Debate on Presidential War Powers with DePaul College of Law's Alberto Coll and Berkeley Law's John Yoo

In the opening remarks for his March 16 debate with Professor John Yoo, DePaul College of Law Professor Alberto Coll first established the common ground the two scholars hold on certain components of the question of whether or not the U.S. President needs congressional authorization to involve the United States in major wars. Both he and Prof. Yoo, he noted, not only believe in a strong executive but, more importantly to the matter at hand, believe that the Framers’ intention was for the Constitution to invest the office with significant power. He then went on to describe how he likewise agrees with Prof. Yoo that there are certainly instances, most notably times of crisis, when the president can constitutionally initiate the use of military force without congressional authorization. Finally, he pointed out how, while they both seek out the answer to the question being debated in the original language of the nation’s founding document and subsequent interpretations thereof, the conclusions they draw in going back to the text of the Constitution differ drastically.

In providing an overview of his argument for why the president does, in fact, need congressional authorization to involve the nation in major wars, Prof. Coll began by noting how his position is consistent with a form of democratic accountability that is central to both the spirit and structure of the U.S. government as outlined in the Constitution. More specifically, in a society of free men and women, it is imperative, he argued, that momentous decisions like whether or not to enter war not be made by a single person but instead be deliberated over by the representatives of the people. As he then explained, the writings of the architects of the nation’s government and the early interpreters of the Constitution—including Washington, Madison, Hamilton, and many others—very much support this argument. Most outspoken about this issue, Prof. Coll noted, was Jefferson, who wrote in a September 1789 letter to Madison that “we have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.” This conviction that the Constitution confines the power to authorize war to the legislature—the conviction that changing the condition of the country from war to peace should require deliberation—has held over time. For example, in deeming a declaration of war “the highest act of legislation,” Joseph Story argued in his 1833 Commentaries on the Constitution that since “the representatives of the people are to lay the taxes to support a war, [they] therefore have a right to be consulted, as to its propriety and necessity.” Lincoln, Prof. Coll added, pointed to a long and oppressive history of monarchs pretending war was for the good of the people to underscore the danger of consolidating the power to declare war in the hands of a single person.

In providing his counter-argument, Yoo, a Professor at University of California-Berkeley Law, likewise stressed how the true answer to the question of whether or not major wars require congressional authorization lies in the text, structure, and history of the U.S. Constitution. With regard to the text, he argued that it’s telling that the instance in which the Constitution is clearest on this issue comes in Article 1, Section 10, Clause 3, when it is declared that, unless invaded, no individual state shall enter into war without the consent of Congress. The Framers, he explained, could have used language this exact and this forceful elsewhere in the Constitution to address this issue, but they didn’t; in a document so precise in its word choice, they could have used “authorize,” but instead choose the far vaguer verb “declare,” to articulate Congress’ role with regard to involving the nation in major wars. Examining the question in terms of constitutional structure, he argued that the Framers clearly anticipated moments in which immediate action or reaction was necessary and thus very practically invested responsibility for engaging in and/or responding to hostility in a single person. While the power to fund these actions is certainly held by the legislative branch, the power to initiate them, he noted, is not. Deviating somewhat from his otherwise originalist line of inquiry, Prof. Yoo then argued that history requires us to be adaptable in how we read the Constitution on this matter. While, in purely financial and pragmatic terms, an act of Congress once was necessary for raising the military, the presence of a standing army renders this necessity moot, a historical transformation, he added, that we must take into account when interpreting the Constitution with regards to the imperative that Congress declare war. This is especially true, he concluded, in the contemporary moment. Given the capacity for immediate, catastrophic violence that individual actors possess today, error may come in not acting, an outcome that a mandate of congressional deliberation could potentially facilitate.

PDF copies of Prof. Yoo and Coll’s commentaries on presidential war powers from the April 2016 issue of Governance, “U.S. Presidents Don’t Need Congress’s Approval to Go to War” (Yoo) and “The U.S. Congress Must Authorize Major Wars” (Coll), can be accessed using the above links. In addition, Netivist created an online discussion and poll based on the event, which you can follow here. Video of the debate can be found here.