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Preview: RealClearPolitics - Articles - Eugene Kontorovich

RealClearPolitics - Articles - Eugene Kontorovich

Last Build Date: Sat, 13 May 2006 00:38:50 -0600

Copyright: Copyright 2007

The Powers of War and Peace

Sat, 13 May 2006 00:38:50 -0600

Yoo argues that pre-Revolutionary British political thought and constitutional practice developed a formal, distinct concept of "executive" and "legislative" powers. In particular, foreign relations and war were regarded as "executive." These notions were studied and adopted by the Founders, with some modifications to reflect the republican circumstances. Thus, when the Constitution provides that "the executive Power shall be vested in a President," Yoo sees it as referring to a definite set of powers and responsibilities, those that had traditionally been regarded as executive. He applies this model -- along with considerable analysis of constitutional text and actual practice -- to current controversies, with mixed results. The Powers of War and Peace is most convincing when addressing the latter. Yoo makes several important arguments about the role of treaties in the constitutional system, challenging some of the more entrenched positions in foreign relations law. The Constitution provides that treaties shall be "made" by the president and ratified by two-thirds of the Senate. However, a combination of precedent and practice has made it so that deals with foreign nations having the same binding force as treaties can be solemnized without the consent of two-thirds of the Senate. The trick consists in calling these deals "agreements" rather than "treaties." (This is one of the wonderful developments that makes a legal education essential -- and a copy of the Constitution detrimental -- to understanding constitutional law.) Yoo presents a nuanced argument against the interchangeability of treaties with other types of international deals. He also argues that the Constitution does not make treaties self-executing -- that is, that they do not automatically create domestic legal obligations enforceable by courts. This point is of overwhelming importance as it prevents the president from using the treaty power as a back door to domestic legislation, which is properly the province of Congress. Indeed, some scholars argue that because of our participation in certain treaties, the decisions of international bodies such as the Security Council or the International Court of Justice are as binding as federal legislation on Congress and the courts. Non-self-execution allows the U.S. to participate in broad aspirational human rights treaties without having them override such core constitutional values as the separation of powers and federalism. Finally, Yoo argues that the president should play the leading role in interpreting treaty obligations, a sensible position given that the chief executive negotiates treaties and plays the major role in carrying out their obligations and in determining whether other nations have satisfied their side of bargains. None of this may seem particularly controversial (and the book omits the most expansive and tenuous treaty power arguments Yoo made in his Justice memos), but in the legal academy it is not conventional wisdom. Yoo's approach to the more high-profile issue of war powers is less satisfactory, perhaps because the problems are more difficult. The Constitution creates a system of separated powers and relies on each branch of government to serve as a check against the abuses of the others. Often, the lines of separation are clear: Congress puts together laws and passes them; the president can veto them; if he does not, he will decide on how to implement them. Yet when it comes to relations with foreign countries, whether they take the form of treaties or wars, the Constitution's lines of authority cross and intertwine. For example, Congress has the power to "declare War," but the president is the commander in chief of the military. Congress can "raise and support Armies," but the president picks the generals. The common understanding of the division of power between the two branches is that Congress chooses when to fight other countries, while the president controls the conduct of the war. In a more extreme but academically popular version of this position, the president cannot initia[...]