The Constitution and Libya

by Michael Ramsey

I appreciate the opportunity to guest blog on the Constitution and the Libya intervention.  In a post at Slate, Jack Goldsmith says that the Constitution’s original meaning in this area is “indeterminate.”  I respectfully disagree:  I think congressional approval is clearly required.  In this post I’ll set out my basic argument, and in the next one I’ll consider leading counterarguments.

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war.”  (References are found in my article “Textualism and War Powers,” 69 U. Chicago L. Rev. 1543 (2002), in part I.A).

Does the Libya intervention amount to a “war” in constitutional terms?  Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.”  International law writers of the time expressed similarly expansive definitions.  Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course. 

The fact that our use of force is limited to air strikes should not matter.  Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution).  The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801.  So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks.   (In 1801, Hamilton argued that authorization wasn’t needed because Tripoli, not the U.S., began the war; but he agreed that congressional authorization would otherwise be necessary even in the context of an attack on a single Tripoli warship.)

Thus the founding generation thought the Constitution reserved war-initiation power to Congress.  How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities.  John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.”  Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way.  Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.”  Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks.  (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war. 

Perhaps, though, the President also has power to declare war (after all, the Constitution expressly says only that Congress has it, not that the President doesn’t, and it could be part of the President’s power as commander-in-chief).  Returning to Hamilton, a key passage in his Federalist 32 argued that often constitutional power could be held concurrently by different entities.  But, he continued, an exclusive grant of power would arise where concurrent power would be “totally contradictory and repugnant” – that is, when one branch’s exercise of a power would wholly undermine an express grant to another branch.  Hamilton didn’t give the example of declaring war here, but it fits his model: war, once launched, cannot be undone without consequences.  If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power.  James Wilson told the Pennsylvania ratifying convention:  “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

 As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”  In Libya, President Obama has “declared” a war – a limited one, to be sure, but still a war by 18th century definitions – without congressional approval.  That contravenes both the Constitution’s text and the founding era’s consensus understanding.

http://opiniojuris.org/2011/03/23/the-constitution-and-libya/

11 Responses

  1. Fantastic post, Mike!

  2. The danger lies in an ever expanding “reach” of Presidential ability to bypass a clear intent of the Founding Fathers for implementation of checks and balances on military adventures by way of Congressional approval.
    I agree with Kevin; an excellent post.

  3. In them main, your conclusion is the same as Michael Dorf’s with regard to the constitutionality of the humanitarian intervention authorized by the UN’s Security Council: http://www.dorfonlaw.org/2011/03/is-military-action-in-libya.html 

    He also notes that by his “tally, four of the five Presidents to have served in the last 30 years have gone to war illegally….”

  4. An excellent post, indeed, but I would like to hear more of the Founders’ view on the support of allies in conflict, and whether the President could provide material support without Congressional approval. Though the institutions haven’t caught up with the international principles, our troops are there, not by authority of a U.S. “sovereign command,” but under a sanction by the UN Security Council. (That may not be worded exactly right, but I hope the suggested interpretation is clear.)

    I also like to hear your thoughts on the constitutionality of Article 24 of the UN Charter, in which Members States give the body the authority to act on their behalf.

  5. Hasn’t the War Powers Act sort of opened up this door to allow that the President does have the authority to introduce troops into combat prior to seeking a Congressional Resolution first?

  6. The Founders intent probably did not include a War Powers Act.  We end slavery too. Sh*t happens.
    Best,
    Ben

  7. Charles D, Michael Glennon has a lot to say about the War Powers Act in this 2008 Congressional testimony:
     
    ” My views can be quick summarized. I believe that the War Powers Resolution is, except for its legislative veto, constitutional in its entirety; that it has not worked; that the reasons that it has not worked can be identified; and that it can be fixed and made to operate effectively.


    -skip-



    The claim that the Resolution is unconstitutional is directed primarily at three provisions of the Resolution: the 60-day time period of section 5(b), the legislative veto of section 5(c), and the clear statement rule of section 8(a)(a)(1). I will address each in turn.


    Easily the most controversial provision of the Resolution is the 60-day time limit. Some commentators content that it impinges upon “independent” power conferred upon the President by the Constitution. What this claim overlooks is that there exists a second category of presidential power that is subject to congressional regulation: concurrent power. This is constitutional power that may be exercised initially by the President in the face of congressional silence, but which Congress may nonetheless subsequently choose to restrict.


    -skip-


    This, then, is the mode of analysis pursued by the United State Supreme Court in the assessing the reach of presidential foreign affairs power. It bears repeating: “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” “When the President takes measures incompatible with the expressed or implied will of congress, hi power is at its lowest ebb…” The Steel Seizure Case, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).

    -skip-



    The so-called “Presentation Clause,” however, does cause problems. Section 5 (c) of the Resolution, allowing Congress by concurrent resolution to force the President to withdraw the armed forces from hostilities, is in my opinion clearly invalid after the Supreme Court’s decision in Chadha. The Court there found that Presentation Clause requirements must be met whenever legislative action has the “purpose and effect of altering the legal rights, duties, and relations of persons, including the…Executive Branch…outside the legislative branch.” Adoption of a concurrent resolution under section 5(c) would have the purpose and effect of altering the rights and duties of the President. Justice White, in dissent, was doubtless correct in reading the majority opinion as invalidating the legislative veto in the War Powers Resolution.



    To be sure, arguments can be made to the contrary, but none is persuasive.



    -skip-


    Section 8(a)(1) serves a critically important purpose. It ensures that the decision whether to authorize armed force—the most significant decision Congress can make—will not be misinterpreted. Action that momentous calls for decisional clarity. That is all that section 8(a)(1) requires. Its enactment represented a triumph of congressional responsibility, and its validity ought not be doubted.



    Flaws in the War Powers Resolution



    There are many problems with the War Powers Resolution and a comprehensive discussion would be too lengthy for the time here available. Suffice it to list the two major ones. The first and most serious problem with the Resolution [comes] from a seemingly minor drafting error, unnoticed at the time the resolution was enacted, that turned out to be fatal to its proper operation. The intent of its sponsors had been to require the President, upon introducing the armed forces into hostilities, to transmit to Congress a written report on that action within 48 hours. He would then have 60 days to keep them in hostilities.



    The problem results, however, from the failure of the resolution to require the President to specify which kind of report he is filing. A “hostilities” report is only one of three different kinds of reports required by the resolution, and the other two do not set the clock ticking. The latter two requirements apply in situations that could also require a “hostilities” report, that is, when forces are introduced “into the territory, airspace or waters of a foreign nation, while equipped for combat,” and when forces are introduced “in numbers which substantially enlarge United States armed forces equipped for combat already located in a foreign nation.”



    The result is that Congress has found itself required to “trigger” the 60-day limit of the Resolution through the enactment of legislation, over the President’s veto. Even if those efforts at triggering the been successful, the very act of engaging in them amounted to an implicit admission that the resolution had failed. The central objective of the Resolution had been to put into place a self-activating mechanism to control abuse of presidential discretion in the event Congress lacked the backbone to do so, as the sponsors believed had happened during the Indochinese War. Thus, in 1973 the 60-day time period had seemed to have the advantage of shifting to the White House the burden of justifying military actions by requiring their termination ― automatically ― despite congressional inaction. But these expectations proved unfounded. The element of “automaticity,” as Senator Jacob Javits earlier had liked to refer to it, was grounded entirely upon the foundation of a written “hostilities” report submitted by the President. In the absence of such a report — and in the absence of the Executive’s good faith adherence to the spirit of the resolution, which the sponsors also had mistakenly expected ― the whole procedural edifice turned out to be a house of cards.

    The second most serious problem is that it has turned out to be judicially unenforceable. Courts have declined to enforce it primarily because doing so would, they have concluded, constitute a political question. In 1983, for example, in Crockett v. Reagan, the United States Court of Appeals for the District of Columbia Circuit affirmed the holding of a federal district court that the question whether a report is required to be submitted under section 4(a)(1) of the resolution is, at least with respect to combat activities in El Salvador, a political question. Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983), aff’g 558 F.Supp. 893 (1982). That court reached the same result in a case that I litigated with Alan Morrison, Lowry v. Reagan, 676 F. Supp. 333(D.D.C., 1987), in which we represented 145 members of Congress in challenging the Reagan Administration’s failure to submit such a report in connection with the Kuwaiti tanker escort operation. Rep. Tom Campbell confronted the same impediment in challenging the Clinton Administration’s violation of the 60-day time period in the 1999 military actions concerning Kosovo.”


Trackbacks and Pingbacks

  1. In the last few days several smart people have disagreed with my argument in favor of the constitutionality of the Libya intervention.  […]

  2. […] The Constitution and Libya – Michael Ramsey As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war.” James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’ […]

  3. […] Professor Michael Ramsey puts it: Every major figure from the founding era who commented on the matter said that the Constitution […]

  4. […] unilaterally to help the victims in Libya. This would be true even if Congress authorizes the war as required under Article I of the United States Constitution.  The authorization to go to war must come from someone else other than an American political […]