A Stitch in Haste

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
--Article I, Section 1

The executive Power shall be vested in a President of the United States of America.
--Article II, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
--Article III, Section 1

Article II, Section 1 ... contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I.
--Memorandum for William J. Haynes II (a/k/a the "Torture Memo")

It has long been noted by the sanity-based legal community that John Yoo's "unitary executive" theory of Article II's war power is facially absurd for the simple reason that there are clear references to the military in the enumerated legislative powers of Article I, Section 8. Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

In John Yoo's now-declassified "torture memo," he asserts the following:

In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy. (Page 5)

Really? Consider the following hypotheticals in a pre- or non-9/11 scenario:

1. Congress, as part of a routine defense appropriation, authorizes the funding, commissioning and deployment of a fleet of naval destroyers for the specific and sole purpose of patrolling the Gulf of Mexico to protect U.S. oil rigs in that region. The legislation is unambiguous: the Navy ships are only for the Gulf of Mexico and only there to defend oil platforms. Can the president, under a purported "unitary and plenary" commander-in-chief power, order those destroyers to be redeployed to drug interdiction without a revised Congressional authorization? How would that not be an incursion upon Congress' "unitary" appropriation origination function?

2. Could the president then constitutionally defy an explicit bill (assume a veto and override) reiterating the original legislation after the redeployment? How would that not be an incursion upon Congress' "unitary" veto override function?

3. Now assume that a non-nation-state Islamic fundamentalist terrorist organization, in a coordinated attack, destroys the Golden Gate and George Washington Bridges. Could the president, without Congressional authorization, permanently redeploy those destroyers to New York and San Francisco, despite the original, unambiguous dictate by Congress that the destroyers not leave the Gulf of Mexico? (Ignore temporary redeployments under the War Powers Act.)

4. The nation subsequently learns that the Islamic terrorist organization operates mainly from bases in Hypothestan. Subsequent to either a traditional declaration of war or some analogue to the AUMF, President Sally Kern deploys ground forces to Hypothestan to fight the Islamic terrorists -- and gays (who are, recall, a greater threat to America than Islamic terrorists). Congress did not authorize the use of military force against gays, and indeed expressly forbids it in subsequent legislation comparable to Hypothetical #2. Can Commander-in-Chief Kern disregard the "incursion" of Congress upon her "unitary and plenary" commander-in-chief power under Article II, to "keep America safe"?

To the extent that these hypotheticals are absurd, they are nevertheless robust given how absurd the original thesis of the unitary executive crowd itself is. These people actually believe that the president is, or ought be, a literal dictator in a time of war -- disregarding the pesky fact that the War on Terror will last perhaps forever.

Whatever those three "Section 1" pronouncements about "powers" were intended to mean -- it surely wasn't that.