Weapons-Grade Separation of Powers: Was John Yoo Right?

Scientifically speaking it’s surely probable. There must exist some parallel quantum universe where John Yoo is right at least once. Or, alternately, he’s been wrong so much, so surely he’s due!

Actually, both of those arguments are flawed. But in spite of that John Yoo may, in fact, be right on at least one issue of consequence. Here we go: can the President of the United States order a nuclear strike without Congressional approval? John Yoo says yes; ThinkProgress and Crooks & Liars both say no. John Yoo is right.

To make this question meaningful, we should first break it down further. By virtue of Youngstown Tube & Sheet Co. v. Sawyer, 343 U.S. 579 (1952), we should really ask three questions, of which only one is actually complicated:

    1. In the presence of Congressional approval, can the President order a nuclear strike?
    2. In the absence of Congressional action, can the president order a nuclear strike?
    3. In the presence of express Congressional disapproval, can the President order a nuclear strike?

      Only by answering all three can we come to a real answer. On questions #1 & 2, Congressional permission only ever arises in the context of authorizations for military force (AUMFs). These documents are generally construed broadly — a principle for which, ThinkProgress’ analysis notwithstanding, Hamdi itself stands (“Congress has in fact authorized Hamdi’s detention, through the AUMF”). Especially because any authorization for the use of military force is generally itself broad (e.g., “the President is authorized to use all necessary and appropriate force”), such generalist documents would necessarily be construed to include the authority to deploy nuclear weapons. Thus we can immediately answer questions #1 & 2 in the affirmative.

      That brings us to question #3 — in the presence of express Congressional disapproval, can the President order a nuclear strike?

      To answer this, again, we have to give some context to what we mean by Congressional disapproval. As Yoo properly notes, Congress could “starve the beast” — slash all defense appropriations — to halt any presidential action in the military sphere. But our question refers to specific policy constraints, so we must invent such specific constraints, and then analyze them.

      ThinkProgress seems to assume that some express constraint on the President’s nuclear authority already exists, but no such statute has ever been drafted, much less signed in to law. In fact, there are no significant statutory limitations placed on the President’s decisions regarding how to deploy military force. True, in 1973, Congress passed a joint resolution, the War Powers Resolution, which seems to require Congressional authorization for any war or projection of American military power that lasts beyond a set period of days. But the constitutionality of this provision is in no sense clear, and even assuming its perfect validity, it only limits when the President can go to war, not how and using what weapons.

      Nor could it go farther. Congress can declare war (U.S. Const., Art. I, § 8, cl. 11) and “make rules for the government and regulation of the land and naval forces” (U.S. Const., Art. I, § 8, cl. 14) (think UCMJ), but the Constitution commits decisions about the specific waging of specific wars to the President, and no-one else (“The President shall be commander in chief of the Army and Navy of the United States”) (U.S. Const., Art. II, § 2, cl. 1). No decisionmaking authority more closely typifies the commander-in-chief power than the right to determine appropriate military responses to identified crises; accordingly, the question of when to use nuclear weapons is, necessarily, textually committed explicitly and solely to the discretion of the American President.

      This reading is neither liberal nor conservative; it’s just accurate, the way the commander-in-chief was meant to function (read over Federalist #70), and perfectly in line with our history. As the Founders recognized, wars are not to be waged by committee. Every significant post-federal military activity in our history — from the Gettysburg campaign, through the Normandy invasion & Hiroshima, and even to the Cuban Missile Crisis — has been debated, decided, and implemented exclusively at the Cabinet level or above. How could it be otherwise?

      It’s true that this line of argumentation leads to the conclusion that, in and probably out of war too, a single man or woman sitting behind a single desk could initiate Armageddon, with no legal check or balance. This needn’t be too scary, though: given the speed at which wartime decisions must be made, especially when the decisions involve nuclear weapons, any legal limit would be purely illusory anyways. No federal court would convene to litigate a preliminary injunction restraining the President’s use of weapons (who would have standing, anyways?), and no Congress would sit in emergency session to decide how to respond to plausible reports of an impending nuclear first strike against the United States. In some isolated cases, democracy implies a complete and perfect trust in the man or woman we’ve chosen to act in all of our names. The President’s authority to use nuclear weapons is one of those cases.


      1. Geez Ames, circling the lawyer wagons already? Never mind that Mr. Yoo is a discredit to your chosen profession, why in the world did you see the need to try and finds something he did that was technically right on the merits? Does this really matter right at this moment, especially when so many of the “powers” Mr. yoo ascribed to the President are still in use against America’s “enemies?”

      2. Haha! It’s not like that. This just struck me as an interesting issue. And who doesn’t love talking about separation of powers?

      3. If the strike does bring about the apocalypse, the question of legal authority is kind of moot. Legal or not, humanity still gets decimated, and the action would likely be considered the ultimate war crime.

      4. That’s a great analysis, and I’d like to emphasise, as you point out yourself, that this state of affairs is also necessary for reasons of strategy and security. If the executive were limited by parliamentarian oversight on whether or not to use nuclear weapons, maintaining a credible strategic deterrence (which are their primary function) would be impossible. Then the principle of mutually assured destruction breaks down, and the world becomes a much less, rather than more secure place.

      5. Another of those points where I look at the US constitution and go: “WFT?” Like the amendment supposedly giving you the right to bear arms, written at a time when its writers knew front-loader muskets instead of automatic assault rifles able to spray a whole room with bullets as “arms”. Like your silly electoral college system, from a time when you had to bring the ballot results to Washington in a several day horse-carriage trip instead of instantly over the internet. And now a rule invented when the founding fathers thought of a few cannons instead of nuclear bombs as the weapons to be deployed at the whim of a lone person in the oval office.

        Honestly, scrap your vastly over-hyped constitution and write a new one that fits a civilized 21st century. Or maybe only a 20st century one, that would already be a huge amount of progress.

        1. Yes, I’m sure they’ll be happy to oblige you when you ask so nicely. I mean, who doesn’t like to be told that the whole basis of one’s legal system is crap?


        2. A few parts of the constitution have not aged well; overall, however, the document remains both surprising relevant and specific. And ultimately, there is still the process of amending the constitution if we ever muster the political will to update and/or clarify portions like the 2nd Amendment or the Electoral College.

        3. I actually disagree that the Constitution hasn’t aged well. I think the only part that hasn’t is the one so clearly tied to technology of the day — which is, as you accurately state, the Second Amendment. The same principles that suggested JQA should have plenary control over guys with guns to repel an imminent British invasion suggest that Obama should have his finger, and his alone, on the button, although he should (and would) act with advice of his personal advisors.

        4. I’ll note, though, that the only reason it works at all is because we have a “living Constitution” capable of updating by a strong judiciary. Every serious thinker — even Republicans, if they were to talk about it honestly — would agree that this is necessary. Otherwise, for example, the First Amendment doesn’t cover art, etc., etc.

        5. Besides, it’s not like the President can just decide to launch nukes whenever he feels like it. With the two-man rule in place, it requires the approval of the Secretary of Defence, and has to got through the Joint Chiefs of Staff and the military chain of command.

          This is exactly the same procedure as in the UK, France, Russia and as far as I know any other nuclear power. There’s no good reason why the US should have a different procedure, and plenty of very good reasons why it shouldn’t.

        6. Well, of course I formulated that quite provocatively on purpose. But think how this looks from the outside: you see wingnuts argue that things should be done their way because obviously that is how it was meant by the founding fathers, and then you see Ames argue for the exact opposite policy decision with the exact same argument. But nobody ever dares to step back and say what is commonplace in other countries, from Britain to Bolivia: maybe our constitution is not up to its job anymore – maybe it needs to be changed to be up to the times. If this is what the constitution says, it is like gospel to a literalist believer, end of discussion. This seems to be a collective blind spot in the USA, and I can only explain it with a special form of misplaced national pride.

          1. Actually, that doesn’t sound very commonplace at all. Constitutions by their nature change only very rarely (we in Denmark have only done it three times, last in 1953). As a matter of fact, even though the core text is still the same as in 1787, I’d say the US Constitution is probably among the more frequently updated constitutions worldwide.

            1. I’m not sure about other constitutions, but amending the US Constitution isn’t exactly easy. Ordinarily it a 2/3 majority in both houses of Congress, which is hard enough, followed by majority votes in 3/4 of the states, which is damn near impossible. Theoretically 2/3 of the states could call a convention that would propose amendments (which would then need to pass majority votes in 3/4 of the states), but the odds of such a convention getting called… yeah.

              As to “If this is what the constitution says, it is like gospel to a literalist believer, end of discussion”… Several things wrong with that. First, I don’t think criticizing strict adherence to literal text is at all appropriate. Statutory text is the source code of law, and a constitution is the source code of the OS for the polity. Robotic adherence to literal textualism’s the ideal. Second, the U.S. Constitution’s one of the world’s shortest and vaguest and the U.S. is a common-law country, or at least a common-law/civil-law hybrid. It seems to me that civil law countries with lengthier constitutions would be more textual than the United States… unless all the arguing we do over what our constitution says is actually a symptom of it not being explicit enough? I mean, looking at the text of Article I Sec. 8 and the 2nd Amendment, I think I could make a case that a Federal program to hand out the same standard-issue weapon to every person in America would be Constitutional under the interplay of the Spending Clause and Militia clause (and what’s more “well-regulated” than uniformity?). A constitution shouldn’t be so susceptible to gaming the system.

          2. Its not misplaced natural pride – its willful ignorance of history, coupled with a narrow partisan agenda, fueled by equal parts of racism, sexism, and a narcissistic desire to show the world that we’re the best (because if we’re just like everyone else we’ve made some terrible mistakes you see).

            I actually think the Constitution has aged well, and because of the amendment process, we do have the means to keep it a living document that breathes some new air periodically. Our political system isn’t all that advanced, however, and I’d argue that many of the missteps that Mintman outlines are really rooted there, not in the Constitution itself.

            Also, liberal though I may be, I’m also a firearms owner and shooter (clay targets not living creatures) so I’m actually rather enamoured of that particular amendment. I do think, however, the Right needs to look more at the first part (“A well regulated militia being necessary to the defense of a free state. . .”) and less at the second, but I digress.

      6. ACG, doesn’t the Letters of Marque and Reprisal clause grant a degree of warmaking means-and-methods decisionmaking to Congress?

        Also, I’ve read analyses that conclude the “Commander-in-Chief” is properly understood solely as meaning that the President ex officio holds a commission as the highest-ranking officer in a separate post as Commander-in-Chief (Obama wears two separate hats that were packaged together rather than one single hat), not making the President the holder of the civilian authority over the military the way he’s the holder of the executive power. As I recall, this argument seemed to be advanced as a refutation of W’s claims to unitary authority over the military…

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