September 28, 2005

Peter Irons' War Powers: How the Imperial Presidency Hijacked the Constitution

On September 22, 2005, the Arthur Garfield Hays Civil Liberties Program welcomed Silver Gavel Award-winning author Peter Irons to the Law School for a special discussion of his latest book, War Powers: How the Imperial Presidency Hijacked the Constitution. Hays program codirectors Norman Dorsen and Sylvia Law ’68 personally hosted the exclusive New York stop on Irons’ book tour, affording the author a casual setting in which to explain how the United States Constitution has been twisted or disregarded to foster presidential military endeavors, and opening the door to future debates on this controversial topic.

Professor Law introduced Irons by recounting their shared history as undergraduates at Antioch College in the 1960s. Though the two have maintained their strong friendship throughout the years, Law noted that the true reason for Irons’ invitation to the Law School was his unstinting contribution to defending civil liberties, most often through the accessibility of his written work. “The thing that’s wonderful about it,” Law said regarding Irons’ writing, “is that it takes cases that you know and tells you what the political and personal story was behind each.”

Professor Norman Dorsen, left, with War Powers author Peter Irons

Irons began the discussion by explaining the foundation upon which War Powers is based by stating, “Presidents over the past 60 years or so have, without exception—Democrats and Republicans alike—violated the constitutional command that only Congress has the power to declare war.” That only Congress has such authority has been undisputed fact for centuries but, as Irons explained, the U.S.’s checkered recent past of overlooking this provision had never before been presented to the public “in a context that was accessible and readable.” To do so was Irons’ motivation behind writing his book.

Irons admitted that he was not surprised to receive “mixed reviews” and critical opposition to his book. What did amaze him, however, was that he was censured for an alleged failure to address any opposing arguments when stating his case. While writing the book, Irons explained that he was unaware that there were any opposing views of which to speak. Scholars that had previously written on the topic agreed with Irons, “or rather,” Irons said pointedly, “I agreed with them.”

In the weeks before his visit to the Law School, however, such a book came to Irons’ attention. John Yoo, professor of law at the Boalt Hall School of Law at the University of California, Berkeley published The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 in early October. In it, Yoo argues for unrestricted executive power, and suggests that Congress should have no role in the formulation of foreign policy or in the declaration of war.

Citing the same excerpts from debates during the Constitutional Convention as Irons did in War Powers, Yoo draws opposite conclusions—that the writers of the Constitution unanimously agreed the president’s power should include the authority to unilaterally declare war. Both Irons and Yoo refer to the same section of James Madison’s notes that describe delegates who were “afraid the executive powers might extend to peace and war, which would render the executive a monarchy of the worst kind.” While Irons regarded this as proof the framers intended the legislative branch to hold the power to declare war, Yoo interpreted it to mean that “the framers seemed to agree that vesting the president with all executive powers would include the power over war and peace.”

Irons explained that he initially saw this as a gross misinterpretation that warranted little rebuttal.  He described the “dangerous” nature of Yoo’s assertions which would render irrelevant the ongoing public and scholarly debates over whether Presidential authorization for use of force during Desert Storm, and in Afghanistan and Iraq, suffice to meet constitutional standards. Yoo’s theory leaves the executive’s powers of war virtually unchecked, making that authority strikingly similar to the monarchy that the Convention’s delegates initially feared. 

Irons concluded his discussion by insisting that before Yoo’s assertions are validated, a larger debate on the subject would be necessary. Just as War Powers successfully delivers a history of Constitutional disregard to its readers, Irons hopes the mid-November debate that he has scheduled with Professor Yoo will help to move this controversial discussion into the public eye.

–Jeremy Coleman

Founded in 1958, the Arthur Garfield Hays Civil Liberties Program at New York University School of Law is the premier training program of lawyers for professional service on behalf of the public interest. Hays Fellows have engaged in research on civil liberties issues, participated in litigation in cooperation with the American Civil Liberties Union and have undertaken legislative work on topical constitutional issues. Along with Professors Norman Dorsen and Sylvia Law, the Hays program is codirected by Professors Michael Wishnie and Helen Hershkoff.