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Friday, June 17, 2011

Beldar agrees with Yoo on War Powers Resolution

I don't subscribe to the Wall Street Journal and thus can't get past its pay-wall to read Prof. John Yoo's op-ed today about the Libyan conflict and the War Powers Resolution. But I certainly agree with the summary he's posted at The Corner:

The treatment isn’t to force everyone to obey an unconstitutional law, the War Powers Resolution, that is both untrue to the Framers’ original understanding and unsuited to the exigencies of modern war. The New York Times’s [editorialists'] solution is the equivalent of using leeches on a patient with the common cold. The right constitutional answer (as I explain in this morning’s Wall Street Journal) is to toss the empty symbolism of the Resolution and meaningless lawsuits aside and let them fight it out using their own powers — commander-in-chief versus the purse — in the political process.

That's exactly right. The War Powers Resolution is the equivalent of Congress stamping its feet and shouting, "I'm Congress, dammit!" It's drama without substance.

The Constitution expressly gave Congress ample push-back power against the Executive through the power of the purse. If Congress wants to induce different (and better) behavior from the Executive, it can de-fund what he's doing. But if that imposes costs on Congress, in the form of political capital spent and political risks undertaken if Congress has misread the public, then Congress must bear those costs.

The Constitution is much more clever and much more subtle than the War Powers Resolution. And it's the Constitution, and the structure it creates with the intentional and continuous dynamic interplay inherent in that structure, that ultimately matters.

Posted by Beldar at 01:36 PM in Congress, Foreign Policy, Global War on Terror, History, Law (2011), Politics (2011) | Permalink


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(1) Gregory Koster made the following comment | Jun 17, 2011 2:44:17 PM | Permalink

Dear Mr. Dyer: A technical point again: the SUMMARY link you have in your post goes to the teaser of the Yoo article in the WSJ, not to The Corner.

I don't like the War Powers Resolution (WPR) either, but it did address a real issue: the increasing tendency of the Executive to be devious and secretive in its relations with the Legislative and the citizenry. LBJ/Nixon's antics in re the conduct of the conflict in Vietnam are well known. The WPR was a response to that. It hasn't been successful. But the power of the purse hasn't worked well either, as Iran-Contra showed. So what's to be done about Libya? The One will fight any attempt to pin him down. There's also considerable doubt if he would obey any shutting off of the money spigot, as the present debt limit situation shows.

It's hard to take Yoo seriously. I've always doubted the constitutionality of the Iraq conflict, because it never had a formal declaration of war. Yoo of course would give a condescending smirk to such an argument and say that an "authorization to use military force" is just as good as that scrap of paper, run along and let us legal pros take care of business. Now however, Yoo has suddenly discovered the merits in the scrap of paper compared to the WPR. What does Yoo really think of the scrap of paper? Whatever his needs of the moment require. This is the legal mastermind who concocted the idiotic policy on "enhanced interrogation" aka torture and gave huge amounts of ammunition to the Left. The country is still reeling from the damage he did. As Clement Attlee wrote to Harold Laski, "A period of silence from you would be most welcome."

Sincerely yours,
Gregory Koster

(2) RiverRat made the following comment | Jun 17, 2011 2:45:10 PM | Permalink


I've been following your occasional principled blog work for several year starting with the "Swiftboat Wars" starting 2004.

You're absolulely right on the War Powers Act, IMHO. Stop the caca de toro and let the Constitution work it's polical will as designed.

Cedar Park, TX

(3) Magruder made the following comment | Jun 17, 2011 6:50:51 PM | Permalink

Here's a trick to get past the paywall on WSJ.com, and a lot of other sites:

Go to the teaser for the article you want to read. Highlight the headline, and press control-c to copy it to the clipboard.

Then go to news.google.com, paste the headline into the search box, and click Search News. This brings up a search results page that usually includes a link to the full version of the article you're after.

No guarantees, but it usually works.

(4) Pat D made the following comment | Jun 17, 2011 9:08:28 PM | Permalink

Highlight the title and right-mouse click. You should get a pop-up with an option to search Google for the article. Other search engines don't seem to find the full articles but Google often does.

(5) Beldar made the following comment | Jun 17, 2011 9:25:07 PM | Permalink

Link fixed, Mr. Koster, thanks. But you and I will have to agree to disagree about Prof. Yoo and in particular about whether there was anything deficient in the Congressional authorizations of force since WW2.

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