, politics, and the law, there were three primary subject areas along which the participants battled: textual delegation, structural design, and modern functionality. Yoo supports the idea that the President possesses the unilateral power to initiate war, while Turley argues that this power is expressly reserved by Congress.
According to Yoo, the language in Article I, Section 8 of the U.S. Constitution giving Congress the power “[t]o declare War” is not actually an affirmative grant of power. After conducting a survey of the “declarations” of war preceding British engagements in the one hundred years leading up to the American Revolution, Yoo did not find a single example of a congressional declaration of war. Hence, he argues that the Framers could not have meant “declare” in the same sense as “initiate.” Turley took issue with this interpretation, questioning how a declared conservative like Yoo could read so much into a text with an obviously plain meaning. Turley also took the opportunity to extend this criticism to modern day democrats. “It’s strange to hear democratic members of Congress questioning the powers of the executive when they sat for eight years saying nothing while President Obama repeatedly exceeded the constitutional powers of the executive branch.”
Turning to contemporaneous accounts, Turley argued that imbuing Congress rather than the President with the power to make war was the subject of great debate before, during, and after the Constitutional Convention. According to Turley, “Congress is the thumping heart of the Madisonian system.” Turley argued that giving Congress the power to make war was one of the provisions that made the United States government particularly unique in the 18th century, and was by specific constitutional design. Yoo agreed that the Framers had imbued Congress with power over warfare, but that this power comes from Congress’s power of the purse, not as the ability to impede the commander-in-chief. Similar to the restrictions the Framers placed on states in Article I, Section 10, had the Framers intended to deny the president the power to initiate war, they could have specifically done so.
Finally, the debate turned to the so-called “War on Terror” and the Authorization for the Use of Military Force (“AUMF”), written by Yoo and approved by Congress in the wake of the terror attacks on September 11, 2001. Cited by presidents for nearly every post-9/11 military engagement, the AUMF has been largely decried by anti-advocates on both the left and the right as far too broad a grant of authority to the president to wage continuous war. Yoo argued that modern conflicts like the War on Terror require a more flexible executive power to respond quickly to developing threats. To put such actions to a vote of Congress, which seems currently unable to agree on even the most routine issues, is to put the country at risk. Turley, a self-described “Madisonian” who believes in the co-equal nature of the branches of the U.S. government and argues in favor of checks and balances, turned pale at this suggestion by Yoo and closed with a warning:
“If you weren’t afraid of the implications of the AUMF before Professor Yoo’s comments here today, after hearing them you should be absolutely terrified…Principle is unfortunately an inconvenient guest when it leads to inconvenient ends. The American presidency is not the English monarchy.”