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Two important lawsuits about occupational licensing and the right to earn a living

More on the legality of war on ISIS

Prof. John Yoo endorses the Obama Administration's argument that it already has authority to make war on ISIS. As Prof. Ilya Somin notes, there are a number of flaws with that argument. One thing I'll add: the AUMF does not authorize the President "to take action to deter and prevent acts of international terrorism against the United States." It just says that the Constitution gives the President that authority. But it does not specify what exactly such authority encompasses. This is a significant difference. If I say that a baker already is capable of making desserts, that does not mean that he has the ability to make a particular pie in a particular way. And if the Constitution does not give the President that authority, then the AUMF certainly can't give it to him. So the AUMF only reiterates (or purports to reiterate) what power the President already enjoys.

Yoo does not claim otherwise: he invokes the AUMF, not as legally binding, but as proof that Congress, at one time, agreed with his broad interpretation of Constitutional power. Still, I think it's too much to say that the phrase  "take action to deter and prevent acts of international terrorism against the United States" includes a constitutional "power...to attack countries and terrorist groups to prevent them from harming the U.S., even if not with an imminent attack." Everyone believes that the President has the power to "take action to deter and prevent acts of international terrorism" at some point. Nobody thinks that he can only act after a bomb explodes. But whether this indefinite "action to deter" also includes the "power...to attack countries" that are not threatening the United States with imminent attack...well, that's a highly dubious proposition.

Does the Constitution give the President power "to attack countries" that are "not [threatening the U.S.] with an imminent attack"? That seems like a very extreme proposition, and requires extreme proof. The Constitution's authors were well versed in the history of the Stuart Monarchy, among whose crimes was waging war without Parliamentary approval. That crime was one of the leading reasons for the English Civil War and the later Glorious Revolution, two events that laid the intellectual framework for the American Revolution. The idea that the American founders meant to restore the British Monarchy in the form of the American President is simply laughable. And the idea that the AUMF's reference to "action to deter and prevent attacks" includes absolutely limitless Presidential authority is plainly contrary to every principle of American constitutionalism.

Such a notion was expressly rejected by, among others, James Wilson. Wilson (signer of both the Declaration and the Constitution, and second only to James Madison as the Convention's most important delegate) distinguished the American presidency from the British monarchy on just this point: "As the law is now received in England, the king has the sole prerogative of making war. On this very interesting power, the constitution of the United States renews the principles of government, knnown in England before the conquest [of 1066]." In other words, the Constitution denies the President the "sole prerogative of making war."

At the time Wilson was writing, it was generally believed that the more expansive understanding of British monarchical power had begun only after the Norman Conquest. This theory, today called Whig History, is largely rejected today, but Wilson believed it. He believed that "the chief difference between the Anglo-Saxon and the Anglo-Norman government" was that in the former, the power to make war had been considered legislative, while "in the latter, it was transferred to the soveriegn." Thus there was "a pleasure in reflecting on" the fact that the American Constitution was a "renovation[] of the ancient constitution of England.... [O]ur national government is recommended by the antiquity, as well as by the excellence, of some of its leading principles." 2 Collected Works of James Wilson 871 (K. Hall & M. Hall, eds. 2007)

Also, the distinction between "making" and "declaring" war, on which Yoo rests much of his argument, is also unpersuasive. Note this exchange at the Constitutional Convention:

Mr. Madison and Mr. Gerry moved to insert "declare," striking out "make" war; leaving the Executive the power to repel sudden attacks.

Mr. Sharman though it stood very well. The Executive shd be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.

Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr. Elsworth. there is a mterial difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.

Mr. Mason was agst. giving the power of war to the Executive because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."

On the motion to insert declare--in place of make, it was agreed to.

Note that while the delegates did replace "make" with "declare," they did so for the opposite reason that Yoo claims: Madison and Gerry's motion was designed to allow the President to repel sudden attacks, and while every delegate who spoke on the question insisted that the President should not be able to start a war on his own, nobody spoke to the contrary in support of a unilateral presidential authority to commence war. There is thus no evidence that the distinction between "making" and "declaring" war was intended (by the Philadelphia delegates) for the purposes assumed by Yoo's argument.

This does not prove that the AUMF doesn't authorize attacking ISIS. In fact, as I've argued, if the President can demonstrate that ISIS is an organization that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11," or that "harbored" those who did, or that it is composed of "persons" who did any of these things, then the AUMF does indeed authorize war on ISIS.

More from Madison here.

The problem is that an ISIS war is not clearly illegal

Reason’s Matt Welch thinks that military action against ISIS is “illegal” and that the Administration’s argument that it is authorized by the 2001 Authorization of Use of Military Force is “B.S.” His reasoning is that the AUMF only authorized action against al Qaeda, and ISIS isn’t al Qaeda, but is actually al Qaeda’s enemy.

This is not correct. The AUMF is not limited to action against al Qaeda; in fact, it does not mention al Qaeda at all. Instead, it authorizes the President to use force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” A few notable points:

1. This is a declaration of war for constitutional purposes. One often hears people claim that Congress has not declared war, or that the Iraq War was “undeclared,” and so forth. But that is not true. The Constitution does not require a declaration of war to use any particular formula of words, and by authorizing the use of military force, the AUMF is a declaration of war as far as the Constitution is concerned.

2. The AUMF is not limited to al Qaeda, but is directed at any “nations, organizations, or persons” who, in the President’s judgment, “planned, authorized, committed, or aided” in the September 11 attacks, or to any person, group, or nation that “harbored” those responsible.

3. This is not an open-ended list. The President is obviously required somehow to “determine” that the “nations, organizations, or persons” in question were in some way, responsible for “planning, authorizing, committing, or aiding” the September 11th attacks. It’s not an open door for war against any terrorist organization. This means that the Obama Administration must show that ISIS or its members “planned, authorized, committed, or aided” in the September 11 attacks, or “harbored” those responsible. If he is unable to do so, then he has no authority under the AUMF to attack ISIS.

I don’t know much about ISIS—I suspect that it is not an “organization” or group of “persons” who “planned, authorized, committed, or aided” in the September 11 attacks or harbored those who did, but it is certainly possible that ISIS contains some of the “persons” responsible. If not, then the AUMF does not authorize attacking ISIS. But the President is in the best position to make that call. (And, of course, even if the AUMF does not authorize this action, that doesn’t mean he can’t attack ISIS; he would still have authority under the Constitution itself to act without congressional approval when necessary in an emergency to prevent harm to the U.S. Of course, he would have to have some reason to believe that there is such an emergency, which seems doubtful to me—but, again, I’m not privy to the President’s daily national security briefing.)

Still, where it cannot be shown that the organization or nation in question was responsible in any way for September 11, the AUMF does not apply. That is why President Bush did not construe the AUMF as authorizing the Iraq War, but instead went to Congress and got a new authorization, specifically allowing action in Iraq.

4. The AUMF contains no specific expiration date. That’s obviously appropriate, since when one enters a war, one shouldn’t draw any arbitrary end-date, but should fight it out till one wins. On the other hand, that indefiniteness is dangerous, since it opens the prospect of an endless series of wars. The problem with the AUMF when it was first written, and with the whole “war on terrorism” throughout its dull existence, is its vagueness—a vagueness borne out of cowardice. Congress was afraid to use the word “war,” just as political leaders of both parties are afraid to acknowledge the true nature (or headquarters) of a war against Islamic fascism. That fear led to the adoption of a vaguely worded resolution that, as the Congressional Research Service recently said, “is unprecedented in American history, with the scope of its reach yet to be determined.” The only solution to that problem is for Congress to take action now, either to specifically approve action against ISIS, or to expressly disapprove it.

The point is, war against ISIS is not clearly illegal, and basing it on the AUMF is not “B.S.” That’s just the problem with vague laws of any sort: nobody knows what they allow or prohibit.

Drunk history tells the story of the death of Captain Cook

Honestly, the best part is how well the guy pronounces Kalani'opu'u.

Audio and paperback editions of Conscience of The Constitution on the way

I'm delighted to report that I've just received word from Cato that the audio book version of The Conscience of The Constitution, as well as a paperback edition, will be coming soon. I will, of course, post word details when they become available.