Executive power and the discipline of history

University of Chicago Law Review

Volumn 78, Issue 1, 2011, Pages 377-447

  Mortenson, Julian Davis ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84855902212     PISSN: 00419494     EISSN: None     Source Type: Journal    
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References (358)

1. On the particular challenges of originalism in this context, see Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 L & Contemp Probs 169, 171 (2004) ("Precisely because the Founding generation had resolved so little, rather than so much, in their new Constitution, it quickly became apparent that many key constitutional issues in foreign affairs would have to be worked out over time by the three branches in light of the likely consequences.").
2. That instinct finds its principal contemporary expression in Youngstown Sheet & Tube Co v Sawyer, 343 US 579 (1952), a case that is most famous for Justice Robert Jackson's tripartite framework for separation of powers analysis. Id at 635-40 (Jackson concurring). Justice Felix Frankfurters separate concurrence, and to some extent Jackson's own opinion, also emphasized our special concern for the lived experience of the American republic as a guide to resolving such high-stakes questions-for custom and tradition as in some sense the ongoing reenactment of practical meaning for the Constitutions sparse text. Id at 610-11 (Frankfurter concurring); id at 637, 646-49 (Jackson concurring) (noting the appeal of history in separation of powers analysis while expressing skepticism about its determinacy); id at 683-700 (Vinson dissenting) (surveying executive practice since the Founding). Custom and tradition of course play an important role in resolving other kinds of constitutional questions as well.
3. John Yoo, Crisis and Command: The History of Executive Power from George Washington to George W. Bush (Kaplan 2010);
4. John Yoo, War by Other Means: An Insider's Account of the War on Terror (Atlantic Monthly, 2006);
5. John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago 2005). Parenthetical page references in the main text will refer to The Powers of War and Peace as Volume I, War by Other Means as Volume II, and Crisis and Command as Volume III. Page 411 of Crisis and Command, for example, will be cited in text as "(III, p 411)."
6. See, for example, Aaron Nielson, Book Review, An Indirect Argument for Limiting Presidential Power, 30 Harv J L & PubPol 727 (2007);
7. David J. Bederman, Book Review, 100 Am J Intl L 490 (2006);
8. Kenneth W. Thompson, Book Review, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/II, 121 Polit Sci Q 713 (2006);
9. Recent Publications, 119 Harv L Rev 1238 (2006);
10. Michael D. Ramsey, Book Review, Toward a Rule of Law in Foreign Affairs, 106 Colum L Rev 1450 (2006);
11. Kenneth Harbaugh, Recent Publications, 31 Yale J Intl L 547 (2006);
12. Gordon Silverstein, Book Review, Constitutional Contortion? Making Unfettered War Powers Compatible with Limited Government, 22 Const Comment 349 (2005).
13. See, for example, David Luban, The Defense of Torture, NY Rev Books 37 (March 15, 2007);
14. Andrew Rudalevige, Civil Rights, Uncivil Wrongs: The War on Terrorism's Toll on the U.S. Constitution, 86 Foreign Aff 148 (Jan/Feb 2007);
15. Desmond King, What Geneva Convention?, Times Higher Ed Supp 28 (Sept 22, 2006);
16. Lawrence R. Douglas, Counsels of War, Times Lit Supp 3 (May 12, 2006);
17. Stephen Holmes, John Yoo's Tortured Logic, Nation 31 (May 1, 2006);
18. Andrew C. McCarthy, Presidential Primacy, Commentary 80 (Mar 2006);
19. Gordon Silverstein, All Power to the President, Am Prospect 49 (Mar 2006);
20. Cass R. Sunstein, The 9/II Constitution, New Republic 21 (Jan 16, 2006);
21. David B. Rivkin, Jr and Carlos Ramos-Mrosovsky, Rights and Conflicts, 57 Natl Rev 48 (Nov 21, 2005);
22. David Cole, What Bush Wants to Hear, NY Rev Books 8 (Nov 17, 2005).
23. See, for example, Walter Isaacson, Power and the U.S. Presidency, Intl Herald Trib 9 (Jan 26, 2010);
24. Fareed Zakaria, The Enemy Within, NY Times F8 (Dec 17, 2006);
25. Geoffrey R. Stone, Taking Liberties: A Former Top Justice Department Lawyer Defends the Post-9/II Decisions He Helped Make, Wash Post T6 (Nov 5, 2006);
26. Michiko Kakutani, What Torture Is and Isn't: A Hard-Liner's Argument, NY Times E1 (Oct 31, 2006).
27. Deborah Solomon, Questions for John Yoo: Power of Attorney, NY Times MM15 (Jan 3, 2010).
28. Gordon S. Wood, An American Monarch, Natl Interest 89, 96 (Jan/Feb 2010) (concluding that Yoo's examples show that Presidents "can get away with almost anything" in a serious crisis).
29. See also Arthur Herman, The Power to Protect, Wall St J A17 (Jan 11, 2010) ("[I]t is hard not to read his analysis without feeling that much of the anti-Bush rhetoric of recent years-not to mention its anti-Yoo variety-has been grounded in ignorance as much as outrage.");
30. Jack Goldsmith, The Accountable Presidency, New Republic 36 (Feb 1, 2010) ("Yoo is right that most of Bush's controversial counterterrorism programs can find a precedent, and often many, in the actions of past great presidents.").
31. Jack Rakove, John Yoo on Why the President Is King, Wash Post Bo1 (Jan 10, 2010).
32. Wood, An American Monarch, Natl Interest at 89 (cited in note 10). It should be acknowledged that two of our most eminent historians, Jack Rakove and Gordon Wood, have written reviews of Yoos third book that some readers may take as lending plausibility to Yoo's legal history. One person who read a draft of this Essay asked me, in effect, "How can you be disagreeing with Wood and Rakove?" But Rakove is extremely critical of Yoo's work as history.
33. See Rakove, Why the President Is King, Wash Post at Bo1 (cited in note 11) (calling the work "selective history" and observing, for example, its "errors of fact"). What Rakove finds to approve in Yoo's work is a recognition of the general importance of presidential initiative in our history and politics - a description with which it is hard to disagree. See id (cited in note 11). Rakove nowhere endorses Yoo's conclusions about Bush's constitutional claims as a matter of legal history, and many of his specific critiques undermine Yoo's argument on this central point. See, for example, id (observing the tension between the "underlying republican values" that pervade our history and "the virtues of the presidency that [Yoo] champions"). Gordon Wood, on the other hand, does seem to endorse Yoo's constitutional argument in defense of the Bush administration. At the end of a review that mostly summarizes Yoo's historical narrative, Wood concludes that Yoo "convincingly shows that all of Bush's controversial actions following the 9/11 terrorist attack⋯ can be constitutionally justified by the actions of previous presidents."
34. Wood, An American Monarch, Natl Interest at 96 (cited in note 10). It is possible that by saying "can be constitutionally justified" (instead of simply "were constitutionally justified"), Wood means only to suggest a kind of prima facie argumentative plausibility. But with respect to a great historian, even that conclusion would be insufficiently attentive both to the precise legal claims being made and to the way a constitutional argument of the kind Yoo is advancing works. I will let the remainder of this Essay serve as explanation.
35. See, for example, Marc A. Thiessen, Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack (Regnery 2010);
36. Karl Rove, Courage and Consequence: My Life as a Conservative in the Fight 285-304, 332-43 (Threshold 2009);
37. Douglas J. Feith, War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism (Harper 2008). There have also been serious scholarly efforts to defend particular Bush-era (and in some cases Obama-era) policies, with Kenneth Andersons defense of targeted assassinations being an especially recent example.
38. *2 (Brookings Institution Working Paper Series on Counterterrorism and American Statutory Law, May 2009), online at http://www.brookings.edu/papers/2009/0511-counterterrorism-anderson.aspx (visited Nov 21, 2010).
39. As Justice Frankfurter put it, evidence of "systematic, unbroken, executive practice[s]" can be "treated as a gloss on the 'executive Power' vested in the President by § 1 of Article II," at least if it is "long pursued to the knowledge of the Congress and never before questioned." Youngstoum, 343 US at 610-13 (Frankfurter concurring).
40. Yoo thus engages in a well-recognized form of argument in his work: Frankfurter extended the invitation, Dames & Moore v Regan, 453 US 654, 686 (1981), repeated it, and now Yoo has written the multivolume amicus brief that follows up on it.
41. See, for example, text accompanying notes 153-55 and note 172 and accompanying text. See also William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell L Rev 695, 725 (1997).
42. See, for example, David J. Barron and Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 Harv L Rev 689, 767-804 (2008);
43. David J. Barron and Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 Harv L Rev 941, 951-1098 (2008).
44. The wholesale exclusion of Theodore Roosevelt is particularly difficult to understand. Yoo devotes a total of five chapters in Crisis and Command to individual presidents. Those presidents rank first (George Washington), second (Abraham Lincoln), third (Franklin D. Roosevelt), fourth (Thomas Jefferson), and ninth (Andrew Jackson) on the "greatness" list that Yoo uses to structure the book (III, p xvi). Not only does the fifth-ranked Theodore Roosevelt fail to rate a chapter, but there are only four sentences in the entire 446-page book that even mention his name (III, pp ix-x, 401, 438). This omission is even more mysterious given Roosevelt's renowned " stewardship" theory of the presidency, which was oriented toward precisely Yoo's core themes of bold action and greatness in the executive branch (III, p ix). It is perhaps relevant to this puzzle that the elder Roosevelt theorized a stewardship power that was inherent but not indefeasible. In other words, he expressly recognized Congress's right to overrule him. Theodore Roosevelt, Theodore Roosevelt: An Autobiography 357 (Scribner's Sons 1920) ("I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition").
45. See also Arthur M. Schlesinger, Jr, The Imperial Presidency 83 (Houghton Mifflin 1973);
46. Forrest McDonald, The American Presidency: An Intellectual History 294-98 (Kansas 1994);
47. Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 245 (Yale 2008). Roosevelt did not squarely address and reject the concept of an illimitable crisis power, but his repeated emphasis on congressional supervision over a presidential steward is in substantial tension with it. More important, his actual practice in office showed deference to standing law even in the military context. Barron and Lederman, 121 Harv L Rev at 1035-37 (cited in note 19).
48. To be fair, with constitutional history it is not just inevitable but in some sense the whole point to seek lessons from the past. But Yoo's presentism drowns his history. He reframes what sometimes seems like every single historical episode in present-day terms, in a way that is as narratively distracting as it is analytically distorting. To take but one example, The Prize Cases, 67 US (2 Black) 635 (1862), were certainly not about whether the Confederacy had to be left as "a matter for the criminal justice system" (III, p 212). No one suggested that the Army of Northern Virginia had to be confronted by constables waving arrest warrants. Rather, the Supreme Court was deciding whether tobacco, cotton, coffee, and other seaborne cargo were subject to seizure under blockade law during a civil war. The Courts decision to uphold the forfeitures is simply indeterminate on the contemporary detention and targeting questions to which Yoo alludes with this trope. Consider II, p 130 (arguing that conflict with al Qaeda is "not solely a criminal justice matter"). At most, The Prize Cases might serve as a single link in an extended chain of argument by analogy, but Yoo's characterization of what the case was about is quite misleading.
49. His discussion collapses the distinction between the independent existence of a presidential power and its immunity from control or defeasance by Congress. See Sai-krishna Bangalore Prakash, A Taxonomy of Presidential Powers, 88 BU L Rev 327, 334-37 (2008).
50. See also Jules Lobel, Conflicts between the Commander in Chief and Congress: Concurrent Power over the Conduct of War, 69 Ohio St L J 391, 446-47 (2008).
51. By the later volumes, Yoo has dropped earlier suggestions that the Constitution might "provide the executive branch with expanded domestic powers⋯ only when war is declared" (I, p 151) (emphasis added). In the end, the closest he comes to adumbrating a legal limit is with the suggestion that the Presidents "sweeping powers on the battlefield" may not "reach all the way back to the home front" (III, p 342). See also DOJ, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 33 (Jan 19, 2006) ("Memorandum in Support of NSA Activities"), online at http://www.justice.gov/opa/ whitepaperonnsalegalauthorities.pdf (visited Nov 21, 2010) (critiquing this form of "foreign-to-domestic presidential bootstrapping"). This point arises as part of what appears to be Yoo's concession that Youngstown was rightly decided because Truman's steel seizure encroached on domestic rights (III, p 420; II, pp 184-87; I, p 23). The problem is that, on Yoo's account, the battlefield is now everywhere (II, p 8, 50; III, p 421-22).
52. See also Memorandum from Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty to William J. Haynes II, Department of Defense General Counsel, Authority for the Use of Military Force to Combat Terrorist Activities within the United States 3-4, 29 n 34 (Oct 23, 2001) ("OLC Domestic Terrorism Memorandum"), online at http://www.usdoj.gov/ opa/documents/memomilitaryforcecombatus10232001.pdf (visited Nov 21, 2010). So what actually follows from Yoo's reference to a battlefield distinction? If the executive branch cannot be legally restrained from detaining American al Qaeda members on US soil or running a domestic wiretapping program, it is hard to see how the principle provides any serious limit at all. Yoo does not even appear to view the exclusion and mass detention of Japanese Americans (which were quickly approved by Congress) as constitutionally illegitimate (III, pp 315-21).
53. At most, Kore-matsu v United States, 323 US 214 (1944), is "one of the most criticized decisions in American history" (III, p 319), the internment itself was "terrible" (I, p 151), and the "debate over the necessity of [these measures] continues" (III, p 321).
54. This selfless patriotism test is completely at odds with a principal theory of our constitutional structure. James Madison emphasized that precisely the recognition of human ambition was the genius behind the separation of powers as a guarantor of liberty. With inhumanly virtuous leaders in short supply, our Constitution capitalizes instead on the thoroughly unvirtuous fact of private ambition to animate a sort of invisible hand of liberty. See Gordon S. Wood, The Creation of the American Republic, 1776-1787 547-53, 602-06 (North Carolina 1969) (detailing the debate between Whig and Federalist political theorists). Theory aside, students of modern history may not find a leaders sincere belief in her own virtue particularly reassuring. Yoo's contrary assumptions at times make his work read like a secular Lives of the Saints. Washington understands "instinctively" what history is calling him to do (III, p 96); Jefferson acts "unerringly" (III, p 126); FDR "call[s] forth his constitutional powers" (III, p 297) like a court magician; Reagan sallies forth on behalf of the "Free World" (III, p 333) and carries the courts with him by sheer tenacity until they finally "jump[] off the Reagan revolution train" in Morrison v Olson, 487 US 654 (1988) (III, p 379). More than anything, Yoo grounds Presidents' will to power in a kind of moral largeness or Romantic incandescence: 'Acting beyond the written Constitution [is] not for the weak of heart or the low in status" (III, p 124), and restraining that power simply "make[s] the office more comfortable for the risk-averse" (III, p 422). National security crises are an "accelerant" for executive power, "causing it to burn hotter, brighter, and swifter. It may burn out of control or it may flame out quickly" (III, p vii). In such circumstances, only a great heart can wisely navigate the ship of state between the "Scylla [and] Charybdis" of presidential tyranny and legislative dominance (III, p 433).
55. Consider Michael D. Ramsey, Torturing Executive Power, 93 Georgetown L J 1213, 1252 (2005) (concluding-before news about the then-unknown Terrorist Surveillance Program had broken-that "the Administration has not claimed a power to⋯ violate statutes" or asserted any other such "constitutionally dubious propositions with respect to executive power"). Given traditional assumptions about presidential behavior, Ramsey's erroneous assumption was plausible at the time. But it suggests how difficult it is now to assume that the Bush administrations vigorously defended theories of executive supremacy were otherwise merely theoretical
56. See Curtis Bradley, et al, On NSA Spying: A Letter to Congress, 53 NY Rev Books 42, 42-43 (Feb 9, 2006);
57. Elizabeth B. Bazan and Jennifer K. Elsea, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information 27-42 (CRS Jan 5, 2006), online at http://www.fas.org/sgp/crs/intel/ m010506.pdf (visited Nov 21, 2010);
58. Memorandum from David Kris, Former Assistant Deputy Attorney General 1-7 (Jan 25, 2006), online at http://balkm.blogspot.com/kris.fisa.pclf (visited Nov 21, 2010). But see II, pp 115-16 (arguing that the Authorization for Use of Military Force authorized non-FISA electronic surveillance);
59. Memorandum in Support of NSA Activities at 34 (cited in note 26) (similar).
60. See Joint Inspectors General, Unclassified Report on the President's Surveillance Program 11, 13 (FAS July 10, 2009), online at http://judiciary. house.gov/hearings/pdf/IGTSPReporto90710.pdf (visited Nov 21, 2010) (quoting an unreleased OLC memos assertion that FISA "cannot restrict the Presidents ability to engage in warrantless searches that protect the national security" or otherwise "restrict the President[]" from "gathering] intelligence necessary to defend the nation from direct attack");
61. Memorandum in Support of NSA Activities at 3, 28-36 (cited in note 26) (similar).
62. See also In re Sealed Case, 310 F3d 717, 742 (FISA Ct Rev) ("We take for granted that the President does have that authority [to conduct warrantless searches] and, assuming that is so, FISA could not encroach on the Presidents constitutional power").
63. See John Yoo, An Imperial Judiciary at War: Hamdan v. Rumsfeld, 2006 Cato S Ct Rev 83, 110-11.
64. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Towers, 84 Cal L Rev 167, 242, 292, 305 (1996).
65. There is an enormous literature on the development of American political thought from the colonial period through the early Republic. For two competing views of how the Founders understood executive power, compare Saikrishna B. Prakash and Michael D. Ramsey, The Executive Power over Toreign Affairs, 111 Yale L J 231, 234-35, 252-55 (2001);
66. Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U Ill L Rev 701, 756-69 (2003)
67. with Curtis A. Bradley and Martin S. Flaherty, Executive Power Essentialism and Toreign Affairs, 102 Mich L Rev 545, 571-626 (2004);
68. Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L J 1725, 1755-1810 (1996).
69. For a good start on the treatment of American political thought in the historical literature proper, see generally Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster 2010);
70. Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (North Carolina 1997);
71. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage 1996);
72. John Phillip Reid, Constitutional History of the American Revolution (Wisconsin 1993);
73. Bernard Bailyn, The Ideological Origins of the American Revolution (Belknap 1992);
74. Gordon S. Wood, The Radicalism of the American Revolution (Knopf 1991);
75. Forrest McDonald, Novus Ordo Seclorum: The Ideological Origins of the Constitution (Kansas 1985);
76. J.G.A. Pocock, ed, Three British Revolutions: 1641, 1688, 1776 (Princeton 1980);
77. Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (Knopf 1979);
78. Wood, Creation of the American Republic (cited in note 27).
79. For a wonderfully cheerful account of the Philadelphia Convention itself, see Clinton Rossiter, 1787: The Grand Convention (1987).
80. Federalist 51 (Madison), in The Federalist 347, 350 (Wesleyan 1961)
81. Jacob E. Cooke, ed. See also Federalist 48 (Madison), in The Federalist 332, 333 ("The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.").
82. In John Hart Elys words, "the 'original understanding' of the⋯ framers and ratifiers can be obscure to the point of inscrutability. ⋯ In this case, however, it isn't⋯. [A]ll wars, big or small, 'declared' in so many words or not⋯ had to be legislatively authorized." John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3 (Princeton 1993).
83. See also, for example, Saikrishna Bangalore, Prakash, The Separation and Overlap of War and Military Powers, 87 Tex L Rev 299, 368-77 (2008);
84. Louis Fisher, Presidential War Power 184-206 (Kansas 2d ed 2004);
85. H. Jefferson Powell, The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation 139 (Carolina 2002);
86. Michael D. Ramsey, Textualism and War Powers, 69 U Chi L Rev 1543, 1597-1609 (2002);
87. Treanor, 82 Cornell L Rev at 699-700 (cited in note 18);
88. Ely, War and Responsibility at 3-10 & nn 1-56;
89. Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iron-Contra Affair 74-81 (Yale 1990);
90. Leonard W. Levy, Original Intent and the Framers' Constitution 30-53 (MacMillan 1988);
91. Charles A. Lofgren, War-Making under the Constitution: The Original Understanding 81 Yale L J 672, 677-83 (1972).
92. This tracks a move made by advocates of a substantive Vesting Clause, who argue that "the 'executive Power'⋯ referr[ed] to an understood bundle of powers⋯ [and so] an enumeration became necessary only for those few instances in which the Founders were deviating from the prevailing understanding." Bradley and Flaherty, 102 Mich L Rev at 550 (cited in note 42). See also, for example, Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J 541, 561 n 69 (1994) (explaining that "'the executive Power'⋯ is probably not so much [a philosophically self-defining] type of power as it is a grab bag of many specifically enumerated powers, all of which we think of as belonging to the Executive").
93. This argument leads Yoo and others to conclude that "the deeper design of the Constitution itself requires us to construe any ambiguities in the scope of the executive power in favor of the President." Yoo, 69 U Chi L Rev at 1676-81 (cited in note 18).
94. See also III, p xv (similar); OLC Domestic Terrorism Memorandum at 6 (cited in note 26) (similar). Strong forms of the Vesting Clause thesis have been criticized as historically naive.
95. See, for example, Bradley and Flaherty, 102 Mich L Rev at 573 (cited in note 42) ("Unlike proponents of the Vesting Clause Thesis, the leading historians of the period have emphasized the dramatic discontinuity and conflict in American constitutional thinking.");
96. Lawrence Lessig and Cass R. Sunstein, The President and the Administration, 94 Colum L Rev 1, 41 (1994) ("[M]odern constitutionalists treat the terms 'executive' or legislative' or 'judicial' as describing fully developed categories that carve up the world of governmental power without remainder, as if governmental power were the genus, and executive, legislative, or judicial were the only species. But the founders' vision was not so complete."). Even James Wilson, for example - a strong supporter of executive power who drafted the Vesting Clause for the five-man Committee of Detail-said that he "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers," especially because the power "of war & peace" was "of a Legislative nature" (III, p 22) (emphasis added). And another delegate recorded Madison as having said that the "executive powers ex vi termini, do not include the Rights of war & peace &c" (III, p 451 n 8). And that is setting aside Yoo's failure to confront crucial aspects of the Glorious Revolution of 1688 when discussing the background of Article II's "executive power."
97. Compare Christopher N. May, Presidential Defiance of " Unconstitutional" Laws: Reviving the Royal Prerogative 3-41 (Greenwood 1998), with I, pp 49-51; III, pp 7-8 (discussing only the English Constitution's reallocation of control over legislation and funding).
98. Yoo appears to deal with this problem by describing earlier iterations of the Senate as an "executive council" that, besides having legislative control over taxing, spending, and commerce regulation, also "shared executive power" with the President (III, p 23). Thus, the argument presumably goes, the Committee of Detail's return of a new allocation centered on the sole vesting of the executive power in the President wiped out any implications that might otherwise be drawn from earlier drafts (III, p 25). There are two problems with this argument. First, the earlier allocations of power were themselves framed around similar understandings. See, for example, Max Farrand, ed, 1 The Records of the Federal Convention of 1787 64-65 (Yale 1911) (discussing the Vir Virginia Plan's grant of "the executive powers of [the old Continental] Congress" to a single executive officer). Second, the Committee of Detail's vesting of "the executive power of the United States" in a single President was itself structured in conjunction with allocations of the power "to make War" to Congress as a whole.
99. Farrand, ed, 2 Records of the Federal Convention at 167-68, and to the Senate of the powers "to make Treaties; to send Ambassadors; and to appoint the Judges of the Supreme (national) Court." Id at 169.
100. See, for example, Flaherty, 105 Yale L J at 1756-87 (cited in note 42) (describing the American political systems migration from theories of mixed government, through pure republicanism, to the separation of powers); Glenn A. Phelps, George Washington and American Constitutionalism, 121 (Kansas 1993) ("The skeleton of a constitutional government was present [in the Constitution], but it was without sinew and lacked clear definition. Perhaps the best indicator of the new Constitutions lack of clarity was the degree to which the Founders themselves⋯ disagreed over its interpretation."). See also sources cited in note 42.
101. There are serious problems with Yoo's use of source material here. For evidence of what "the executive power" was thought to entail, Yoo relies heavily on the powers granted to the chief executives of Massachusetts and New Hampshire, two states that adopted second-generation reform constitutions intended to mitigate the problems experienced by other states under legislature-dominated frameworks. He emphasizes that those states gave their chief executives "the full power ⋯ 'to encounter,⋯ repel, resist and pursue, by force of arms⋯ and also to kill, slay, destroy, if necessary, and conquer, by all fitting ways⋯ every such person and persons as shall, at any time hereafter⋯ attempt the destruction, invasion, detriment, or annoyance of this state™ (I, pp 68-69). It is a striking grant of power. But so far as I can tell, Yoo nowhere cites the concurrent limitation imposed in the very same sentence of these constitutions: their requirement that the state executives war powers must all be "exercised agreeably to the rules and regulations of the constitution, and the laws of the land." NH Const of 1784, Pt 2 (superseded 1792), reprinted in Francis Newton Thorpe, ed, 4 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories and Colonies Now or Heretofore Forming the United States of America 2464 (GPO 1909); Mass Const of 1780, Pt II, ch II, § I, art VII, reprinted in Thorpe, ed, 3 The Federal and State Constitutions at 1901. This problem has been pointed out by other commentators, see, for example, Barron and Lederman, 121 Harv L Rev at 783-85 (cited in note 19), but Yoo repeats the claim in his subsequent work (III, p 16).
102. The proposal conveyed "the legislative powers of the old Congress" to the new one, but "removed the vesting of the executive power from the executive branch" and enumerated the executives power as "extending only to executing the laws and appointing officers" (I, p 93). See also Farrand, ed, 2 Records of the Federal Convention at 129-33 (cited in note 51). Yoo's exceptionally implausible interpretation of this proposal underscores the problems with his view that "the" executive power descended in a kind of apostolic succession from the king, through colonial governors, Continental Congress, and state executives, to the President (I, pp 65-73, 79; 86, 141; III, pp 10, 12-17).
103. See alsoRossiter, The Grand Convention at 178 (cited in note 42) (describing Hamilton's speech as "an unreal interlude" that "provoked almost no response, favorable or unfavorable"). Hamilton himself apparently took the lesson, later writing in Federalist 67 of the American people's "aversion ⋯ to monarchy" and strenuously disputing Anti-Federalists' description of the President as "not merely as the embryo but as the full-grown progeny of that detested parent," the king.
104. Federalist 67 (Hamilton), in The Federalist 452, 452 (cited in note 43). Hamilton viewed these reassurances as necessary even in a document aimed at the citizens of New York State, who had voted for a state constitution creating one of the most vigorous chief executives in America (III, pp 13-15).
105. See also Steven G. Calabresi and Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv L Rev 1153, 1197 (1992) ("The Framers [] definitely did not wish to make the President of our federal republic even remotely as powerful as the English King.").
106. Such preeminence was asserted on too many occasions to cite here. For but a few examples, see Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations (Apr 4, 2003), in Karen J. Greenberg and Joshua L. Dratel, eds, The Torture Papers: The Road to Abu Ghraib 286, 307 (Cambridge 2005) ("[L]aws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States [are unconstitutional].");
107. Memorandum from Deputy Assistant Attorney General John C. Yoo to William J. Haynes II, Department of Defense General Counsel, Military Interrogation of Alien Unlawful Combatants Held outside the United States 18-19 (Mar 14, 2003), online at http://www.justice.gov/olc/docs/memo-combatantsoutsideunitedstates.pdf (visited Nov 21, 2010) (advising that "if an interrogation method arguably were to violate" federal statutes criminalizing assault, maiming, and war crimes, those statutes "would be unconstitutional as applied in this context");
108. Memorandum from Deputy Assistant Attorney General Patrick Philbin to Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, Swift Justice Authorization Act 2 (Apr 8, 2002), online at http://www.justice. gov/olc/docs/memojusticeauthorizationacto482002.pdf (visited Nov 21, 2010) ("Congress cannot constitutionally restrict the Presidents authority to detain enemy combatants or to establish military commissions to enforce the laws of war").
109. That such political tugs-of-war are an important check on presidential overreach is an ordinary assumption in separation of powers analysis. See, for example, Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich L Rev 2706, 2728-29, 2737-39 (2003);
110. Frank H. Easterbrook, Presidential Review, 40 Case W Res L Rev 905, 910-13 (1989). That they provide the sole barrier is a far stronger claim.
111. See, for example, Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution 155-57, 190-92, 198-200 (Oxford 1986). Thomas Slaughters book is probably the most thorough treatment of the subject.
112. See also Leland D. Baldwin, Whiskey Rebels: The Story of a Frontier Uprising 69, 104-09 (Pittsburgh 1939) (focusing on events in Pennsylvania).
113. The intricacy of these checks was no accident. The proposal to allow the president to call out the militia to execute federal law was controversial and much debated. It passed only after the initial bill was amended to add precisely the procedural checks that Washington later followed so carefully. Even then it was limited by a three-year sunset provision. See David E. Engdahl, Solthers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders, 57 Iowa L Rev 1, 44-48 (1971). Washington's compliance with the laws was thus no empty formality; it was both politically salient and of deeply substantive significance.
114. See Calling Forth Act of 1792 § 3, 1 Stat at 264 (requiring the President to issue a proclamation ordering insurgents to "disperse, and retire peaceably to their respective abodes"); George Washington, A Proclamation (Aug 7, 1794)
115. reprinted in James D. Richardson, ed, 1 A Compilation of the Messages and Papers of the Presidents, 1787-1897 158, 158-60 (GPO 1896) (making the required proclamation).
116. See also Phelps, Washington and American Constitutionalism, at 134 (cited in note 53) (explaining that Washington resisted calls to summon the militia without congressional support);
117. Baldwin, Whiskey Rebels at 183-85 (cited in note 60) (discussing Washington's cooperation with Congress).
118. See Stanley Elkins and Eric McKitrick, The Age of Federalism 478 (Oxford 1993).
119. See Letter from James Wilson to George Washington (Aug 4, 1794), reprinted in Walter Lowrie and Walter S. Franklin, eds, 1 American State Papers: Documents, Legislative and Executive, of the Congress of the United States, from the First Session of the First to the Second Session of the Tenth Congress, Inclusive 85 (Gales and Seaton 1834). Yoo incorrectly implies that Washington violated this judicial approval requirement, because he "had not waited for federal judges to trigger the Militia Act, but instead went directly to Justice Wilson" (III, p 70).
120. See William C. Banks, Providing "Supplemental Security": The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 J Natl Sec L & Pol 39, 59 (2009);
121. Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L J 149, 161 (2004).
122. See, for example, Robert A. Divine, The Illusion of Neutrality 102-03 (Chicago 1962);
123. Robert Dallek, Franklin D. Roosevelt and American Foreign Policy, 1932-1945 101-299 (Oxford 1979);
124. David Reynolds, The Creation of the Anglo-American Alliance 1937-41: A Study in Competitive Co-operation 16-33 (North Carolina 1981).
125. The reference to "questionable constitutionality" is a quotation from Attorney General Robert Jackson's memorandum assessing the legality of a destroyers-for-bases exchange with Great Britain. See Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op Atty Gen 484, 490 (Aug 27, 1940) (Robert H. Jackson). Yoo's sentence profoundly misrepresents what the memo actually says. Jackson did state that one narrow aspect of the neutrality laws was of "questionable constitutionality": the procedural requirement that a subordinate officer, the chief of naval operations, certify that naval material intended for transfer was "not essential to the defense of the United States." The sentence containing the quoted phrase reads, in full: Thus to prohibit action by the constitutionally created Commander in Chief except upon authorization of a statutory officer subordinate in rank is of questionable constitutionality. However, since the statute requires certification only of matters as to which you would wish, irrespective of the statute, to be satisfied ⋯ it seems unnecessary to raise the question of constitutionality which such a provision would otherwise invite. Id at 490 (emphasis added). Jackson was flagging a garden-variety unitary executive claim about personnel, procedure, and the chain of command. He expressed no skepticism whatsoever about the constitutionality of substantive legal restrictions on the Presidents ability to make such overseas transfers. When Jackson turned to precisely such substantive statutory restrictions, he did not even hint at the possibility of, let alone assert, a Commander-in-Chief Clause problem. Id at 491-92, 494-96. This is true even where-in an analytically distinct and separately numbered section of the memo-Jackson conceded the precise point that Yoo claims was in dispute: neutrality restrictions did prohibit Roosevelt from "transferring military equipment to help American national security" (III, p 300).
126. See Acquisition of Naval and Air Bases, 39 Op Atty Gen at 494-96. Not only does the text that Yoo quotes thus bear literally no relation to the proposition he employs it to serve, but its absence from the memo's parallel discussion of substantive restrictions suggests that Jackson actually rejected it. Worse still for Yoo's claim, early drafts of Jackson's opinion demonstrate that the Attorney General actually cut a section that had noted (without adopting) some commentators' arguments that precisely such power existed.
127. See William R. Casto, Attorney General Robert Jackson's Brief Encounter with the Notion of Preclusive Presidential Power, 30 Pace L Rev 364, 375-78 (2010).
128. See Barron and Lederman, 121 Harv L Rev at 1043 (cited in note 19) ("We have not found any evidence that [FDR] ever invoked any substantive, preclusive constitutional power as Commander in Chief in the prewar period."). Yoo provides no basis to conclude otherwise.
129. For the most extensive legal critique of the administration's statutory arguments, see Aaron Xavier Fellmeth, A Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935-1941, 3 Buff J Intl L 413, 473-81 (1996).
130. See also Robert Shogan, Hard Bargain: How FDR Twisted Churchill's Arm, Evaded the Law, and Changed the Role of the American Presidency 177-212 (Scribner 1995) (providing a critical historical account). Contemporaries had a range of views on the subject.
131. Compare Quincy Wright, The Transfer of Destroyers to Great Britain, 34 Am J Intl L 680, 684 (1940) (concluding that the destroyers-for-bases transfer was legal)
132. with Herbert W. Briggs, Neglected Aspects of the Destroyer Deal, 34 Am J Intl L 569, 587 (1940) (concluding that the destroyers-for-bases transfer was illegal). More recent discussions of national security problems often cite the destroyers-for-bases deal in passing as an instance of legal malfeasance.
133. See, for example, Ely, War and Responsibility at 10 & n 55 (cited in note 48);
134. Koh, The National Security Constitution at 41, 96 (cited in note 48). But on a close read of the materials, the point actually seems more equivocal than might be expected. Jackson's opinion, for example, stands up surprisingly well to inspection.
135. Compare Acquisition of Naval and Air Bases, 39 Op Atty Gen at 484 (cited in note 70)
136. with Youngstown, 343 US at 647 (Jackson concurring) (distancing himself implicitly, and rather vaguely, from assertions made by the Roosevelt administration during his attorney generalship).
137. Some of FDR's interpretations clearly stretched the boundaries of plausibility. Yoo rightly suggests that the designation of fifty Hell Diver bombers as "temporarily in excess of requirements" (III, p 298) was an implausible description of planes that had just been introduced in 1938 (III, pp 298-99). See also Warren F. Kimball, The Juggler: Franklin Roosevelt as Wartime Statesman 14-16 (Princeton 1991) (noting some military leaders' disagreement with FDRs strategic decision to commit military aid to Great Britain even at some cost to Americas own forces). But again, the key point is that FDRs administration concluded even internally that it was bound by the Neutrality Acts. As then-Justice Jackson put it when describing the administrations actions during his stint as attorney general, Roosevelt did not presume to rely upon any claim of constitutional power as Commander in Chief. On the contrary, he was advised that such destroyers⋯ could be "transferred, exchanged, sold, or otherwise disposed of," because Congress had so authorized him. A ccordingly, the destroyers were exchanged for air bases. In the same opinion, he was advised that Congress had prohibited the release or transfer of the so-called "mosquito boats" then under construction, so those boats were not transferred.
138. Youngstown, 343 US at 645 n 14 (Jackson concurring).
139. Consider also Dallek, Roosevelt and American Foreign Policy at 210 (cited in note 69) ("'I may be a benevolent dictator and all powerful Santa Claus and though the spirit has moved me at times, I still operate under the laws which the all-wise Congress passes.'") (quoting FDR's wry reflection on the legal constraints of neutrality).
140. For a concise summary of the compromise, in which "Jackson play[ed] a lesser role than Webster, Clay, Calhoun, and the leaders of the nullifiers," see Donald B. Cole, The Presidency of Andrew Jackson 169-77 (Kansas 1993).
141. See also Robert V. Remini, At the Edge of the Precipice: Henry Clay and the Compromise that Saved the Union 10-28 (Perseus 2010) ('All anyone could think of was that the Union had been saved, thanks to the Great Compromiser.");
142. David S. Heidler and Jeanne T. Heidler, Henry Clay: The Essential American 251-58 (Random House 2010) ("Clays overall triumph was spectacular⋯. [H]e was being hailed as the nations savior.");
143. Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 408 (Oxford 2007) (noting that "Clay had driven a successful bargain" with South Carolina on the strength of his "olive branch and sword" partnership with Jackson).
144. 10 Annals of Cong 11, 12 (Dec 8, 1801). See also Montgomery N. Kosma, Our First Real War, 2 Green Bag 2d 169, 174 (1999);
145. Frank Lambert, The Barbary Wars: American Independence in the Atlantic World 127-33 (Hill and Wang 2005). For a broader discussion of the way Yoo transforms presidential prevarication into evidence of Article II authority, see text accompanying notes 156-59.
146. For more on the famous Joint Committee on the Conduct of the War in particular, see generally Bruce Tap, Over Lincoln's Shoulder: The Committee on the Conduct of the War (Kansas 1998).
147. See also Harold Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution 181-87 (Knopf 1973).
148. Abraham Lincoln, Special Session Message (July 4, 1861)
149. reprinted in James D. Richardson, ed, 6 A Compilation of the Messages and Papers of the Presidents, 1789-1897 20, 24 (GPO 1897) (emphasis added). Lincoln correctly argued that some of his actions were taken pursuant to preexisting statutory authorization. Id.
150. See also The Prize Cases, 67 US (2 Black) 635, 668 (1863) ("[B]y the [Insurrection Act of 1795 and the Militia Act of 1807, the President] is authorized to⋯ suppress insurrection against the government⋯ of the United States."). But Lincoln effectively conceded in the same paragraph that some of his other actions were not "strictly legal."
151. Lincoln, Special Session Message at 24.
152. For a good, brief description of these initially unauthorized actions, see Hyman, A More Perfect Union at 61-64 (cited in note 85).
153. It might be argued that the retroactive ratification of Lincoln's war measures was analogous to Bush's various efforts to secure ex post legislative approval But the analogy does not work. Lincoln "threw himself on [Congress's] mercy," seeking its retrospective approval of his actions, "whether strictly legal or not." David P. Currie, The Civil War Congress, 73 U Chi L Rev 1131, 1136 (2006)
154. quoting Lincoln, Special Session Message at 24 (cited in note 87). And Lincoln's effort to get blanket ratification was successful on all counts, except perhaps as regards the suspension of habeas corpus. Act of Aug 6, 1861 § 3, 12 Stat 326 (stating that Lincoln's military "acts, proclamations, and orders" are "hereby approved and in all respects legalized and made valid."). See also Barron and Leder-man, 121 Harv L Rev at 998-1008 (cited in note 19). Bush's assertions of authority, by contrast, were substantially checked by the other branches. As Jack Goldsmith put it, "[a]lmost every aspect of the early unilateral Bush counterterrorism program has been pushed back against or modified, and ultimately blessed, with accountability strings attached by Congress or the courts or both."
155. Jack Goldsmith, The Accountable Presidency, New Republic at 39 (cited in note 10). Moreover, Congress remained in recess for almost three months after Confederate cannon opened fire on Fort Sumter, because Lincoln did not summon an emergency session until July 4 (III, pp 208-09).
156. See also Daniel Farber, Lincoln's Constitution 117 (Chicago 2003) (discussing symbolic, political, and practical reasons for this decision). Congress was very much in session when Flight 11 hit the North Tower.
157. See, for example, Edna Greene Medford, Imagined Promises, Bitter Realities: African Americans and the Meaning of the Emancipation Proclamation, in Harold Holzer, Edna Greene Medford, and Frank J. Williams, eds, The Emancipation Proclamation: Three Views 1, 4-21 (Louisiana State 2006);
158. Frank J. Williams, "Doing Less" and "Doing More": The President and the Proclamation-Legally, Militarily, and Politically, in Green, Medford, and Williams, eds, The Emancipation Proclamation 48, 54-62;
159. Michael Voren-berg, Final Freedom 23-28 (Cambridge 2001);
160. Ira Berlin, et al, Slaves No More: Three Essays on Emancipation and the Civil War 3-6, 27-30, 74-76 (Cambridge 1993);
161. James M. McPherson, Battle Cry of Freedom: The Civil War Era 494-500 (Oxford 1988);
162. Vincent Harding, There is a River 219-41 (Harcourt Brace Jovanovich 1981);
163. Herman Belz, Reconstructing the Union: Theory and Policy during the Civil War 101 (Cornell 1969).
164. Compare Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era 101-18 (Fordham 1998) (criticizing certain aspects of this "general[]" understanding);
165. Allan C. Guelzo, Restoring the Proclamation: Abraham Lincoln, Confiscation, and Emancipation in the Civil War Era, 50 Howard L J 397, 397-401 (2007) (criticizing the "new consensus" that Lincoln was personally "a half-hearted emancipator").
166. See, for example, Allen C. Guelzo, Lincoln's Emancipation Proclamation: The End of Slavery in America 40, 54 (Simon & Schuster 2004) (explaining Lincoln's reluctance to sign the First Confiscation Act because of his strategic concern about the problems a successful court challenge might cause for other forms of emancipation); id at 114-15 ("Lincoln⋯ had no more enthusiasm for the Second Confiscation Act than he had for the first.").
167. See, for example, Mark M. Krug, Lyman Trumbull: Conservative Radical 200 (Barnes 1965) (describing "the refusal of the administration and of the commanding Union generals to enforce [the First] Confiscation Bill");
168. Hyman, A More Perfect Union at 178-79 (cited in note 85) (attributing underenforcement of the confiscation laws to "overburdened work loads of government lawyers");
169. Guelzo, Lincoln's Emancipation Proclamation at 41-42 (cited in note 90) ("Lincoln showed little energy in enforcing the [First Confiscation Act].");
170. Barron and Lederman, 121 Harv L Rev at 1009-10, 1016 (cited in note 19) ("[The Second Confiscation Act] imposed ⋯ an affirmative obligation on the President, because Congress perceived him as being insufficiently aggressive.").
171. Abraham Lincoln, A Proclamation (Sept 22, 1862)
172. reprinted in Richardson, ed, 6 Messages and Papers of the Presidents 96, 96-98 (cited in note 87).
173. The Emancipation Proclamation was narrower than the Second Confiscation Act in some ways and broader in others. On one hand, the Proclamations failure to reach any slaves in designated Union regions was less liberationist than the Act, which applied to all slaves belonging to disloyal owners anywhere. See note 95. On the other hand, the Proclamations emancipation of all slaves in designated Confederate regions was more liberationist than the Act. This latter point is true in two ways. First, the Act did not formally trigger emancipation unless and until a slave found himself within an area of federal control, while as a theoretical matter the Proclamation instantly emancipated all slaves within the designated areas even if held by Confederate forces. This was obviously a difference in theory only; whatever the Proclamations theoretical reach, it had no more practical effect than the Act did until a slave found himself in an area of Union control. Consider Sanford Levinson, Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer I si, 2001 U Ill L Rev 1135, 1139. Second, the Act essentially applied only to slaves owned by rebels and their collaborators. That is, it did not apply to slaves belonging to loyalist owners, even in the Confederacy. This was potentially a more significant distinction, although the difference seems unlikely to have been important in practice. Yoo-appropriately, in my view-does not rely on it.
174. For a more in-depth discussion of this point, see Robert Fabrikant, Emancipation and the Proclamation: Of Contrabands, Congress, and Lincoln, 49 Howard L J 313, 370 & nn 217-18 (2006).
175. For book-length treatments of the strengths, weaknesses, and backgrounds of the Confiscation Acts, see Silvana R. Siddali, From Property to Person: Slavery and the Confiscation Acts, 1861-1862 233-34 (Louisiana State 2005);
176. John Syrett, The Civil War Confiscation Acts: Failing to Reconstruct the South 1-119 (Fordham 2005).
177. The Second Confiscation Act contained three distinct sets of provisions that are relevant here. The first defined crimes of disloyalty and their punishments. Second Confiscation Act §§ 1-4, 12 Stat at 589-90. The second dealt with property seizure generally, ordering the President "to cause the seizure" of "all the state and property, money, stocks, credits, and effects" of various categories of disloyal individuals. Second Confiscation Act §§ 5-7, 12 Stat at 589-90. The third dealt specifically with the emancipation of slaves. Second Confiscation Act §§ 9-10, 12, 12 Stat at 591-92. Section 9 immediately emancipated all slaves of disloyal owners who escaped behind Union lines or otherwise came within the control of Union officials. Second Confiscation Act § 9, 12 Stat at 591. Consider also Second Confiscation Act §§ 1-2, 12 Stat at 589-90 (imposing emancipation of slaves as a penalty for crimes of disloyalty). Crucially for Yoo's purpose, § 9 effectuated an immediately effective change in legal status: it said that all the slaves within its ambit "shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves." Second Confiscation Act § 9, 12 Stat at 591. As a straightforward matter of statutory interpretation, the Acts provisions on judicial procedure did not apply to the emancipation provision at all. (They would have applied to residual efforts under the "property" provisions of § 5 and § 6 to "seize' slaves not otherwise covered by the terms of § 9. But they had no application whatsoever to the principal emancipation provisions of the Act.) Drafting history confirms that this was no accident. Section 9 was inserted by a conference committee in response to angry Radical Republican objections to an earlier Senate draft that would have required judicial process for effective emancipation. See Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War 73-74 (Chicago 2007) (noting that conservatives sought to obscure this feature after the bill was passed). See also id at 68-69 (describing a prior version of bill). In fairness, Yoo shares illustrious company in incorrectly interpreting this long, dense, and archaic statute.
178. See, for example, Akhil Reed Amar, America's Constitution: A Biography 356 (Random House 2005);
179. McPherson, Battle Cry of Freedom at 500 (cited in note 89).
180. Consider Siddali, From Property to Person at 233-34 (cited in note 94) (discussing this reading of the Confiscation Acts);
181. J.G. Randall, Constitutional Problems under Lincoln at 279 n 10, 357-63 (Illinois 1951) (noting the absence of process for slaves to legally establish emancipation under the Act, although misconstruing the significance of that absence). But for Yoo, these distinctions are not just an aside; they are central to his separation of powers claims.
182. See Cong Globe, 37th Cong, 3d Sess 92 (Dec 15, 1862). See also Guelzo, Lincoln's Emancipation Proclamation at 169-78 (cited in note 90) (describing congressional reaction to the preliminary Proclamation);
183. Mark M. Krug, The Republican Party and the Emancipation Proclamation, 48 J Negro Hist 98, 106-07 (1963) ("There seems to be overwhelming evidence that the Emancipation Proclamation met with approval of all the factions in the Republican Party.").
184. Consider also Harry S. Blackiston, Lincoln's Emancipation Plan, 7 J Negro Hist 257, 271 (1922) ("The new Confiscation Act of 1862 proved to be a law to destroy slavery under the powers of war.").
185. Compare Edward S. Corwin, Tenure of Office and the Removal Power under the Constitution, 27 Colum L Rev 353, 362 (1927) ("[A] mere fraction of a fraction, a minority of a minority, of the House, can be shown to have attributed the removal power to the President on the grounds of executive prerogative.")
186. with Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L Rev 1021, 1045-46 (2005) (arguing that the legislative record demonstrates a majority understanding that the President had a constitutional removal power).
187. Yoo notes quite rightly that Lincoln sought to use his tactical authority to create facts on the ground in occupied territory that would push Congress toward his preferred settlement (III, pp 238-43, 247). This is good evidence of a canny and sharp-elbowed politician, and perhaps even of certain powers to act absent congressional disapproval But it is not evidence of a President ignoring or overriding statutory law, much less of Congress acquiescing to such violations. See Michael Les Benedict, The Constitution of the Lincoln Presidency and the Republican Era, in Martin L. Fausold and Alan Shank, eds, The Constitution and the American Presidency 45, 57 (SUNY 1991) ("It was Lincoln's political success at preventing⋯ [legislative] consensus, rather than any claim of exclusive constitutional power over Reconstruction, that led [to his control of events]."). Indeed, there was an ongoing tussle between Lincoln and Congress on exactly these issues, with Lincoln vetoing congressional legislation that would have set more stringent terms for Reconstruction than he wanted (III, p 240) and congressional Republicans defeating Lincoln's proposal to readmit Louisiana without first securing guarantees for the black population (III, p 243). In correspondence with state governors about the Whiskey Rebellion, Washington expressed his "entire confidence" that the governors would "'cheerfully' promote 'a due obethence to the Constitutional Laws of the Union'" (III, p 69). Yoo claims that this demonstrates Washington's belief not only that "when state governors enforced federal law, they were subordinate to him," but also that "he could command them to enforce the law" in the first place (III, pp 69-70). The problem is that Washington did not actually say that, and the fact that states cooperated with the federal government in addressing a pressing problem is weak evidence of it. See Slaughter, The Whiskey Rebellion at 196-97 (cited in note 60) (describing concessions Washington had to make to secure the Pennsylvania governor's cooperation). Washington actually jawboned state governors into cooperating with him on some other occasions that are not cited by Yoo. None of those examples appears to be any more compelling than the one on which Yoo focuses.
188. See, for example, Prakash and Ramsey, 111 Yale L J at 341 n 482 (cited in note 42);
189. Phelps, Washington and American Constitutionalism at 127-33 (cited in note 53);
190. Forrest McDonald, The Presidency of George Washington 127-28 (Kansas 1974).
191. Yoo emphasizes, for example, that FDR ordered American naval vessels to run escort for British ships "[w]ithout input from Congress" and that he did not seek approval from Congress for individual deployments of American forces once World War II began (III, p 307). He does not suggest that either policy ran afoul of federal law, and I am not aware of any statute with applicable prohibitions. See, for example, Barron and Lederman, 121 Harv L Rev at 1047-48 n 436 (cited in note 19) (describing congressional rejection of efforts to ban such escorts in 1941).
192. For classic critiques of the perils of inferring significance from congressional silence, see William N. Eskridge, Jr, Interpreting Legislative Inaction, 87 Mich L Rev 67, 95-108 (1988);
193. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 BU L Rev 109, 148 (1984).
194. See also Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 Intl Rev L & Econ 239, 241-49 (1992).
195. See generally Daryl J. Levinson and Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv L Rev 2311 (2006). One striking example of this was FDRs inability to push through a bill that would have massively centralized control over the administrative state within the White House, even when the Democrats had two-thirds majorities in both the House and Senate (III, p 284). More famously, FDRs court-packing plan was defeated during the same congressional session.
196. See Nardone v United States, 302 US 379, 382-84 (1937) ("Nardone I").
197. Franklin Delano Roosevelt, Memorandum for the Attorney General (May 21, 1940), reprinted in Electronic Surveillance for National Security Purposes, Hearings on S 2820, S 3440, and S 4062 before the Subcommittees on Criminal Laws and Procedures and Constitutional Rights of the Committee on the Judiciary, 93d Cong, 2d Sess 346, 346-47 (1974) ("Church Committee Hearings").
198. For a survey of the twentieth-century history of wiretapping, see Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, U.S. Senate, bk II at 21-38, bk III at 279-92 (Apr 26, 1976) ("Final Church Report").
199. Whether or not they were ultimately convincing on the merits, FDRs statutory arguments drew on longstanding sources of authority. See Church Committee Hearings, 93d Cong, 2d Sess at 338 (cited in note 109) (statement of Athan G. Theoharis, Associate Professor of History, Marquette University) (summarizing these arguments). First, the Communications Acts restrictions on interception and divulgence were couched in general language broadly applicable to "person[s]"; they had nothing like FISAs explicit application to the federal governments military and foreign intelligence activities. Compare Communications Act of 1934 § 605, 47 USC § 605, with 50 USC §§ 1802, 1811. FDR explicitly relied on this failure to account for national security ex-ceptionalism, describing himself as "convinced that the Supreme Court never intended any dictum in [Nardone Is interpretation of the Federal Communications Act] to apply to grave matters involving the defense of the nation." FDR Memorandum (cited in note 109). Second, long before FDR wrote his memorandum, the Justice Department had consistently asserted in ordinary criminal cases that Nardone I did not prohibit government wiretapping simpliciter. Government lawyers pointed out that the statute prohibited the "interception and disclosure" of electronic communications, Communications Act of 1934 § 605, 47 USC § 605 (emphasis added), a phrase that Justice consistently read as conjunctive, thereby preventing federal officials only from disclosing information to people outside the executive branch. See Neal Katyal and Richard Caplan, The Surprisingly Stronger Case for the Legality of the Terrorist Surveillance Program, 60 Stan L Rev 1023, 1042, 1056 (2007);
200. Joseph E. Persico, Roosevelt's Secret War 35 (Random House 2001);
201. Athan G. Theoharis and Elizabeth Meyer, The "National Security" Justification for Electronic Eavesdropping: An Elusive Exception, 14 Wayne L Rev 749, 756 (1967).
202. See also Nardone I, 302 US at 384 ("To recite the contents of the message in testimony before a court is to divulge the message.") (emphasis added).
203. Consider Nardone v United States, 308 US 338, 340-42 (1939) ("Nardone II") (prohibiting use of the fruits of wiretap surveillance in criminal trials). Neal Katyal and Richard Caplan say that these claims were, "to put it mildly, weak."
204. Katyal and Caplan, 60 Stan L Rev at 1050-52 That assessment is too harsh.
205. See United States v Coplon, 91 F Supp 867, 871 (DDC 1950) (adopting the administrations interpretation of "disclosure"), revd on other grounds, 191 F2d 749, 760 (DC Cir 1951) (also adopting the administrations interpretation of "disclosure").
206. Consider also William P. Rogers, The Case for Wire Tapping, 63 Yale L J 792, 793 (1954) ("It has long been the position of the Department of Justice that the mere interception of telephone communications is not prohibited by federal law."). That said, it is reasonable to conclude that the administrations argument would have been a loser before the Supreme Court. After all, even then-Attorney General Robert Jackson initially concluded that the Nardone decisions barred federal agents from using wiretaps (III, pp 322, 324).
207. See Theoharis and Meyer, 14 Wayne L Rev at 757 (cited in note 110);
208. Katyal and Caplan, 60 Stan L Rev at 1052-58, 1067-68 (cited in note 110). The story of how the FDR administrations activities were eventually disclosed is a complicated one, only partially summarized in Theoharis and Meyer, 14 Wayne L Rev at 760-68 (cited in note 110). The fact of the memorandums existence was in the public domain at least by 1954. See Rogers, 63 Yale L J at 795 n 14 (cited in note 110) (citing the memorandum directly).
209. See also J. Edgar Hoover, Rejoinder by Mr. Hoover, 58 Yale L J 422, 423 (1949) (describing the existence of authorization).
210. See Katyal and Caplan, 60 Stan L Rev at 1049-52, 1061 (cited in note 110).
211. For general background on this extended standoff between Congress and the President, see Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 176-216, 239-61, 271-80, 307-45 (Harper & Row 1988);
212. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-186g 210-314 (Norton 1974).
213. The first effort to impeach Johnson was sunk in part by the belief of some congressmen that the President had not violated any specific legal obligation. And Johnson was acquitted in the eventual Senate trial because some senators believed that he had not technically violated the Tenure in Office Act, a point that Yoo appears to miss. See Benedict, A Compromise of Principle at 282, 298, 309 (cited in note 115);
214. Foner, Reconstruction at 333 (cited in note 115).
215. See also Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 36-60, 89-95, 143-44 (Norton 1973) (summarizing the clearest instances of Johnsons obstructionism);
216. May, Presidential Defiance of "Unconstitutional" Laws at 56-64 (cited in note 50) (arguing that while Johnson "did everything he could to frustrate Congress's Reconstruction program," he "did so by exercising discretionary powers in ways that in a 'strained and nominal sense' adhered to the letter of the law").
217. See, for example, Benedict, A Compromise of Principle at 310-11 (cited in note 115).
218. Yoo's distrust of the judiciary is palpable. See, for example, his description of the judiciary as characterized by "20/20 hindsight, courtroom posturing, media circuses, lack of secrecy, exposure of sources and methods of intelligence-gathering and uninformed, unpredictable juries" (II, p 202). But his earlier work suggests greater moderation about the conclusions to be drawn from that instinct. See Saikrishna Prakash and John Yoo, Against Interpretive Supremacy, 103 Mich L Rev 1539, 1553-59 (2005) (aruing "in favor of judgment supremacy, but against interpretive supremacy"). Assuming that Yoo's earlier views remain in play, it is possible to take a more measured understanding of some of his comments here-although in ways that are unlikely to be obvious on their face to the nonspecialist, let alone the nonlawyers at whom this work is partly aimed. He says, for example, that "[t]he judiciary has an equal right to interpret the Constitution, but its opinions are no more binding on the other branches than the decisions of the President and Congress bind the courts" (III, p 396), and that "[w]hile the constitutional structure allows the courts the power of judicial review, nothing gives their decisions supremacy over the other branches" (III, p 388).
219. For an important modern exchange on these questions and this vocabulary, see Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Georgetown L J 217, 241-62 (1994);
220. Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Georgetown LJ 373, 384 (1994).
221. *28 (US filed June 19, 2002) (available on Westlaw at 2002 WL 32728567) ("DOJ Hamdi Brief) (emphasis added) (concluding on this basis that "no evidentiary proceedings are required to resolve a habeas petition filed on behalf of such a detainee").
222. *37 (US filed July 22, 2003) (available on Westlaw at 2003 WL 23622382) (denying that Padilla was "entitled to present facts disputing the Presidents determination").
223. *14 (US filed Apr 21, 2004) (available on Westlaw at 2004 WL 871163) ("The issue thus is not whether the Presidents determination in the abstract falls within Congress's Authorization, but whether the President permissibly concluded that it does.").
224. Hamdi v Rumsfeld, 296 F3d 278, 283 (4th Cir 2002) (emphasis added) (describing the United States as asserting the "sweeping proposition" that "any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the governments say-so"), vacd and remd, 542 US 507 (2004).
225. To be sure, as a practical matter, judicial deference in crisis situations has long been an observed fact, certainly in terms of decisional outcomes. See, for example, Ko-rematsu v United States, 323 US 214, 219 (1944);
226. Ex parte Quirin, 317 US 1, 2 (1942);
227. Ex parte McCardle, 74 US (7 Wall) 506, 513-14 (1868);
228. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime 11-25, 173-202 (Vintage 1988);
229. Michael Linfield, Freedom under Fire: U.S. Civil Liberties in Times of War 17-19 (South End 1990).
230. For an excellent short treatment of how the Neutrality Proclamation was drafted, see Elkins and McKitrick, The Age of Federalism at 336-41 (cited in note 65).
231. The evidence for this assertion is equivocal at best. Compare Bradley and Flaherty, 102 Mich L Rev at 669 n 603 (cited in note 42) (citing the lack of cabinet discussion about the existence of an exclusive constitutional authority)
232. with Prakash and Ramsey, 111 Yale L J at 324-27 (cited in note 42) (arguing that this belief was implicit in the discussions). Washington's failure to consult Congress seems of little more legal significance, standing alone, than any executive officers failure to consult Congress or the courts about the proper interpretation of an important statute. We would hardly conclude from the latter scenario that the President was asserting the "sole" power to interpret statutes.
233. Alexander Hamilton, Pacificus No I (June 29, 1793)
234. in J. Gideon and G.S. Gideon, Letters of Pacificus and Helvidius (1845) with the Letters of Americanus 5, 14-15 (Scholars' Facsimiles & Reprints 1976): In order to the observance of that conduct which the laws of nations, combined with our treaties, prescribed to this country, in reference to the present war in Europe, it was necessary for the president to judge for himself, whether there was any thing in our treaties, incompatible with an adherence to neutrality. See also id at 8 ("[T]he judiciary department ⋯ is indeed charged with the interpretation of treaties, but it exercises this function only where contending parties bring before it a specific controversy.").
235. Yoo also omits an important episode that came shortly after the Neutrality Proclamation was issued: Washington's request that the Supreme Court definitively resolve the treaty questions for him. The Court declined to do so, refusing to issue an advisory opinion when it was not presented with a live controversy between actual parties. See Phelps, Washington and American Constitutionalism at 164-67 (cited in note 53);
236. Neal Kumar Katyal, Judges as Advicegivers, 50 Stan L Rev 1709, 1742-46 (1998). But the fact that Washington sought the Court's approval at all-on a national security question to boot-presents a real problem for historical claims about the President's independent authority to determine legal questions conclusively. With that said, the Proclamation is good evidence for presidential initiative at least in defining the substance of external communications, which has been contested by some scholars. (Pubitemid 128426615)
237. See, for example, Louis Henkin, Foreign Affairs and the United States Constitution 42-45 (Clarendon 2d ed 1996).
238. Compare Michael J. Glennon, Constitutional Diplomacy 24 (Princeton 1990).
239. Address of George Washington, 4 Annals of Cong 11 (Dec 3, 1793) (emphasis added). Note the disjunctive nature of his last sentence: this was not merely a request that Congress provide for the enforcement of Washington's announced policy; it was a recognition that Congress might instead choose to change it.
240. -56)-Jackson supposedly said, "Well, John Marshall has made his decision, now let him enforce it" (III, p 156). Even if this comment were accurately reported, the federal government was not a party to the case, and no concrete question of federal enforcement was ever presented, because Jackson convinced the Georgia governor to settle with his opponents out of court. See Cole, The Presidency of Andrew Jackson at 165 (cited in note 79).
241. See Barry Cusliman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution 104-05 (Oxford 1998);
242. Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U Pa L Rev 1891, i974-84 (1994). (Pubitemid 24819580)
243. See id at 422-23. On the Bank War more generally, see, for example, Arthur M. Schlesinger, Jr, The Age of Jackson 74-114 (Little, Brown 1945);
244. Robert V. Remini, Andrew Jackson 141-68 (Twayne 1966).
245. See I, p 255 (emphasis added): [The contrary view] confuses constitutional meaning with Supreme Court decisions that limit the Courts own discretion in reviewing the constitutionality of legislation. McCulloch[]⋯ does not relieve the president or Congress from determining whether certain means actually are constitutional, and it was precisely on this ground that President Jackson vetoed the bill chartering the Second Bank of the United States. See also Trevor W. Morrison, Suspension and the Extrajudicial Constitution, 107 Colum L Rev 1533, 1581-82 n 235 (2007) (suggesting a similar reading). This interpretation may go a good way toward explaining why the angry reaction to Jacksons veto focused on his rejection of the force of legislative precedent for the banks constitutionality, not on its arguable inconsistency with McCulloch.
246. See Gerard N. Magliocca, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes 54-56 (Kansas 2007).
247. In fact, while this point is often missed, Jackson emphatically denied that he was flouting McCulloch. To the contrary, Jackson spent the vast bulk of his constitutional discussion (nineteen of twenty paragraphs) arguing within the framework established by McCulloch. He made the following two points: (1) while McCulloch approved the notion of a bank in principle, it did not hold that all such banks were automatically "necessary and proper" regardless of the background facts or the details of their corporate structure; and (2) this particular bank act in these particular circumstances did not pass muster under McCulloch's own enunciated test. Jacksons aggressive comments about independent presidential interpretation were a single paragraph added as an arguendo alternative to these nineteen paragraphs of argumentation within the McCulloch framework. See Andrew Jackson, Veto Message (July 10, 1832)
248. reprinted in Richardson, ed, 2 Messages and Papers of the Presidents 576, 582-89 (cited in note 63) (emphasis added): if the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate activities of this Government⋯. But in [McCulloch] the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution. That a bank of the United States⋯ might be so organized as not to infringe on [the Constitution] I do not entertain a doubt.
249. To be clear, Jefferson's refusal to prosecute what he viewed as constitutionally protected activity is good historical evidence for an understanding that Presidents should refrain from violating what they understand to be the constitutional rights of private citizens. See, for example, Easterbrook, 40 Case W Res L Rev at 922-23 (cited in note 59);
250. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op OLC 199, 200-02 (1994). The assertion of power to ignore statutes that restrain positive action by the President in a separation of powers context, however, is a very different question, and that distinction deserves far more sensitivity than Yoo accords it.
251. See United States v Nixon, 418 US 683, 703-13 (1974).
252. In its negotiations with Congress, the administration threatened to engage in hostilities against Iraq without legislative authorization. See Mike Allen and Juliet Eilperin, Bush Aides Say White House Needs No Hill Vote, Wash Post A1 (Aug 26, 2002). And it viewed the commander-in-chief power as an adequate and independent alternative to the September 14, 2001 Authorization for Use of Military Force (AUMF), Pub L No 107-40, 115 Stat 224 (2001).
253. See Memorandum from Deputy Assistant Attorney General John C. Yoo to Deputy Counsel Timothy Flanigan, The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them (Sept 25, 2001)
254. in Greenberg and Dratel, eds, The Torture Papers 2, 23 (cited in note 57). On virtually any account, September 11 constituted a use of force sufficient to trigger the Presidents responsibility to respond to a sudden attack. Passing over any difficulties with al Qaedas status as a nonstate actor and its relationship to the Taliban government of Afghanistan, this means that the invasion of Afghanistan might be justified even on narrower understandings of the commander-in-chief power. The second Iraq war does not enjoy similar status; at most it was a preemptive effort to forestall potential attacks on the United States that might have taken place at some point in the future.
255. It is not obvious why, on Yoo's view of executive preeminence, Congress should be able to impose legally binding restrictions on specific military operations through the appropriations mechanism (I, p 160; III, pp 357-58, 409). To be clear, there is a strong consensus that appropriations restrictions are legally enforceable. US Const Art I, § 9, cl 7. But on any account, tricky questions arise over the use of funding restrictions to impose restrictions that Congress could not require directly. See Peter Raven-Hansen and William C. Banks, Pulling the Purse Strings of the Commander in Chief, 80 Va L Rev 833, 883-88 (1994); (Pubitemid 24793730)
256. J. Gregory Sidak, The President's Power of the Purse, 1989 Duke L J 1162, 1183;
257. Kate Stith, Congress' Power of the Purse, 97 Yale L J 1343, 1350-51 (1988). Unless Yoo rejects the idea of an unconstitutional conditions doctrine in the appropriations context, his views on presidential preeminence should imply even stricter limits-and perhaps even a categorical bar-on Congress's ability to restrict funds.
258. See note 48. For a concisely devastating point-by-point refutation of Yoo's historical arguments on their own terms, see Ramsey, 106 Colum L Rev at 1453-73 (cited in note 6). More recent work on the original understanding of "Commander in Chief and "declare War" shows Yoo's continued isolation on this question even among methodologically committed originalists.
259. See, for example, Michael Stokes Paulsen, The War Power, 33 Harv J L & Pub Pol 113, 124-25 (2010);
260. Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77 Geo Wash L Rev 89, 93, 99 (2008);
261. Ramsey, 69 U Chi L Rev at 1548-53 (cited in note 48). Given the constitutional allocation to Congress of control over the militia, originalists have a particularly difficult time claiming presidential preeminence over the use of force domestically.
262. See generally Stephen I. Vladeck, The Calling Forth Clause and the Domestic Commander in Chief, 29 Cardozo L Rev 1091 (2008) (emphasizing the significance of the Article I, § 8 Militia Clause given the Founders' assumption that military power would center on the militia).
263. See also Youngstown, 343 US at 644 (Jackson concurring) (making a similar point).
264. John Hart Ely once observed that claims of general compliance with a stated norm are difficult to document with anything approaching elegance. Trudging across acres of lawful behavior is unbearably boring for both writer and reader, and placing the arguable counterexamples in perspective often serves on ly to convey the mistaken impression that the counterexamples represent the norm. Ely, War and Responsibility at 147-48 (cited in note 48).
265. For a nonexhaustive list of such evidence, see, for example, David P. Currie, Foreign Affairs: Presidential Initiative and Congressional Control, 101 Mich L Rev 1453, 1459-61 (2003) (summarizing actions by Presidents George Washington, James Madison, James Monroe, John Quincy Adams, John Tyler, James Polk, Millard Fillmore, Franklin Pierce, and James Buchanan showing their recognition of the constitutional requirement that Congress authorize warfare);
266. Ely, War and Responsibility at 148-51 (cited in note 48) (discussing "[a]rrays of compliant statements (and behavior) by essentially all our Presidents pre-Truman (plus, emphatically, Eisenhower)-to the effect that the decision to authorize acts of war rests unequivocally with Congress").
267. -65, 154-56 (cited in note 48) (discussing low-level "life and property" interventions to protect Americans overseas by Presidents William McKinley, Theodore Roosevelt, William Howard Taft, Calvin Coolidge, and Woodrow Wilson). The work does not even mention two well-known Supreme Court cases from the Jeffersonian period that successfully enforced congressional limitations on the Presidents war powers.
268. See Little v Barreme, 6 US (2 Cranch) 170, 177-78 (1804) (recognizing an implicit congressional bar on the use of the navy);
269. Broiun v United States, 12 US (8 Cranch) 110, 126 (1814) (recognizing an implicit congressional bar on certain prize captures). And its failure to acknowledge, let alone deal with, the Founders' statements about the Presidents inability to initiate hostilities has been widely noted.
270. See, for example, Ramsey, 69 U Chi L Rev at 1548-51, 1566 (cited in note 48) (citing acknowledgements of Congress's exclusive power to commence hostilities by, for example, Thomas Jefferson, James Madison, Alexander Hamilton, John Marshall, George Washington, Henry Knox, John Jay, and James Wilson, and noting that "no prominent figure took the other side").
271. The President's News Conference of March 10, 1954, in Public Papers of the Presidents of the United States: Dwight D. Eisenhower, 1954 299, 306 (GPO 1960).
272. James S. Lay, Jr, Executive Secretary of the National Security Council, Memorandum of Discussion at the 214th Meeting of the National Security Council, Denver, September 12, 1954 (Sept 13, 1954)
273. reprinted in John P. Glennon, David W. Mabon, and Harriet D. Schwar, eds, 14 Foreign Relations of the United States, 1952-1954 613, 618 (GPO 1985) (quoting President Eisenhowers statement to the National Security Coun-cil).
274. Memorandum of Presidential Telephone Conversation, Monday, April 5, 1954, 8:27 am., reprinted in John P. Glennon and Neal H. Petersen, eds, 13 Foreign Relations of the United States, 1952-1954 1241, 1242 (GPO 1982) (summarizing a private phone conversation between President Eisenhower and Secretary of State John Foster Dulles).
275. For a range of views on the start of the Mexican-American War, see Paul H. Bergeron, The Presidency of James Polk 65-77 (Kansas 1987) (emphasizing Polks efforts to avoid resort to warfare);
276. John S. D. Eisenhower, So Far from God: The U.S. War with Mexico, 1846-1848 48-68 (Random House 1989) (focusing on events in Texas and Mexico);
277. Howe, What Hath God Wrought at 731-43 (cited in note 79) (emphasizing Polks intentionally provocative belligerence).
278. Eisenhower, So Far from God at 49-50 (cited in note 156).
279. There is no question that Yoo describes a presidency that has come to dominate the American political scene. But he offers no convincing historical evidence for the executive power claims discussed in this Essay. Other scholars have noted instances of presidential defiance not discussed in Yoo's work, including a few episodes that might arguably implicate Yoo's legal claims. See, for example, May, Presidential Defiance of "Unconstitutional" Laws 116-18, 127-35 (cited in note 50). Discussing those is beyond the scope of this Essay. I would refer interested readers to Mays conclusion that history shows at most a "desultory record of presidential noncompliance, involving twenty incidents [only a few of which involved the national security context] spread over a period of almost 200 years," id at 131, and suggest that Yoo's lack of attention to the omitted incidents indicates their insignificance.
280. See, for example, Youngstoum, 343 US at 652-53 (Jackson concurring) (describing the presidency's political leverage during wartime).
281. See Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies since 9/II 62, 65 (Simon & Schuster 2006) (referring to former Vice President Dick Cheneys advice that if there is a 1 percent chance of serious terrorist attack, it should be treated as a certainty).
282. For two of the best summaries of this process-in which an initially cautious Madison became convinced that war was necessary and then worked vigorously to overcome powerful domestic opposition to conflict-see J.C.A. Stagg, Mr. Madison's War: Politics, Diplomacy, and Warfare in the Early American Republic, 1783-1830 48-119 (Princeton 1983);
283. Ralph Ketcham, James Madison: A Biography 491-533 (Macmillan 1971).
284. See also Garry Wills, James Madison 96 (Times Books 2002) ("[F]ar from being pushed into war by a bellicose Congress, [Madison] had to drag his own hesitant party into it, past the determined obstruction of the Federalists.");
285. Walter LaFeber, The American Age: United States Foreign Policy at Home and Abroad Since 1750 58-61 (WW Norton 1989) (emphasizing Madison's leadership on the war issue);
286. Donald R. Hickey, The War of 1812: A Forgotten Conflict 28, 37 (Illinois 1989) (emphasizing Madison's support for war and leadership in pressing for it).
287. Consider also Jack N. Rakove, James Madison and the Creation of the American Republic 150-58 (Scott, Foresman 1990) (emphasizing Madisons initial reluctance to conclude that war was necessary);
288. Robert Allen Rutland, The Presidency of James Madison 86 (Kansas 1990) ("President Madison was not pushed into war-he backed into it.").
289. On this point, see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 178g-1815 662-74 (Oxford 2009) (arguing that the War of 1812 was a necessary result of Republican foreign policy since the Jefferson Administration, which had attempted to alter French and British behavior by "every mode of coercion short of war," without success).
290. See Hickey, The War of 1812 at 28 (cited in note 165);
291. Steven Watts, The Republic Reborn: War and the Making of Liberal America, 1790-1820 242-43 (Johns Hopkins 1987);
292. La Feber, The American Age at 58 (cited in note 165);
293. Stagg, Mr. Madison's War at 68-69, 76, 78-79 (cited in note 165);
294. Ketcham, James Madison at 495 (cited in note 165).
295. See James Madison, Third Annual Message (Nov 5, 1811)
296. reprinted in Richardson, ed, 1 Messages and Papers of the Presidents 476, 478-81 (cited in note 162) (describing the administrations preparations for war in the face of "ominous indications" and calling for arms and troops to handle "the crisis"). Even though his secretary of the Treasury had convinced Madison to eliminate even more inflammatory language, contemporaries viewed Madison's 1811 State of the Union as a "war message."
297. Hickey, The War of 1812 at 30, 32 (cited in note 165);
298. Ketcham, James Madison at 509 (cited in note 165). It is not hard to see why.
299. Watts, The Republic Reborn at 265 (cited in note 167).
300. See Wills, James Madison at 94 (cited in note 165) ("Madison, largely through Monroe, coordinated ways to choreograph congressional developments.");
301. Rakove, Madison and the Creation of the American Republic at 157 (cited in note 165) (describing Madison's use of Monroe and Gallatin to push Congress toward war);
302. Hickey, The War of 1812 at 37 (cited in note 165) ("President Madison⋯ used the powers of his office to stimulate the war spirit further.");
303. Stagg, Mr. Madison's War at 84-85 (cited in note 165) (discussing Madison's use of congressional allies to push administration policy);
304. Ronald Hatzenbuehler, The War Hawks and the Question of Congressional Leadership in 1812, 45 Pac Hist Rev 1, 3 (1976) ("[T]he minutes of the Foreign Affairs Committee clearly indicate that Madison effectively used Monroe to communicate indirectly with Congress.").
305. Hickey, The War of 1812 at 37 (cited in note 165). This episode turned into an embarrassment for the administration when it became clear that the administrations claims did not have nearly the evidentiary support that Madison suggested. Id at 37-38.
306. See also Stagg, Mr. Madison's War at 104-05 (cited in note 165) (describing Madison's secretary of state instructing sympathetic members of the press to print editorials calling for war with Britain).
307. See, for example, Wills, James Madison at 92-96 (cited in note 165). To be sure, there was a vigorous "war hawk" faction among congressional Republicans, and part of Madison's political dilemma was the difficulty of reconciling their belligerence with the antiwar sentiment of other Republican factions.
308. See, for example, Stagg, Mr. Madison's War at 48-55 (cited in note 165). But even if we assume arguendo that the minority war hawk faction bullied Madison into war by dint of sheer personality - a reading that is now substantially discredited among historians-this does not get Yoo where he needs to go.
309. See Harold S. Schultz, James Madison 153-57 (Twayne 1970) (refuting the erroneous perception by some of Madison's contemporaries that the war hawks pressured him unwillingly into conflict);
310. Rutland, The Presidency of James Madison at 85-86 (cited in note 165) (same);
311. Bradford Perkins, Prologue to War: England and the United States 1805-1812 260 (California 1961) (same).
312. Consider also Watts, The Republic Reborn at 251-63 (cited in note 167) (noting the intellectual influence and ideological leadership of some of these younger politicians). The problem of misguided influence by unwise advisors is distinct from Yoo's argument about Congress as an institution of government. Indeed, the legislative branch is hardly the only source of misguided personal influence on the President, as at least some events of the past half century might suggest.
313. See, for example, Wood, Empire of Liberty at 670-74 (cited in note 166);
314. Rakove, Madison and the Creation of the American Republic at 150, 157 (cited in note 165);
315. Hickey, The War of 1812 at 41 (cited in note 165);
316. La Feber, The American Age at 60 (cited in note 70);
317. Stagg, Mr. Madison's War at 86-91, 105-07 (cited in note 165).
318. See Stagg, Mr. Madison's War at 110-15 (cited in note 165);
319. Hickey, The War of 1812 at 44-45 (cited in note 165). Before Madison made his request, Congress had been inclined simply to adjourn for recess.
320. See Rutland, The Presidency of James Madison at 101 (cited in note 165).
321. See, for example, Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 45-57 (Oxford 2007);
322. Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency 36-37 (Oxford 2006).
323. This assertion has already been overtaken by events. See, for example, Carrie Johnson, Man Held in Bomb Attempt Said to Be Cooperating, Wash Post A3 (Feb 3, 2010);
324. William Branigin and Anne E. Kornblut, Holder Defends Decision to Read Miranda Rights to Shahzad, Cites His Continuing Cooperation, Wash Post (May 6, 2010), online at http://www.washingtonpost.com/wp-dyn/content/article/2010/05/ 06/AR2010050603380.html (visited Sept 13, 2010);
325. William Glaberson, When a Suspect Likes to Talk, and Talk, NY Times A13 (May 7, 2010). Even before Crisis and Command went to press, more careful attention to the public debate would have complicated the basis for Yoo's assertion.
326. See, for example, Ali Soufan, My Tortured Decision, NY Times A27 (Apr 23, 2009) ("It is inaccurate, however, to say that Abu Zubaydah had been uncooperative [before he was waterboarded]⋯. There was no actionable intelligence gained from [our use of] enhanced interrogation techniques on Abu Zubaydah that wasn't, or couldn't have been, gained from regular tactics.").
327. This is highly contested, and by people with better reason to know. See Scott Shane, David Johnston, and James Risen, Secret U.S. Endorsement of Severe Interrogations, NY Times A1 (Oct 4, 2007) ("[A] former [senior agency] official said many C.I. A. professionals now believe patient, repeated questioning by well-informed experts is more effective than harsh physical pressure.");
328. Department of the Army, Army Field Manual 2-22.3: Human Intelligence Collector Operations 5-22 (Sept 6, 2006) ("[T]orture ⋯ is a poor technique that yields unreliable results⋯.");
329. Department of Defense, News Briefing with Deputy Assistant Secretary Stimson and Lt Gen Kmimons from the Pentagon (Sept 6, 2006), online at http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=3712 (visited Sept 19, 2010) (statement of Lt Gen John Kimmons, Army Deputy Chief of Staff for Intelligence) ("I am absolutely convinced⋯ [that] [n]o good intelli gence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that.").
330. But see, for example, Stuart Taylor, Jr and Benjamin Wittes, Looking Forward, Not Backward: Refining U.S. Interrogation Law, in Benjamin Wittes, ed, Legislating the War on Terror: An Agenda for Reform 310-26 (Brookings 2009) (discussing claims about the effectiveness of harsh coercion).
331. DOJ, OLC, Interrogation of al Qaeda Operative 2-3, 10 (Aug 1, 2002), online at http://www.justice.gov/olc/docs/memo-bybee2002.pdf (visited Nov 23, 2010);
332. International Committee of the Red Cross, ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody 13-14, 28, 30 (Feb 2007) ("ICRC Report"), online at http://www.nyb ooks.com/media/doc/ 2010/04/22/icrc-report.pdf (visited Dec 17, 2010).
333. See DOJ, OLC, Interrogation of al Qaeda Operative at 6 (cited in note 183) (suggesting that this technique should be approved unless expected to produce "psychosis or permanent brain damage[|" in a particular case);
334. DOJ, OLC, Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee 12, 35-36, 39 (May 10, 2005), online at http://www.justice.gov/olc/ docs/memo-bradbury2005-2.pdf (visited Nov 23, 2010);
335. ICRC Report at 11-12 (cited in note 183);
336. DOJ, OLC, Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Convention to Certain Techniques That May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees 9 (July 20, 2007), online at http://www.justice.gov/olc/docs/memo-warcrimesact.pdf (visited Nov 23, 2010).
337. DOJ, OLC, Interrogation of al Qaeda Operative at 3-4 (cited in note 183) (describing waterboarding).
338. ICRC Report at 10 (cited in note 183).
339. DOJ, Office of Legal Counsel, Application of United States Obligations under Article 16 of the Convention against Torture to Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees 37 (May 30, 2005) ("Memorandum on US Obligations"), online at http://www.justice. gov/olc/docs/memo-bradbury2005.pdf (visited Nov 22, 2010) (describing, at a minimum, the number of individual instances that water was poured into Khalid Shaikh Mohammed's mouth and nose to achieve this drowning sensation). Marc Thiessen suggests, on the basis of anonymous agency sources, that the OLC memorandum overstates how many separate, individual instances of suffocation actually took place.
340. See Thiessen, Courting Disaster at 178-79 (cited in note 13). Whether or not that is accurate, OLC assumed differently, and it is of course OLC memoranda that govern the outer bounds of permissible behavior.
341. To be clear, one scholar has recently read the revised Army Field Manual as precluding the use of less metheval techniques, too, including what was formerly called "Fear-Up (Harsh)." See Nathan Alexander Sales, Self-Restraint and National Security 9-10 (Geo Mason U L & Econ Research Paper Series, No 10-41), online at http://ssrn.com/abstract-id=1664610 (visited Nov 2, 2010). But that reading of the text, while plausible on its face, conflicts with the Pentagons expressed understanding. Department of Defense, News Briefing (cited in note 179) (statement of Lt Gen John Kimmons, Army Deputy Chief of Staff for Intelligence) ('All of the techniques that were in the old Field Manual are still approved. There were 17; we combined two of them into one. That's why there's 1 6 that were carried forward. But if you have a copy of the old Field Manual, it's exactly the same techniques.).
342. See also Department of the Army, Army Field Manual 34-52: Intelligence Interrogation 3-16 (Sept 28, 1992)
343. superceded by Army Field Manual 2-22.3 (noting that an interrogator using Fear-Up (Harsh) "behaves in an overpowering manner with a loud and threatening voice" and may "throw objects across the room" to "heighten the implanted feelings of fear"). Even if the CIA took a more cautious approach than the Pentagon and interpreted the Field Manual as prohibiting some elements of Fear-Up (Harsh), the manual leaves room for many other kinds of harsh interaction.
344. See, for example, Department of the Army, Army Field Manual 2-22.3 at 8-3 (cited in note 179) (permitting the relationship between interrogator and detainee to "be based on⋯ fear"); id at 8-13 (requiring interrogators to begin interactions in a "businesslike" manner, "[u]nless there is rationale for acting otherwise"); id at 8-15 ("[The interrogator] must not show distaste [or] disgust⋯ unless that reaction is a planned part of the approach strategy."); id at 8-26 ("[Supervisors should question the appropriateness of demeaning any racial group, including the [detainee's], to elicit an emotional response."); id at 8-37 (A fear-up approach is normally presented in a level, unemotional tone of voice. "); id at 8-38 ("It is often very effective to use the detainee's own imagination against him. The detainee can often visualize exactly what he is afraid of better than the [interrogator] can express it"); id at 8-47 (allowing interrogators to undermine a detainee by "attacking his loyalty, intelligence, abilities, leadership qualities, slovenly appearance, or any other perceived weakness"); id at 8-49 (inculcating "a feeling of hopelessness and helplessness" by "exploit[ing] the sources psychological, moral, and sociological weaknesses"); id at 8-65 (describing the "Mutt & Jeff" good-cop-bad-cop technique). While the manual admonishes that an interrogator "must be extremely careful that he does not threaten or coerce a source" himself, id at 8-10, it delimits the scope of this prohibited "coercion" quite narrowly.
345. See id at 5-22. John Locke, Second Treatise of Civil Government § 160 at 82 (Barnes & Noble 1966) (originally published 1689). See also I, pp 37-38; III, p 5. To be sure, acknowledging the Jeffersonian prerogative poses its own set of civil liberties risks.
346. See Shane, Johnston, and Risen, Secret U.S. Endorsement of Severe Interrogations, NY Times at Ai (cited in note 179) (quoting John D. Hutson, former Judge Advocate General of the Navy, as saying, "I know from the military that if you tell someone they can do a little of this for the country's good, some people will do a lot of it for the country's better").
347. At times, Yoo seems attracted to the notion of post hoc absolution, suggesting, for example, that FDR and Lincoln "may have gone too far at times but we forgive them" (III, P424). Butth is is just flirtation. His ultimate rejection of the prerogative as a mechanism of executive power is never in serious doubt (III, pp 425-26). Other scholars have been more sympathetic to the notion of a true prerogative. See, for example, Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L J 1011, 1096-1133 (2003);
348. Jules Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L J 1385, 1427-28 (1989).
349. See also Michael Walzer, Political Action: The Problem of Dirty Hands, in Marshall Cohen, Thomas Nagel and Thomas Scanlon, eds, War and Moral Responsibility 62, 63 (Princeton 1974).
350. See DOJ, Office of Professional Responsibility, Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists (July 29, 2009), online at http://judiciary.house.gov/ hearings/pdf/OPRFinalReporto90729.pdf (visited Nov 23, 2010) (quoting a colloquy between Yoo and an investigator from the Department of Justices Office of Professional Responsibility: "Q: What about ordering a village of resistants to be massacred?⋯ A:⋯ [C]ertainly that would fall within the Commander-in-Chief's power over tactical decisions. Q: To order a village of civilians to be [exterminated]? A: Sure") (second alteration in original).
351. See Al Kamen, No Treaty, No Law, No Problem, Wash Post A17 (Feb 6, 2008) (quoting Yoo responding to the question whether Congress can prohibit such actions by stating, "I think it depends on why the president thinks he needs to do that").
352. For the audio of Yoo's response, see John Yoo Says President Bush Can Legally Torture Children (Sept 2, 2006), online at www.youtube.com/watch?v= hzoihN9l-B]Vl (visited Nov 23, 2010).
353. Letter from Thomas Jefferson to John B. Colvin (Sept 20, 1810), reprinted in Philip B Kurland and Ralph Lerner, eds, 4 The Founders' Constitution 127, 127-28 (Chicago 1987).
354. See Dan M. Kalian, Yale Law School Commencement Remarks (May 25, 2006), online at http://www.law.yale.edu/documents/pdf/kahanREVISED.pdf (visited Nov 23, 2010).
355. See also DOJ, OLC, Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 1 (Jan 15, 2009), online at http://www.justice.gov/olc/docs/memostatusolcopinionso1152009.pdf (visited Nov 21, 2010) (rescinding a series of post-September 11 memoranda as resting on "doubtful" premises, "[p]erhaps reflecting" their composition during "the months following 9/11," "a time of great danger" and "extraordinary time pressure").
356. Eugene W. Fields, Factbox, Orange County Reg (Mar 3, 2009), online at http://www.ocregister.com/articles/government-142542-think-legal.html (visited Nov 23, 2010).
357. John Yoo and Bob Barr, Panel Discussion, Presidential Towers versus Civil Liberties in Times of War, (The University of Chicago Law School, Feb 9, 2010) online at http://federalist.uchicago.edu/podcasts/Barr-Yoo-020910.mp3 (visited Dec 17, 2010) (statement of John Yoo). See also II, pp 169-71. Yoo writes elsewhere that the only real failing of the more notorious OLC memoranda was their failure to "paint a pretty picture" (II, p 172), be "more politically correct" (II, p viii), "placate the sensibilities" of hypersensitive readers, and "g[i]ve less offense" (II, p 171).
358. See David E. Sanger and Eric Schmitt, Bush Says He's Confident That He and McCain Will Reach Agreement on Interrogation Policy, NY Times A22 (Dec 13, 2005) (quoting McCain as saying, "You do what you have to do⋯. But you take responsibility for it").