Opinio Juris Symposium: The Textualist Case for Congressional Control Over Responses to Military Attacks

by Andrew Kent

One of my major purposes in discussing Professor Ramsey’s treatment of the scope of the president’s power to respond to attacks was to suggest that here, on this topic, his book may not meet its goal of giving dispositive interpretive weight to the written constitutional text as understood by Americans at the time of ratification. To the extent, then, that my initial post savored of “abstract intent-oriented reasoning” rather than textualist originalism, I failed to explain myself clearly enough.

As I said in my earlier post, I find Professor Ramsey’s analysis of the President’s power to respond to attacks too focused on the Declare War Clause. Because he interprets “declare” to mean only that Congress may begin war, responding to already existing warfare against the United States is not a declaration and therefore not a congressional prerogative. His “executive power” default rule means this power must be wholly the President’s. It can be exercised offensively and “without limitation,” Professor Ramsey suggests, unless Congress can pass a restrictive statute by a veto-proof margin.

But, as I suggested before, this analysis downplays other relevant clauses of the Constitution. In reading the Constitution on this issue, my background assumption is that a nation attacked has a full spectrum of possible responses, ranging from doing nothing to using all of its resources to obliterate the enemy’s homeland. Deciding whether and how to respond is a policy question of substantial moment. In the eighteenth century, there were several common ways of responding to attacks and other serious provocations by another country, each of which would be located somewhere between the poles of my spectrum of potential responses. A nation could strike back by issuing licenses to private seamen to attack the aggressor’s shipping. This is the Marque and Reprisal Clause, found in Congress’s Article I. A nation could impose an embargo or other retaliatory commercial sanctions. This is Congress’s Foreign Commerce Clause. A nation could denounce treaties of amity, alliance or commerce previously contracted with the aggressor. This, as I suggested in a recent article, is Congress’s power under the Law of Nations Clause (giving power “to define and punish . . . offences against the law of nations”). A nation could refuse admittance to, or expel once admitted, individual subjects of the aggressor nation. This is Congress’s power over naturalization and, as Necessary and Proper to implementing that, immigration and deportation. A nation could authorize its public warships to seize enemy warships or private shipping. This is Congress’s power to make rules concerning “captures.” If the enemy’s conduct violated international law, Congress could use Article I powers (under the Law of Nations and Inferior Tribunals Clauses) to institute criminal prosecutions against captured enemies.

These are all powers to calibrate and moderate, for policy reasons, the United States’ response to provocations. These powers have both positive and negative components. They authorize responsive measures; but they are also powers to decide not to respond to hostilities by full-scale warfare. These powers are all given to Congress. (With one exception: another common way a nation might retaliate short of warfare – by expelling the aggressor’s diplomats – is pretty clearly a presidential power, either implied from the duty/power to receive foreign ministers or found, though Professor’s Ramsey’s reasoning, in the Vesting Clause.)

Congress’s prerogative to make the policy decisions about how to measure and target the nation’s responses to hostilities is, I believe, clearly found in the Constitution’s text. Under Professor Ramsey’s theory, these cannot then be within the “executive power” of the President. Putting aside that textual theory and relying just on common sense, it is not hard to see why this must be true. These congressional powers would be substantially or wholly vitiated if the President could decide on his own that the proper response to an attack was full-scale offensive warfare. It is not an answer to say that Congress could always limit the President’s discretion by statute and therefore protect its responsive powers. Because he is continually in office (while Congress has lengthy recesses), and is a single and hence fast decision-maker, the President could react faster than Congress to an emerging crisis and outrun Congress’s ability to pass a restrictive statute by a veto-proof margin.

Adding up all of these congressional powers to calibrate hostilities, joining them to the Declare War Clause, and giving them the fulsome scope suggested by the Necessary and Proper Clause, we have, I believe, a nearly complete textual vesting in Congress of the power to decide how to respond to enemy attacks. Several parts of the Constitution – the Commander-in-Chief Clause; the duties to protect implied by President’s oath, the Take Care Clause and the nature of the office; and the fact that the Constitution contemplates Congress but not the President taking recesses – suggest to me that the President has textual authority to repel hostilities launched against the United States. And when the speed of events and a congressional recess mean that Congress cannot be consulted in time, the President’s would have authority to move beyond the strictly defensive and take effective offensive actions designed to preempt further enemy attacks likely to occur in the near future. But the nearly-full spectrum of responsive powers given to Congress, and the fact that the Constitution contemplates the President convening special sessions of Congress, suggest to me that the President has a constitutional duty to convene Congress and take its direction as soon as possible. Until that time, the President has a constitutional duty (Take Care Clause) to protect the nation in a way that preserves as much as possible the constitutional discretion of Congress to decide how to calibrate the nation’s response to attack.

Would President Obama, if he were to take office in 2009, have constitutional authority – independent of any authorizing statute like the post-9/11 AUMF – to attack al Qaeda forces holed up in Pakistan, with or without the consent of the Pakistani government?


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