Opinio Juris Symposium: Additional Thoughts on the President’s Military Response Power

by Michael Ramsey

Professor Kent’s additional comments helpfully clarify his textual argument on the power to respond to attacks. I now see (I think) that he is relying on a negative implication: the President must not have this power because it would vitiate important powers of Congress. I do think this is a more promising approach than trying to jam the response power into the declare-war clause (which I think is about launching attacks, not about responding to them). But I still don’t see where, specifically, Congress’ power comes from. Congress does have a broad array of military powers, but none seems easily to encompass the military response power (especially if it’s agreed that the declare-war clause does not). Ordering U.S. forces to counterattack against an aggressor is not regulating the armed forces, or raising armies, or issuing letters of marque, or making rules on captures. And to rely on the necessary-and-proper clause, there needs to be a relevant power of Congress (or of another branch) in the first place.

I would say instead that the President has some powers that can be exercised in response to attack, including diplomatic measures (as Professor Kent agrees) and the use of military force (to the extent of forces available). Congress has other powers, most notably the power to provide additional funds and troops to the President (and the powers Professor Kent describes). These are not conflicting but concurrent.

On the President-Obama-in-Pakistan hypothetical, Professors Ku and Kent are right about how I would approach the question. With Pakistan’s consent, this is an easy case (under the historical understanding), because the deployment does not declare war against Pakistan and the war (if there is such a thing) against al-Qaeda is ongoing. Without Pakistan’s consent, I think the result is a little trickier than they suggest, though. We would need to ask whether making an attack in a foreign state against a non-state entity, but not against the foreign state itself, declared war in eighteenth-century terms. As Professor Kent rightly says, exactly when a state of war began in the eighteenth century was often not clear, and I think this may have been true here. Something similar occurred numerous times in the nineteenth and twentieth centuries when the U.S. sent forces across the Mexican border in pursuit of bandits. The most notable case was General Pershing’s pursuit of the revolutionary leader Pancho Villa after the latter’s forces attacked Columbus, New Mexico in 1916. At the time these incursions were not treated as creating a state of war with Mexico, although Mexico vigorously protested. I’m not sure how this would have been treated in the eighteenth century. (As Professor Ku adds, in my model any presidential action would also need to be consistent with international law).

Finally, on the evidence from Washington’s administration: Professor Kent’s quotes all relate to hostilities on the southwest frontier. But Washington, through Secretary Knox, consistently refused to acknowledge the southern governors’ claims that the southwestern Indians had declared war. He was already fighting an unpopular Indian war in the northwest, and hardly wanted another. Whatever the actual situation on the ground (and it seems that the southern governors were exaggerating), as Washington chose to see it there was no war. As a result, the decision to act remained with Congress, and nothing in these quotes or otherwise addresses the President’s power to respond when war is begun by an enemy.


7 Responses

  1. I was with you for a while there, Mike. But Congress doesn’t have the power to prescribe a military response short of declaring war?!

    Sure it does. For one thing, such a statute would be permissible under the N&P Clause, at the very least to “carry into execution” the President’s responsive power that you describe. What’s more, it’s easily encompassed by the Declare War and Army and Navy Clauses, which authorize “lesser included” powers (e.g., a statute authorizing or requiring something short of complete war, as in the Quasi-War statutes; or a statute requiring that the “raised” Army do certain things). And why wouldn’t it likewise be a rule for the regulation and governance of the land and naval forces?

    More fundamentally, let’s step back for a second, away from the academic parsing of particular clauses of Article I, section 8. It would be an awfully odd thing, wouldn’t it, for any constitutional architects to give Congress all the powers you attribute to it, including the war-declaration power, but not to provide the legislature with the power to order a counterattack. What possible reason would there be for such a gap?

  2. Professor Ramsey,

    I will first admit that I have not yet read your book but do plan to add it to my library. I have been reading these posts with great interest. Thanks to opiniojuris for this symposium.

    On this issue, however, I believe Professor Kent has the better argument. I understand you, Professor Ramsey, to be saying that the president can order any and all military responses, to include attacking on the enemy’s soil to completely subdue and defeat the enemy, in response to any attack on our country. In my humble opinion, that and the arguments in this post are implicitly rejected by The Prize Cases when it comes to imperfect war or a limited attack. And I find the result and reasoning there to be fully supported by the textual/structural argument advanced by Professor Kent. Further, I believe it consistent with the oft-overlooked power given to the states to defend themselves from attack or imminent attack. If we want to know what comprised the Framer’s understanding of national self defense in this and I would argue in other contexts (thereby limiting the concept of preemptive self defense and the imminence requirement), I think Article I, sec. 10, cl. 3 is a good place to start.

    Admittedly, that clause’s language – by using “engage in War” – could support either your or Professor Kent’s conclusions. However, I believe the important question to be whether there are on-going hostilities, an “actual inva[sion]” or “imminent Danger as will not admit of delay” (a very important question today) after a completed attack. If the latter, the President’s power is constrained. Therefore, I am wondering whether you are assuming a condition of on-going hostilities when defining the executive’s powers (it seems you are)…and whether you would interpret them in the same way under a condition of sporadic or singular attacks by a foreign nation or terrorist organization (something for which Professor Kent appears to be accounting).

    Professor Kent seems to at least be arguing that the President’s response authority is proportional to the enemy’s attack or nature of the enemy threat (or perhaps I am now navigating my own middle ground). If the attack represents all out war, the president may respond in any manner he deems appropriate to defend the U.S. until Congress can be consulted – to include some or all forms of offensive force (The Prize Cases support this conclusion). If the attack is in the nature of a limited and/or completed strike, the president’s authority is limited to responding to the attack only – to use international law terms – a proportional countermeasure power that includes the power to use force (reprisal power). (We are obviously discussing this without reference to current international legal norms and treaties.)

    The most important question to me is whether the Constitution permits the president to order a reprisal that does not involve powers granted to Congress in response to a limited and/or completed attack (where Professor Lederman was heading in the previous post but seems still to assume on-going hostilities). Putting aside the international law issue, whether the executive can launch cruise missiles into Afghanistan after some of its residents have attacked us is an interesting question in this debate. Do we read Congress as having the exclusive right of reprisal given their powers over perfect an imperfect forms of war as discussed by Professor Kent or is that power given to the executive in the Vesting Clause. Can we include that in the self defense power as some scholars have tried to do in the international law field? I think not – for the reasons mentioned above. On-going hostilities or imminent continuation of hostilities are required for self defense – though the executive must have some leeway in determining the existence of that condition.

    Textually, structurally, and as a matter of logic and history (to include legal precedent), I personally find Professor Kent’s arguments – as I either understand or have modified them – to more accurately reflect the original meaning. I add that I also think Little v. Barreme is relevant to this post in terms of Congress’s powers controlling, not complimenting, the executive’s.

  3. By the way, I am just beginning my (hopefully scholarly) work in this area. If my arguments are flawed or reflect some erroneous understanding, I would sincerely appreciate it if one of you gentlemen would let me know. I apologize for the typos.

  4. It would be rather interesting to explore how proportionality would enter into (domestic, not international) considerations on legality. I don’t think it really enters into consideration at all.

    Given that in this scenario, we don’t even have time to discuss with Congress what action to take, how are we to discuss the proportionate response? Given the suddenness of such an attack, how are we to judge, given the information the President had at hand, whether his counterattack was reasonably proportional or not?

    It seems to me, a very high bar of unreasonableness would be required to even get the issue on the table.

  5. My thought was that the president’s response authority is tied to the nature of the threat, meaning not only its size and scope but also whether it is on-going, imminent, or not. The argument for presidential authority to defend the nation without congressional authorization is – at its core – an argument of necessity for the executive to act on behalf and in defense of the nation. What is necessary must be so in time and scope. That is how I think proportionality comes into play adn what underlies Professor Kent’s arguments.

    As for whether the proportionality can be determined, we do this sort of thing every day in criminal law. It is admittedly an after-the-fact review. However, I am reasonably certain that similar subjectivity and objectivity tests can be applied – allowing for intelligence informaiton and the ambiguity of the nature of international relations.

    The executive does have a great deal of discretion to determine these things and what actions are necesssary in response. As The Prize Cases conclude, he does have fairly wide latitude until he has time to consult Congress. But he does not have a complete blank check to do whatever he wants for as long as he wants absent congressional authority – as it seems Professor Ramsey is arguing and Professor Kent is countering – with historical examples that Professor Ramsey himself injects with a bit of proportionality and necessity discussion.

    Could the president respond to 9-11 with an attack to prevent further attacks if he believed further attacks are imminent? Yes….for a time…provided he can identify the source of the threat and the attacks are directed at countering it. (If they were not believed imminent, he would basically be conducting a reprisal – which some folks argue still falls within the scope of self defense or preemptive self defense.)

    Without Congress, could he or she commit to years (or perhaps even past the next session of Congress) of war against enemy elements in or the nations of Pakistan, Afghanistan, and pick-your-other-stan based on intelligence only available to him – even without further attack on this country or its property abroad? Textually and structurally, the answer would seem to be no and Professor Kent’s argument leads to that conclusion as well. I don’t believe that the Constitution or The Prize Cases requires Congress to de-authroize the war. I believe it requires the president to get authorization to continue his “necessary” actions on behalf of the Republic.

    As for the high bar of unreasonableness, I think we have unfortunately already demostrated the capacity for exceeding it.

    Again, by necessity, these issues are somewhat after-the-fact reviews, as they were in The Prize Cases (but are not in the current detainee situation). I then refer you, once again, to Little v. Barreme. And if we have terrorists at Gitmo who are not part of Al Qaeda or someone else connected with 9-11, meaning within the scope of the AUMF, what is the executive’s authority to militarily detain them and for how long does it last?

  6. As for whether the proportionality can be determined, we do this sort of thing every day in criminal law. It is admittedly an after-the-fact review. However, I am reasonably certain that similar subjectivity and objectivity tests can be applied – allowing for intelligence informaiton and the ambiguity of the nature of international relations.

    As for the high bar of unreasonableness, I think we have unfortunately already demostrated the capacity for exceeding it.

    Would you see this as a matter of prior restraint, however, or simply a possibly impeachable offense after a disproportionate response?

    It seems we’re treading in dangerous territory if subordinates of the POTUS need weigh proportionality before carrying out direct orders stemming from a sudden attack.

  7. It seems we’re treading in dangerous territory if subordinates of the POTUS need weigh proportionality before carrying out direct orders stemming from a sudden attack.

    You assume, of course, that subordinates of the POTUS actually undertake such analysis. How exactly did we end up intervening militarily in the Kosovo crisis without Congress?

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