02 Aug Opinio Juris Symposium: The Textualist Case for Congressional Control Over Responses to Military Attacks
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?
As I understand Professor Ramsey’s schema, I would have thought he might agree with me, but for somewhat different reasons. In the eighteenth century, as now, there was little or no customary international law requiring extradition of persons who had committed a criminal offense against a foreign nation. Certainly Pakistan’s mere failure to capture and extradite al Qaeda would not violate the eighteenth century law of nations. For Professor Ramsey, this cuts against finding independent presidential authority to use force. If we posit that Pakistan-based al Qaeda was actively plotting attacks against the United States, but failed so far to attack, Pakistan’s failure to do anything does not create a state of war as against the United States under the eighteenth century law of nations. As I understand Professor Ramsey’s views, absent a legal state of war created by Pakistan, the President lacks constitutional authority to initiate a use of force. I don’t want to pretend that it is clear what conduct would create a “state of war” under the eighteenth century law of nations. Indeed, I think a weakness of Professor Ramsey’s approach is that the line separating severe provocations and hostilities from an actual “state of war” under the eighteenth century law of nations is often quite fuzzy.
Professor Ramsey and I also disagree about the amount and quality of the evidence from the Washington and Adams administrations about the Founders’ understanding of the President’s constitutional power to respond to attacks. According to Professor Ramsey, “The issue was not squarely presented under Washington. Aside from Indian tribes, there were no attacks on the U.S. With respect to Indian hostilities, on the southeastern frontier there were some isolated raids but Washington did not treat any of these as actually creating a state of war with the U.S., and did not respond in force.”
In my view, there were more than isolated raids; there was a formal declaration of war against the United States as well as attacks in support of that declaration. American territory was invaded by hostile forces; American civilians were killed; governors wrote frantic letters asking for a federal offensive. According to Professor Ramsey’s schema, this state of affairs should have triggered the President’s full constitutional powers to respond “without limitation” against the aggressors.
We know quite a bit about how the Washington administration viewed the constitutional status of these hostilities. Each member of the cabinet – Washington, Secretary of State Thomas Jefferson, Secretary of War Henry Knox, Secretary of Treasury Alexander Hamilton, as well as Attorney General Edmund Randolph – is on record rejecting Professor Ramsey’s constitutional analysis. Let me quote some administration documents, because I think they more or less speak for themselves. The relevant participants whose names might not be immediately recognizable are William Blount, Governor of the Territory South of the Ohio River; William Moultrie, Governor of South Carolina; and Henry Lee, Governor of Virginia.
• Knox to Lee (Oct. 1792): “I have this day received a letter by express from Governor Blount. . . . He states, that the five Lower towns on the Tennessee . . .have formally declared war upon the United States, and that the warriors had set out upon some expedition against the frontiers . . . . The nearness of the time at which Congress is to meet, who only are invested with the powers of war, will render it essential to wait the result of their deliberations, before offensive measures can be directed, supposing the information transmitted by Governor Blount to be authentic.”
• Knox to Blount (Oct. 1792): “It is with infinite regret I have perused your letter . . . containing information of the declaration of War by the five lower Cherokee Towns against the United States . . . . As you have ample powers to call forth such portions of the Militia of your Government for its defensive protection as you shall judge occasions to require no further steps can be taken at this moment. The Congress which possesses the powers of declaring War will assemble on the 5th of next month – Until their judgments shall be made known it seems essential to confine all your operations to defensive measures. . . . ”
• Knox to Blount (Nov. 1792): “Whatever may be [President Washington’s] impression relatively to the proper steps to be adopted, he does not conceive himself authorized to direct offensive operations against the Chickamaggas. If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the powers of War.”
• Knox to Blount (May 1793): “You have been fully informed of the difficulties which have existed to prevent the President of the United States from giving orders, in consequence of your representations, for the most vigorous offensive operations against the hostile Indians. If those difficulties existed while Congress were in session, and which it was conceived they alone were competent to remove, they recur, in the present case, with still greater force: for all the information received at the time Congress were in session, were laid before both Houses; but no order was taken thereon, nor any authority given to the President of the United States; of consequence, his authority remains in the same situation it did on commencement of the last session. It is indeed a serious question, to plunge the nation into war with the Southern tribes of Indians, supported as it is said they would be. But, if that war actually exists, if depredations are repeated and continued upon the frontier inhabitants, the measure of protection is indispensable; but that protection can only be of the defensive sort. If other, or more extensive measures shall be necessary, they must, probably, result from the authority expressly given for the purpose by Congress.”)
• Opinion of President’s Washington Cabinet (Aug. 1793): “At a meeting of the Heads of departments & Attorney General at the President’s on the 31st day of Aug. 1793. . . .A Letter from the Governor of Georgia of the 13 instant covering the proceedings of a Council of War relatively to an expedition against certain towns of the Creek Nation was communicated for consideration. It is the opinion that the Governor of Georgia be informed that the President disapproves the measure as unauthorized by law as contrary to the present state of affairs and to the instructions heretofore given and expects that it will not be proceeded in, that requiring the previous consideration of Congress it will be submitted to them at their ensuring session, if circumstances shall not then render it unnecessary or improper. . . .”
• Washington to Moultrie (Aug. 1793): “Having conceived an opinion highly favourable to General Pickens, I invited him to repair to this City in order that I might obtain from him such facts & information as would be essential to an offensive Expedition against the refractory part of the Creek nation, whenever Congress should decide that measure to be proper & necessary. The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
I think it is possible to take constitutional meaning from the Quasi War with France during the Adams administration if we look beyond generalizations to the actual details of the events. Professor Ramsey writes in a post for this symposium that “The issue [of the President’s constitutional authority to respond to an enemy attack] also did not come up under Adams: the French seized U.S. merchant ships (supposedly for violations of rules of neutrality) in the run-up to the Quasi-War, but France did not attack the U.S. or U.S. forces. The (limited) war did not start until Congress approved it. This says nothing about Adams’ power had France attacked the U.S.” Professor Ramsey apparently holds that only an attack on U.S. soil or U.S. forces created, under the eighteenth century law of nations, a “state of war” and hence invoked the President’s constitutional power to respond without limitation. For this reason, he can describe the Quasi War as one in which there was no relevant enemy attack which created a state of war. And he can posit a clear point at which “war” began by U.S. congressional action.
But Professor Ramsey’s analysis depends on clear dichotomies that did not exist either in fact or in law at the time. As one reads the Annals of Congress, press reports and relevant Executive documents from 1797 and 1798, we see a series of increasingly intolerable French provocations and hostilities, and we see much disagreement about whether French actions had or had not created an actual, if not formally declared, state of war. There were many points at which an Executive branch looking for an opportunity to attack France could have plausibly claimed that French actions amounted to war. Instead, the Adams administration cautiously tried to preserve peace and allowed Congress to decide whether and when to increase the hostility and severity of U.S. responses. In total, I see pretty clear constitutional meaning in this episode. We do not have Executive documents of the explicitness of those from the Washington administrations, but President Adams’ cautious actions and cautious rhetoric, always noting his deference to Congress’s wishes, do constitute, I think, a meaningful interpretation of the Constitution. Constitutional analysis in Congress was much more explicit and, I believe, contradicts Professor Ramsey’s take on this episode.
Since the wars of the French Revolution began, the French (and other belligerents) had been seizing American commerce with their adversaries under various legal pretexts, some defensible and some clearly indefensible. As a result of the United States’s partial reconciliation with Great Britain through the Jay Treaty, French stepped up the quantity and outrageousness of its seizures of American merchant vessels in 1796 and 1797. Many hundreds of ships were taken. American sailors were sometimes killed or wounded. A plausible case could be made under the law of nations that these actions constituted war on the United States; the counter-arguments are probably stronger, but I don’t see this as a clear-cut issue.
In May 1797, Adams reported to Congress that an American minister to France had been insulted, threatened with arrest, and expelled. Adams did not use this as a pretext to respond hostilely; he instead announced he was sending a team of three special envoys. In July 1797, Congress authorized the President to use naval vessels “to defend the sea coast, and to repel and hostility to their [United States’] vessels and commerce, within their [United States’] jurisdiction.” Seizures continued. Some members of Congress thought they were sufficiently numerous and illegal that France had started a war; others disagreed. All thought that Congress had the authority to determine the U.S. response.
In February 1798 Adams reported to Congress that French privateers had entered Charleston harbor and attacked shipping there, burning one British vessel. Did this gross violation of American territorial sovereignty begin a war? Not in isolation, but in the context of all the other provocations, the question is closer. In March 1798, Adams told Congress that dispatches from his envoys showed no hope of a diplomatic solution. Soon thereafter, at the request of Congress, he published certain dispatches showing that the U.S. envoys had been grossly mistreated by France. Among other things, agents of the French minister of foreign affairs had demanded bribes and a huge “loan” as a precondition to beginning negotiations. Seizures of American ships continued, as well as violations of American territorial waters. Despite what Professor Ramsey implicitly suggests, I do not think it is at all clear that a “state of war” did not yet exist under the law of nations. Yet Congress and the Executive still agreed that Congress should chart the U.S. course.
In April and May 1798, Congress authorized the President to build and deploy defensively more naval vessels. Also in May, Congress authorized the President to order U.S. armed vessels to seize any French vessels which had illegally seized a U.S. vessel within U.S. territorial jurisdiction, or were “hovering” along the U.S. coasts. Under Professor Ramsey’s analysis, at least the first part of this statute should have been viewed as utterly unnecessary under the Constitution. In June 1798, Congress stopped commercial intercourse with France by U.S. persons or vessels and barred all French vessels from U.S. ports and waters. Also in June, Congress authorized the President to increase the armaments of U.S. revenue cutters “for purposes of defence, near the sea coasts” and authorized U.S. merchant vessels to arm and resist French attempts to search them, and capture any French ships which molested them. This second statute was a big deal under the eighteenth century law of nations, and could well have been said by an aggressive American Executive to constitute an implicit declaration of war, allowing him free rein to attack France. President Adams did not do that. Nor did he claim that any of the statutes were either constitutionally unnecessary or infringements on his constitutional powers. In July 1798, Congress denounced U.S. treaties with France, giving the President another opportunity. Also in July, Congress authorized the President to order U.S. naval vessels to seize any French naval vessels, and to license private armed vessels to do the same. If war had not yet begun, it certainly did by means of this last statute. But it is not at all clear that a “state of war” did not exist earlier.
The situation deteriorated throughout 1798 and 1799. With the exception of the naval order I discussed in my initial post, I am not aware of President Adams violating restrictive statutes or doing anything in excess of authority granted him by statute. He undoubtedly thought that his actions best served the national interest. But I have a hard time imagining that he did not also think that the Constitution required the caution and deference to Congress which he displayed. I tried to set out above the textual basis for that caution and deference.
Let me say in closing what I suggested at the outset of my initial post: I think Professor Ramsey’s book is an enormously valuable and impressive piece of work. I agree with large swaths of it; even where I disagree, I think Professor Ramsey’s arguments are careful, fair, and exceedingly thought-provoking. I will keep The Constitution’s Text close at hand for years to come as I continue to explore and write about constitutional foreign affairs law.