First, Fisher believes that original understanding of the constitution subordinates the President to Congress in matters of foreign affairs. “In a letter to Jefferson, Madison said that the Constitution ‘supposes, what the History of all Govts demonstrates, that the Ex. Is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl (p. 4).” Having recently fought a war with an imperialist England, the writers of the constitution were radically opposed to British model. In order to separate the power to declare war from the power to execute war, the founders created separate legislative and Executive branches – a radical innovation to the British parliamentary system. Therefore, Fisher construes the original intent of “the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect (p. 7).”
Yoo, on the other hand, believes the implied powers of the President as Commander in Chief actually give him superior footing in international relations. By the time of the framing of the constitution Americans had come to accept the enlightenment philosophers’ understanding of executive prerogative. James Madison’s stated before the Virginia ratifying convention: “The sword is in the hands of the British king; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist (p.89).” John Locke, the principal source of understanding of prerogative and federative power, believed both rightly belonged in the hands of the executive. In Federalist No. 70 we find Hamilton in agreement, “Decision, acitivity, secrecy and dispatch will generally characterize the proceedings of one man in much more eminent degree than the proceedings of any greater number (p. 21). Furthermore – unlike other executive functions – the federative power was not considered bound by legislation. John Locke writes, “foreign affairs are not easily controlled by prior legislation, when the executive acts abroad it is not actually executing the law. Instead, the executive is leading [in a realm] governed only by the law of nature (p. 37 emphasis added).” Opposed to the Article I, Section i grant of Congressional power of only “those legislative powers ‘herein granted,’” the President is granted all the powers of the executive (p. 152). Therefore, the president is not limited in his exercise of his federative power.
A second area of contention is over the proper legal framework of Presidential war powers. Fisher further believes that constitutional law requires the President to procure a declaration of war or a Letter of Marque and Reprisal prior to engaging in any military operation (p. 7). Fisher’s textual analysis includes Jules Lobel’s conclusion that “the marquee and reprisal clause ‘probably was intended to cover all reprisals or uses of force against other nations short of declared war (p. 5).” The founders included this rather innocuous clause in order to ensure that all military action – no matter the size – would be controlled by Congressional authorization. The only exception Fisher makes to this rule is in the case of invasion (p. 3), because he cannot foresee of any other “danger” so “imminent” as to preclude a discussion in Congress (p. 19 & 211).
Yoo believes the President can activate hostilities without explicit authorization from Congress. The founders recognized such declarations as superfluous. Hamilton wrote that “the ceremony of a formal declaration of war has of late fallen into disuse (p. 123).” The prominent contemporary English legal scholar Blackstone wrote that the role of the declaration of war was “fundamentally one of defining legal relationships (p. 61).” Furthermore, the common definition of declare, then as now, supports Yoo’s interpretation. “Samuel Johnson’s English dictionary (perhaps the definitive dictionary at the time of the framing) defined ‘declare’ as ‘to clear, to free from obscurity’; ‘to proclaim’… (p. 145).” A clarification of the legal status between you and does not function as the beginning of an engagement – it is merely making the conflict known to all. Had the framers intended to limit Presidential war-making then they could have included the wording found in Article II, Section ii of the constitution which lays down the framework for approving executive treaties, e.g. “the President ‘shall have Power, by and with the advice and consent of Congress, to engage in War (p. 153 emphasis added).” The conspicuous absence of such wording, suggests that the Framers did not intend to a specific legal framework for going to war. “Rather,” writes Yoo, “in foreign affairs the constitution gave birth to a dynamic process in which each branch was given certain powers [to be used] to shape foreign policy (p. 17).”
Finally, Fisher and Yoo differ somewhat in their approach to treaty making. Fisher quotes Hamilton in Federalist No. 75: “the act of making treaties ‘will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them (p. 5).” For Fisher, treaty-making is best controlled by Congress. When the President acts in pursuance of international law, without Congressional authorization, she is exceeding her constitutional authority. Clinton’s actions in Kosovo were not justified under Fisher’s framework (p. 185 – 187).
Yoo, on the other hand, believes treaty making to be a federative power that is overall best handled by the unitary executive (p. 38). Commercial treaties, under this framework, present a special exception in that they require much more legislative involvement (p. 40). According to Yoo the nature of the Senate supports this assertion, because it was not a wholly legislative institution, but in fact an executive/legislative hybrid (p. 24). Thus, for Yoo, Clinton’s interventions in Kosovo were a legitimate exercise of his Executive powers. Though, as with Fisher, Yoo does not hold that the President should be required to go to war as a result of international law, his reasoning differs a great deal.
Yoo is correct in asserting that institutional flexibility is necessary in dealing with rising globalization. Ironically, he looks for this flexibility in anachronistic models of international law – i.e. John Locke’s international state of nature. Flexibility is necessary so far as it empowers law makers and the executive to enforce international law, which is the essential element in stabilizing the rising global order. Furthermore, this seemingly extra-constitutional law must be binding to be effective. Fisher is correct, insofar, as he agrees with Jackson’s opinion that “The Presidents power is at its lowest ebb’ when he takes measures incompatible with the expressed or implied will of Congress (p. 265).” Essentially, Curtiss-Wright correctly established that “[t]he president might act in internal affairs without congressional authority, but not that [s]he might act contrary to an act of Congress.” Since both Fisher and Yoo agree that treaties are at least in part an act of legislation, then the basic understanding of the relationship between legislative and executive roles should control. Yoo resoundingly fails to create saliency with his constitutional foreign policy framework. Fisher does a slightly better job by requiring the executive to execute Congressional foreign policy directives.
Yoo’s textual analysis, however, trumps Fisher’s. Fisher is forced to awkwardly adopt the extra-constitutional Presidential power to “repel sudden attacks” in order to justify his framework. Without this extra-textual assertion, Fisher’s framework would render the President completely helpless in the face of an actual emergency (Yoo p. 159). This would be exactly the opposite of the Framer’s intentions. When they wrote the constitution, they set up a government specifically in order to deal with attacks – such as Shay’s rebellion – which threatened to throw the nation into disarray.
To a large degree the opinions in Hamdi vs. Rumsfeld support Fisher’s view of the proper structuring of US foreign policy. The plurality says that “detention of individuals falling into the category we’re considering is so fundamental and accepted… as to be an exercise of the ‘necessary and appropriate force’ authorized by the AUMF (p. 518)” The plurality shows some deference towards the implied powers of the executive branch – point Yoo – but by not directly addressing the question of Presidential power in the absence of Congressional authority, the plurality tacitly accepts Fisher’s understanding of Presidential war power only in cases of Congressional authorization. Secondly, all the justices, with the exception of Thomas, agree that the President does need Congressional authorization to indefinitely detain citizens. The inquiry naturally devolves, then, to whether the AUMF was properly authorized the suspension of habeas corpus rights. In response, even the somewhat conciliatory plurality concludes that the implied power of the executive does not provide sufficient legal ground for “perpetual detention” of Hamdi (p. 521). “We have long since made it clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens (p. 537).” This undermines somewhat Yoo’s assertion that the executive can use force without the authorization of Congress.
Finally, while Yoo would most likely disagree with the pluralities decision and side with Thomas, his philosophy is somewhat vindicated by the courts attempt to structure a dynamic tribunal policy somewhere between the competing interests of Congress and the Executive branch. Likewise, Scalia supports Yoo’s assertion that when in challenged the institutional framework is best upheld by Congress exercising its own institutional powers – rather than relying on quasi-legislative court decisions – to check against executive power (p. 577).