Declaring War and Executive Power

by Seth Weinberger

In the run-up to the invasion of Iraq, I published an op-ed in the Detroit News (8/28/02; the page is no longer available on the paper’s web site, but if you want to see it, email me and I’ll send it to you) arguing that the president did not need Congressional authorization to deploy troops for the invasion. My claim was that over time, as a result of precedent and Supreme Court rulings, Congress had effectively ceded the power to command troops to the president. However, Congressial war powers are still very important, and take two distinct forms. One is the power of the purse: If Congress is truly opposed to the use of force, they can cut off funding. Second, a formal declaration of war is essential if the president wants to mobilize or use the domestic arena in pursuit of the military objective. For example, during the Korean War, President Truman wanted to seize a steel mill that had been shut down by a strike, arguing that it was a critical part of the war effort. The Supreme Court, in Youngstown Sheet & Tube Co. v. Sawyer (United States Supreme Court, 1952), declared the seizure unconstitutional, as it was an executive order that infringed on an individual’s status, and therefore was legislative in nature. In his opinion for the court, Justice Black wrote that although the President is Commander-in-Chief, this role does not carry over into the domestic arena, but applies only to the actual prosecution of the hostilities. Therefore, if the president, in the course of prosecuting a conflict, needs to seize an industry, establish rationing patterns or special production schedules, or suspend the writ of habeas corpus, he must have a declaration of war from Congress. I concluded the piece by arguing that while the president could invade Iraq without a declaration of war, he might not want to, as the very nature of the war made it likely that he would in fact want to operate in the domestic arena.

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that “all of the resources of the country are hereby pledged by the Congress of the United States.” This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president’s authorization of domestic spying is legal. And legal or not, it is certainly troubling. Especially in a war that has few metrics for victory (and I refer here to the war on terror, not the war in Iraq), it seems imperative that the president’s power to do things like this be controlled by Congress.

http://opiniojuris.org/2005/12/16/declaring-war-and-executive-power/

One Response

  1. Hmmm. Your post has “high crimes and misdemeanors” (metaphorically) spelled all over it. I suppose the same idea is in the back of the President’s mind every time he repeats what they told him in one of those internal memos: that he’d be acting within his “constitutional responsibilities and authorities” when giving the green light to unwarranted eavesdropping on US citizens.

    Can’t wait to read how the “renegade lawyers” (as Philippe Sands calls them) defend this new violation of basic freedoms.

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