Who is John K. Bush?

by Carrie Severino

John K. Bush is President Trump’s nominee to the U.S. Court of Appeals for the Sixth Circuit from Kentucky.

Age: 53 (approximate)

Current Position: Partner, Bingham Greenbaum Doll, LLP (Louisville, KY)


  • B.A., Vanderbilt University (1986), summa cum laude, Phi Beta Kappa
  • J.D., Harvard Law School (1989), cum laude; Ames Moot Court Finalist; Executive Editor, Harvard Journal of Law and Public Policy

Judicial Clerkships: Judge J. Smith Henley of the U.S. Court of Appeals for the Eighth Circuit (1989-1990)


  • 1990-1996: Associate, Gibson, Dunn & Crutcher LLP (Washington, D.C.)
  • 1996-2012: Member, Greenbaum, Doll & McDonald, PLLC (Louisville, KY)
  • 2012-present: Partner, Bingham Greenbaum Doll, LLP (Louisville, KY)

Notable matters

  • Mr. Bush’s practice has focused on complex litigation, including antitrust, securities, financial institutions, insurance, intellectual property and product liability disputes.  He has represented parties in successfully challenging the constitutionality of punitive damages awards.    
  • Mr. Bush was one of former President Reagan’s attorneys during the Iran-Contra investigations. 
  • From 2012-2015, Mr. Bush served on the Advisory Committee on Rules for the U.S. Court of Appeals for the Sixth Circuit.

Awards:  The Best Lawyers in America (Louisville Litigation – Antitrust “Lawyer of the Year,” 2017); The Best Lawyers in America (Louisville Appellate “Lawyer of the Year,” 2017); listed in The Best Lawyers in America in the fields of Appellate Practice, Commercial Litigation; Litigation-Antitrust, Litigation-Banking and Finance, and Litigation-Intellectual Property (2007-2017), Benchmark Litigation, “Future Star” (2016, 2017); recognized as a Kentucky Super Lawyer (2007-2017).

Biographical Notes:  Mr. Bush is married and has children.

Who is Amy Coney Barrett?

by Carrie Severino

Amy Coney Barrett is President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit from Indiana.

Age:  45 (approximate)

Current Position:  Professor of Law, and Diane and M.O. Miller II Research Chair in Law, Notre Dame Law School (South Bend, IN)


  • B.A., Rhodes College (1994), magna cum laude; Phi Beta Kappa, Most Outstanding English Major; Most Outstanding Senior Thesis
  • J.D., Notre Dame Law School (1997); summa cum laude; recipient, Hoynes Prize (awarded to the graduate with the best record in scholarship, deportment, and achievement); Dean’s Award (best exam in Administrative Law, Civil Procedure I and II, Constitutional Law, Contracts, Criminal Procedure, Evidence, First Amendment, Torts II, and Legal Research and Writing); Executive Editor, Notre Dame Law Review; Kiley Fellow (full tuition fellowship)

Judicial Clerkships:

  • Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit (1997-1998)
  • Associate Justice Antonin Scalia of the U.S. Supreme Court (1998-1999)


  • 1999-2000:  Associate, Miller Cassidy, Larroca & Lewin (merged with Baker Botts in 2000) (Washington, D.C.)
  • 2000-2001:  Associate, Baker Botts LLP (Washington, D.C.)
  • 2001-2002:  John M. Olin Fellow in Law, Adjunct Faculty, George Washington University Law School (Washington, D.C.)
  • 2002-present:  Assistant Professor of Law, Associate Professor of Law, Professor of Law, and Diane and M.O. Miller II Research Chair in Law, Notre Dame Law School (South Bend, IN)

Notable matters

  • Ms. Barrett teaches and researches in the areas of federal courts, constitutional law, and statutory interpretation.  Her scholarship in these fields has been published in leading journals, including the Columbia Law Review, Virginia Law Review, and Texas Law Review.  Her recent publications include Congressional Insiders and Outsiders, U. Chi. L. Rev. (forthcoming 2017), Originalism and Stare Decisis, 92 Notre Dame Law Review (forthcoming 2017) and Congressional Originalism, 19 U. Penn J. of Const. Law (2017). 
  • From 2010-2016, she served by appointment of the Chief Justice on the Advisory Committee for the Federal Rules of Appellate Procedure. 

Awards:  Distinguished Professor of the Year (2006, 2016)

Who is Justice David Stras?

by Carrie Severino

David Stras is President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit from Minnesota.

Age: 44 (approximate)

Current Position: Associate Justice, Minnesota Supreme Court (St. Paul, MN)


  • B.A., University of Kansas (1995), highest distinction
  • M.B.A., University of Kansas (1999)
  • J.D., University of Kansas School of Law (1999), Order of the Coif, Editor-In-Chief, Kansas Law Review Criminal Procedure Edition

Judicial Clerkships:

  • Judge Melvin Brunetti of the U.S. Court of Appeals of the Ninth Circuit (1999-2000)
  • Judge J. Michael Luttig of the U.S. Court of Appeals of the Fourth Circuit (2000-2001)
  • Associate Justice Clarence Thomas of the United States Supreme (2002-2003)


  • 2001-2002:  Associate, Sidley Austin Brown & Wood LLP (Washington, D.C.)
  • 2004-2010:  Associate Professor of Law, University of Minnesota Law School; Co-director, Institute for Law and Politics; Associate Professor of Political Science, University of Minnesota (Minneapolis, MN)
  • 2010-present:  Associate Justice, Minnesota Supreme Court (initially appointed by Gov. Pawlenty, later elected to a six-year term in 2012) 

Notable Matters:  

  • As a law professor, Justice Stras taught and wrote in the areas of federal courts and jurisdiction, constitutional law, criminal law, and law and politics. 
  • Stras’ law review articles have appeared in many academic journals, including the Cornell Law Review, Texas Law Review, Georgetown Law Journal, Northwestern Law Review, Constitutional Commentary, and the Minnesota Law Review.
  • While he was a on the faculty at the University of Minnesota Law School, Justice Stras was also a Counsel in the Appellate Advocacy Group at Faegre & Bensen, LLP in Minneapolis.

Awards: Stanley V. Kinyon Tenure Track Teacher of the Year, University of Minnesota Law School (2006).

Biographical Notes:  Justice Stras is married and has two children.  Through his father, he is related to Holocaust survivors from Hungary and Germany.  Justice Stras is believed to be the first Jewish justice to sit on the Minnesota Supreme Court.

Who is Justice Joan Larsen?

by Carrie Severino

Joan Larsen is President Trump’s nominee to the U.S. Court of Appeals for the Sixth Circuit from Michigan.

Age: 48

Current Position: Justice on the Michigan Supreme Court (Lansing, MI)


  • B.S., University of Northern Iowa (1990)
  • J.D., Northwestern University School of Law (1993); magna cum laude (first in class); Recipient, John Paul Stevens Award for Academic Excellence; Recipient, Lowden-Wigmore Prize (Best Student Note); Recipient, Raoul Berger Prize (Best Senior Research Paper); Articles Editor, Northwestern University Law Review

Judicial Clerkships:

  • Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit (1993-1994)
  • Associate Justice Antonin Scalia of the United States Supreme Court (1994-1995)


  • 1995-1997:  Sidley & Austin LLP
  • 1997-1998:  Visiting Assistant Professor, Northwester University Law School
  • 1998-2002, 2003-2015:  Special Counsel to the Dean and Lecturer in Law, University of Michigan School of Law
  • 2002-2003:  Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel (Washington, D.C.)

Notable Matters:  

  • Justice Larsen was appointed on September 30, 2015 by Governor Rick Snyder to the Michigan Supreme Court and elected to another term in November 2016.  In describing her judicial philosophy on her campaign website, Justice Larsen wrote, “[J]udges should interpret the laws according to what they say, not according to what the judges wish they would say.  Judges are supposed to interpret the laws; they are not supposed to make them.”
  • At the University of Michigan School of Law, Justice Larsen’s research and teaching interests include constitutional law, international law, the judicial system, and separation of powers.  She is a recipient of the L. Hart Wright Award for Excellence in Teaching. 
  • Her academic writings include Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283 (2004), in which she argued against the consideration of international law for substantive constitutional questions.
  • As an attorney in private practice at Sidley & Austin LLP, Justice Larsen was a member of the Constitutional, Criminal and Civil Litigation Section. 

Biographical Notes:  Justice Larsen is married and has two children.

Trump Proposes an Excellent Slate of Appellate Judicial Nominees

by Carrie Severino

As a presidential candidate, Donald Trump committed to “appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.” He made good on that promise only one week after taking office by nominating Neil Gorsuch to the Supreme Court. Now he is taking the next step in carrying out his campaign promise by appointing highly qualified and principled judges to the lower federal courts.

According to Adam Liptak, tomorrow President Trump will be naming five new appellate nominees as well as four district court nominees and one nominee to the Court of Federal Claims. I will follow this post with a series of biographical posts on the appellate nominees, but I’m pleased to report that they are an exceptional slate that carries on the tradition this president began by nominating Justice Gorsuch. I hope that the Senate will move quickly to confirm them. 

Update: Here are links to the bios of the appellate nominees:

This Day in Liberal Judicial Activism—May 6

by Ed Whelan

2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations:

The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”

Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.)

Judge Posner Is Beyond Catty

by Ed Whelan

Every few years or so, it seems, Judge Richard A. Posner hastily copies and pastes his recent meandering pieces into something that has the outward appearance of a book. (I’ve reviewed earlier efforts here and here.)  From a tweet today, I’ve learned of this passage from his forthcoming regurgitation:

A recent article states that [Neil] Gorsuch “confessed to having cried on the ski slopes when the news reached him that [Justice] Scalia had died.” I find that hard to believe, even if one ignores the implausibility of someone’s accosting Gorsuch on the ski slopes to report Scalia’s death. Scalia was a month short of his eightieth birthday when he died, and though the details of his very poor health had not been published he was known to be obese and (despite his age) a heavy smoker, facts that coupled with his age augured a short remaining lifespan.

What a jerk.

For starters, as anyone who paid a modicum of attention to the Gorsuch nomination might recall, Gorsuch himself, in his much-publicized speech in praise of Justice Scalia’s legacy, offered this preface:

A few weeks ago, I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news. I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.

So, as a minute of research would have revealed, Posner didn’t have to attribute the supposedly “hard to believe” claim to a secondary source. Nor would he have had to ponder “the implausibility of someone’s accosting Gorsuch on the ski slopes.” (Does Posner not know that phones work on the ski slopes? How could he not have thought it obvious that someone—Gorsuch’s wife or one of his colleagues or law clerks—would call him immediately with the news?)

Further, in case Posner somehow missed it, Scalia’s sudden death triggered intense mourning across the country. That’s in part because whether or not people cry on the news of someone’s death depends not so much on whether a death is statistically foreseeable but rather on whether they are fond of and admire the deceased and whether the death, even if statistically foreseeable, is sudden.

Posner’s characterization of Scalia as “obese” is also gratuitously nasty. To be sure, that characterization might well be defensible under the Body Mass Index, which results in more than 1/3 of American adults being labeled “obese.” But in common parlance “obese” is reserved for extreme cases.

Posner has volunteered, “I have exactly the same personality as my cat…. Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.” Yes, indeed. Decent human beings aim higher.

This Day in Liberal Judicial Activism—May 5

by Ed Whelan

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.”

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)

This Day in Liberal Judicial Activism—May 4

by Ed Whelan

1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).

Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name.

Keep reading this post . . .

This Day in Liberal Judicial Activism—May 3

by Ed Whelan

1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.

In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”

Here Come the Judges?

by Jonathan H. Adler

As of May 1, there are 129 federal court vacancies, including 20 on the federal appellate courts. 17 more vacancies are pending. This presents Trump with a substantial opportunity.

As of May 1, President Trump had made only one nomination to a lower federal court: Judge Amul Thapar to an open seat on the U.S. Court of Appeals for the Sixth Circuit. The Senate Judiciary Committee held a hearing on Thapar’s nomination last week, and it appears he will be quickly confirmed.

According to David Lat, the Trump Administration is preparing to announce a group of additional nominations to federal appellate courts later this month. Further, as Lat reports here and here, the list of nominees is incredibly promising. Most of the names under discussion are highly qualified individuals who would make principled and effective jurists.

As Lat notes, anyone on a lower court or state court on Trump’s Supreme Court short list is almost a shoo-in for an appellate nomination, provided there’s an applicable vacancy. This would suggest good news for state supreme court justices like Minnesota’s David Stras (Eighth Circuit), Allison Eid (Tenth Circuit), and Texas’ Don Willett.  It also suggests that Michigan’s Joan Larsen is the front runner for the Michigan spot on the U.S. Court of Appeals for the Sixth Circuit created by Judge David McKeague’s announcement that he will take senior status when his replacement is confirmed.

Lat also identifies some other promising potential nominees, such as Notre Dame law Professor Amy Comey Barrett (Seventh Circuit), former Texas Solicitor General James Ho (Fifth Circuit), and former Alabama Solicitor General Kevin Newsom (Eleventh Circuit), as well as some individuals he expects to come under consideration when new vacancies arise (such as West Virginia Solicitor General Elbert Lin (Fourth Circuit) and Idaho attorney Ryan Nelson (Ninth Circuit)).

Lat’s reporting is consistent wth my understanding, though (as he notes) we won’t know what President Trump is going to do until he actually does it. While I might prefer some of the folks Lat mentions to others, the overall list of possible nominees is incredibly encouraging.

One wrinkle: In some cases, the path to confirmation is relatively easy because the relevant states have two GOP Senators. In others, however, the Trump Administration will have to consider whether Democratic Senators will return blue slips on principled conservative nominees. Then again, as Lat reports, “My sources say the Republicans will have no qualms about going nuclear on blue slips if they feel the Democrats are abusing them.” Stay tuned.

This Day in Liberal Judicial Activism—May 1

by Ed Whelan

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.

One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor and Souter dissent.

This Day in Liberal Judicial Activism—April 29

by Ed Whelan

1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

This Day in Liberal Judicial Activism—April 28

by Ed Whelan

2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.

Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”

Only after the cameras are off, in her written responses to post-hearing questions (see point 6 here), will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.

Forthcoming Book of Justice Scalia’s Speeches

by Ed Whelan

I am delighted to pass along news of a wonderful book project that I am undertaking. At the invitation of the Scalia family, Christopher J. Scalia (son of Justice and Mrs. Scalia) and I are compiling and editing Justice Scalia’s best speeches for publication in a single-volume collection.

I knew that Justice Scalia had delivered brilliant speeches on various aspects of the law and the judicial role, and I was also familiar with two of his outstanding speeches on faith and religion. But I have been dazzled to discover the broad range of topics—including even hunting, sports, and opera—that he addressed in hundreds of speeches across the country and around the world, all with his characteristic wit and wisdom. It has been a delight to read through the speeches, and I am honored to have the opportunity to help present them to a general audience.

Chris Scalia and I, with the expert assistance of legendary attorney Bob Barnett, are now in the process of talking with publishers.

[Cross-posted on The Corner]

This Day in Liberal Judicial Activism—April 27

by Ed Whelan

2015—Federal district judge Jon S. Tigar denies the state of California’s request for a stay, pending appeal, of his preliminary injunction ordering the state (supposedly pursuant to the Eight Amendment) to provide prisoner Jeffrey Norsworthy “sex reassignment surgery as promptly as possible.”

Tigar agrees that the state’s appeal raises a serious legal question but he concludes that the state can’t show irreparable injury from denial of the stay. Never mind that, if the mutilation-as-surgery goes forward, the state will never be able to recover the costs of surgery that it incurs. Tigar’s denial of the stay is evidently designed to render the matter moot—what relief could the state obtain post-surgery?—and thus immunize his own ruling from appellate review.

A Ninth Circuit panel will promptly issue an order staying Tigar’s injunction pending appeal. But one day before oral argument on the Ninth Circuit appeal, the state will release Norsworthy on parole.

John Yoo, Alexander Hamilton, and War Powers -- The Evidence of History

by Michael Stokes Paulsen

This is the last in a series of three posts engaging my friend John Yoo’s argument that Trump’s Syria Strike Was Constitutional.  John was responding in part to my National Review essay charging that those missile strikes amounted to Trump’s First Unconstitutional War. 

My prior two posts argued, first, that The Difference Between You and Me on war powers is that my position (that presidents cannot constitutionally initiate military hostilities on their own) is better supported by the Constitution’s text, structure, and historical evidence of original intention and understanding – and that John’s position (that presidents can initiate military hostilities on their own authority, that they have done so many times, and that this arrangement works well) is supported by some, but not all, actual practice and by certain policy arguments. 

The key difference between our views turns on the methodological question of what properly counts in constitutional interpretation.  Mine is a strict “original-meaning-of-the-text” view.  I insulted John by calling him (horror of horrors) a “living constitution” theorist with respect to war powers.  The insult was deliberate but cheerful: John and I are friends with different views. 

In the second post I laid out at length the evidence, taken directly from his own essay, that reveals the nature of John Yoo’s Living Constitution.  In a nutshell: most of John’s argument consists of claims that presidential initiation of hostilities has become the “American way of war,” established by long patterns of modern practice and that this way is superior as a matter of policy to relying on slow, ponderous, politically cowardly Congresses to decide whether or not the U.S. should use military force.  That’s all living-constitutionalist argument, I maintain.  It is not an argument concerning historical original meaning of the text.

But John Yoo does offer some historical argument. I would like to engage that evidence in this last post.  (I will also address the somewhat odd textual argument John makes about the Constitution’s division of war power between the nation and the states.)

John Yoo writes that the “Framers decided that the president would play the leading role in matters of national security.” The phrase “in matters of national security” is the key, subtly ambiguous phrase here. If by this he means that the President alone is charged with the duty and responsibility for the actual conduct of authorized war making – the direction of the use of armed force on behalf of the nation when constitutionally brought into play – I quite agree.  More to the point, I believe the historical evidence supports Yoo on this point.  (All of his evidence is, in fact, directed to that question, not the question of war-initiation, as we shall see in a moment.)  But if by “in matters of national security” he means that the President possesses a unilateral war-initiation power, none of the historical evidence supports Yoo’s position. The choice of phrases operates as rhetorical ketchup covering two quite different items on the plate.  The ambiguity of the phrase bears the entire weight of Yoo’s historical argument.

The era between 1776 and 1787 witnessed American governmental arrangements that featured weak executive authority, including the Articles of Confederation, Yoo writes.  But “when the Framers wrote the Constitution in 1787, they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.”  This is partially true and partially question begging.  The Framers created a far-stronger presidency, to be sure, but that does not answer the question of exactly what powers concerning “national security” (there’s that ambiguous term again) and “foreign affairs” (equally equivocal, in Yoo’s context) the President was given. 

Simply put: the fact that the President was given enlarged executive powers does not tell you how large they are. 

Yoo turns to Alexander Hamilton, the most gifted and insightful expositor of presidential power under the Constitution. To look to Hamilton is to look in the right place.  Yoo rightly quotes Hamilton in support of the broad power of the President, as Commander in Chief, to direct the conduct of war. But that is exactly what this historical evidence supports – not a power to initiate war. 

Yoo quotes these words of Hamilton from Federalist No. 74:  “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”  Yoo then concludes, rightly, that Hamilton’s words support the conclusion that “Presidents should conduct war” (emphasis mine) because they can act with “’decision, activity, secrecy, and dispatch.’” 

I agree.  But conducting a war is one thing and starting a war is another.  Likewise, foreign affairs and foreign relations are, to be sure, part of the President’s “executive power.”  But the power to direct and conduct foreign affairs does not extend to a power to take the nation from a state of peace to a state of war.  Instead, that power was vested in Congress by an explicit delegation. 

Hamilton thought so, too, or at least that appears clearly to be the thrust of his “Pacificus” essays in 1793, written just five years after Federalist No. 74.  Defending President Washington’s authority to issue a proclamation of American neutrality in the latest war between France and England, Hamilton argued for a broad presidential power over foreign affairs, including the interpretation of treaty obligations. The President is “charged with the Execution of the Laws, of which Treaties form a part” and is also charged with “the command and application of the Public Force.” 

The foreign affairs power of the executive is subject to specific textual exceptions, Hamilton noted. One of those is “the right of the Legislature ‘to declare war and grant letters of marque and reprisal.’”  (Emphasis mine.)  That did not control the specific question of power to issue a neutrality proclamation, however.  Hamilton argued that, though it might be true “that the right of the Legislature to declare war includes the right of judging whether the Nation be under obligations to make War or not – it will not follow that” the President may not “preserve Peace till war is declared.”  Congress may have the power to declare war, but that does not mean the President cannot declare neutrality unless and until Congress declares war.

Hamilton concluded in language clearly delineating the distinction between the foreign affairs power of the President and the war-declaring power of Congress: 

While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War – it belongs to the “Executive Power,” to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the U. States with foreign Powers.

In this distribution of powers the wisdom of our constitution is manifested.  It is the province and duty of the Executive to preserve to the Nation the blessings of peace.  The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.

John Yoo thus misreads Hamilton badly if he takes Hamilton’s statements concerning the President’s “executive Power” and Commander-in-Chief Clause power as embracing a power to initiate armed hostilities against another nation or enemy force – in Hamilton’s words, to “transfer the nation from a state of Peace to a state of War.”  Hamilton clearly viewed the latter power as the province of Congress. 

The clearest snippet of history on this point comes from a source John Yoo does not discuss: the records of the debates of the Constitutional Convention in debating the proposed power of Congress “to declare war.”  

James Madison’s copious Notes record that South Carolina’s Charles Pinckney and Pierce Butler advanced essentially Yoo’s position: The legislature would be “too slow” (Pinckney) and the President “will have all the requisite qualities, and will not make war but when the Nation will support it.”  (Butler). 

But this position was rejected by the Convention. Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”  Several other delegates chimed in their agreement.  A few noted the distinction between the power to initiate war and the power to conduct peace negotiations – distinguishing the war power from the general executive foreign affairs power.    

In the course of the debate, James Madison and Gerry famously proposed an amendment “to insert ‘declare,’ striking out ‘make’ war, leaving to the Executive the power to repel sudden attacks.” After some discussion, this motion was adopted.  In addition to the “repel attacks” explanation, Rufus King of Massachusetts noted that “make” war might wrongly be taken as including the power to “conduct” war, which he regarded as properly an executive function.  King’s observation persuaded Connecticut to support the changed wording. Finally, the delegates considered and rejected a proposal to add the words “and peace” to Congress’s power to declare war.   

As my co-author Luke Paulsen and I wrote concerning the lessons of this debate:

Though the Framers’ Philadelphia debates are cryptic and contradictory at times, several points seem clear. First, the provision was understood to vest in Congress, and not in the president, the decision whether the nation should go to war. Second, the change from “make” to “declare” was considered an improvement because it would leave with the president the traditionally understood executive power to defend the nation against attacks, thereby providing for those situations where Congress would be too slow in acting to protect the security of the nation. Third, the change from “make” to “declare” would avoid confusion about who had the power to conduct—to execute—war. That power, all seemed to agree, was the president’s alone, both as a matter of the executive power and as reinforced by the clause empowering the president as “Commander in Chief” of the nation’s armed forces. Fourth, and finally, the power to make or declare peace—the power of diplomacy and the conduct of foreign affairs generally—appears specifically to have been withheld from Congress and left with the president.

Yoo notes one more strand of evidence purportedly on his side. James Madison, defending the proposed Constitution in the Virginia ratifying convention, noted that Congress could check presidential military usurpation with the power of the purse.  But that hardly means that the President rightly has a free hand to use military force.  It only means that Congress possesses effective power to check presidential military adventurism.  A check against feared abuse is not a grant of power to engage in such abuse. 

A final textual / “original intent” argument (and another point on which John Yoo and I disagree sharply) concerns the meaning, and inferences to be drawn from, Article I, Section 10 of the Constitution.  That provision prohibits states from engaging in war “without the Consent of Congress … unless actually invaded, or in such imminent Danger as will not admit of delay.”  

As it stands, I believe this provision powerfully reinforces the conclusion that the Declare War Clause vests the decision to go to war in Congress, not the President.  It tells states that if they wish to engage in war, they should call Congressnot the Commander-in-Chief!  In addition, the exception for situations of invasion or imminent danger parallels, perhaps instructively, the Framers’ decision at Philadelphia to change the word “make” to “declare.”  It is probably sensible to understand the President’s residual executive war power to “repel sudden attacks” as extending to situations of imminent danger as well as actual invasion or attack.  (The text, however, must be conceded to be vague on this score; the intra-textual comparison helps to make sense of the words chosen, but it is not perfect evidence.)

John Yoo draws exactly the wrong inference from Article I, Section 10.  He writes: “If the Framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.”   See?  By not writing a similarly explicit, narrow exception to Congress’s declare-war power, the Framers in fact implicitly granted the President war-initiating power! 

With all due respect, this makes no sense. It takes a federalism provision responding to important geographic realities at the time and transforms its exceptions language into a sub silentio general presidential power – one that contradicts the premise that gave rise to the need for an exception in the first place (that is, the idea that Congress otherwise must consent, because it alone has the power to declare war).

The conclusion from history is clear.  The historical evidence is overwhelmingly against John Yoo’s position. 

* * * * *

I must emphasize again that, although I think John Yoo’s argument is badly wrong on the presidential war-initiation point, I think he is otherwise right on the broad powers of the President as Commander-in-Chief.  (As John once put it to an audience member at a debate we had on these issues, he and I disagree on who gets to start wars but agree on who gets to finish them.) 

It is on those latter issues – of presidential power to conduct legally authorized war – that John took so much completely undeserved heat for his brilliant, fearless, devoted legal work as Deputy Assistant Attorney General during the administration of President George W. Bush.  I regard John Yoo as a national hero for his courage in taking unpopular positions in defense of correct understandings of presidential power in a time of war and great national crisis.  Nothing in my critique of his position on unilateral presidential war-initiation should be taken as criticism of his public service or of the actions of the Bush administration.  While John Yoo advanced the view that President Bush could act unilaterally to employ military force against al Qaeda and other groups and nations acting in concert with al Qaeda, nothing turned on that view: within a week of September 11, 2001, Congress had passed the most sweeping war authorization in our nation’s history.  A year later, it added a specific authorization for the use of force in Iraq.  And even though I would not agree that President Bush lawfully could have employed full offensive force on his own authority, there is certainly a stronger case in those circumstances: Bush would have been responding to an actual attack on the United States.  He would not have been initiating a state of war. 

That’s where Trump’s missile strikes on Syria differ markedly.  They are not covered even by the sweeping 9-18-01 Authorization for Use of Military Force.  They were not a response to an attack on the United States or its armed forces.  It was not a situation of imminent such attack.  It was not the use of military force in a rescue situation.  It was an act of unilateral U.S. military retaliation for Syria’s violation of international law norms and an effort to deter further such actions.  As such, it may be justified morally and strategically.  But not legally: although the missile strikes may not result in a broader war, they were unquestionably acts of war – the initiation of armed hostilities against another nation’s forces.  And that, when done by a President without Congress’s authorization, violates the Constitution. 

Kate O’Beirne, RIP

by Ed Whelan

NRO has posted a symposium of wonderful tributes to the great Kate O’Beirne from so many of her friends and admirers.  I encourage you to print out the entire set and savor it at your leisure.

I’m grateful to have had the opportunity to contribute this submission:

I can do no better than to endorse the many beautiful tributes to the extraordinary Kate O’Beirne that have already been written, including those by Ramesh Ponnuru, April Ponnuru (above), and Mona Charen. But let me offer a few observations.

When I first entered the outer orbit of the National Review world a dozen years ago, Kate had long been a dazzling star whom I had admired from afar. I might well have been daunted to approach her. But Kate instead generously befriended me. I immediately discovered how delightful, intelligent, and down to earth she was. I’m so grateful that my wife and I had many occasions over the years to talk and laugh with Kate (including at the Ethics and Public Policy Center’s 40th-anniversary gala just last year, which she highlighted with lavishly celebratory remarks punctuated by her wry humor). How I wish for one time more.

Some years ago, I took part in an amazing program in Rome — a sort of deeper look at the Vatican — for a group of twelve or so journalists. (I happily endured the label for the sake of the trip.) Kate was one of the leaders of the program. Over the course of a week, we visited the great basilicas of Rome, toured the Scavi and the Sistine Chapel, met with Vatican officials, had every meal together, and attended Mass each day at sites from the crypt of Saint Peter’s to the catacombs. Although Kate had done it all before, her joy and awe were fresh. She combined a humble reverence for that which deserved revering with a withering irreverence for that which didn’t.

More broadly, Kate’s deeply Catholic sensibility infused her life. The “tough broad” pose she sometimes feigned sheltered her gentle heart. She found and shared amusement in the foibles that we imperfect human beings all have, even as she loved others with (and not merely despite) our many faults. She put her ultimate faith not in the things of this world but in those of the next.

May Kate’s soul rest in peace, and may her beloved husband Jim, their two sons she adored, and her extended family be consoled in their grief.

This Day in Liberal Judicial Activism—April 26

by Ed Whelan

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee Supreme Court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee Supreme Court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.