03/28/2011 02:55 pm ET Updated May 28, 2011

Obama, War Powers, and Yoo

No one is always wrong, including former Bush administration lawyer and Berkeley law professor John Yoo. Yoo was right when he wrote in the Wall Street Journal on March 25 that Obama "flip-flopped" when the then-senator said in 2007 that presidents lacked the constitutional power "to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," but then apparently did so when he ordered military action against Libya on March 19. (While Obama complied with the terms of the War Powers Act, prior congressional approval rested on the slim reed of a March 1 Senate resolution.)

Yoo's chief problem as a constitutional commentator stems not from his tendentious memos justifying torture in the weeks after 9/11 during his stint in the Bush administration, but because his underlying constitutional analysis of presidential power is literally the opposite of what the Founders intended and wrote. In Yoo's analysis, American executive power in foreign policy was copied from the British monarchy, where the monarchs once maintained a monopoly of power over war and military matters. According to Yoo, "the Constitution gives the President the initiative in war." But Yoo gets it exactly wrong. The Founders plainly rejected the British monarchy as a template for presidential power. As constitutional scholar Louis Fisher writes: "To read the declare war clause as permitting presidents to initiate war ignores almost every statement made by the framers."

In Yoo's upside-down constitutional world, Congress has only two checks on presidential military action -- impeachment, and control of appropriations, both of which can only be used after the president has acted. And the courts have no role, as they may not adjudicate in matters related to war decisions, he says. In other words, checks and balances scarcely apply when it comes to presidential foreign policy power. These assertions are patently false: Congress possesses not only the power to declare war, but to act legislatively in limited military circumstances that require less than a formal declaration (a power reflected in part through Congress's constitutional power to issue "Letters of Marque and Reprisal").

Yoo cites as evidence the "over 100 times" in American history when the U.S. used force abroad without a war declaration, but fails to note that nearly all of those instances -- especially early in the country's history -- occurred with congressional statutory authorization. Congress was given, and exercised, power not only over perfect or general war through the declare war power, but imperfect or limited war. And the Supreme Court adjudicated on the war power as early as 1800, and often enough since to dispel any notion that war powers are beyond their ken.

Even though Yoo's constitutional "Originalist" view of the presidency is a flight of fancy, it is equally true that there has been a seismic shift in the actual balance of power between president and Congress in foreign affairs and military decision-making in the last century, to the benefit of the former, and the detriment of the latter. One may well argue that this is a necessary, and even a good thing -- that America's contemporary internationalist superpower status requires a muscular and nimble president able to exercise great discretion abroad, but still subject to congressional checks. That, at least, is a legitimate debate. But it has constitutional moorings only in the sense that the ambiguity of the president's Article II powers opened the door to later executive expansionism. Mostly, the modern presidency reflects political evolution that conforms to a "Living Constitution" view which is abhorred by Yoo and fellow travelers like David Rivkin and Lee Casey. Since they cannot abide governmental action not wrapped in the shroud of originalism, they must invent a new originalism to justify their political agenda.

So what about Obama's conflicting statements? As a matter of law, the Obama of 2007 was correct; as a matter of politics, Obama's Libya statement was also right -- not because of its claimed constitutional provenance, but because it reflects how most presidents in recent decades have redefined their powers. We need a more nearly constitutional presidency, but we also cannot, and should not, return to the presidency of 1789. That's precisely why Congress should hold hearings.