Declaring War and Libya: A Comment on Past Practice

My previous post argued that the original meaning of the declare war clause requires the President to get Congress’ approval before beginning military conflicts (including the current conflict in Libya).   I’ll now turn to two leading counterarguments: first, that Presidents have routinely engaged in low-level conflict without Congress’ approval; and second, that the President’s action to enforce a resolution of the U.N. Security Council differs from ordinary war.

I’ll take the historical practice first.  To start, it’s important to note that my reading (and basically every reading) of the declare war clause allows the President independent power to respond with force when the U.S. is attacked.  The clause only means that the President must get Congress’ authorization to begin a war (that is, to “declare” it).  As Madison said at the Constitutional Convention, the President has power to “repel sudden attacks” (though exactly how far this power extends is subject to serious debate).

Recognizing this power accounts for essentially all material presidential uses of force in the 18^th and 19^th centuries.  For example, in 1819 then-General Andrew Jackson attacked the Seminole tribe in Spanish Florida, as well as several Spanish posts, on the President’s orders but without Congress’ approval.  When some members of Congress objected, citing the declare war clause, Jackson’s defenders responded that the Seminoles, with Spanish support, had attacked first.  Similarly, at the outset of the Civil War, President Lincoln ordered a naval blockade of the South without Congress’ approval.  Lincoln argued that the South’s attack on Fort Sumter justified his response.

The Supreme Court accepted Lincoln’s argument in The Prize Cases, upholding the blockade.  The Court first stated the general rule that the President “has no power to initiate or declare a war.”  (67 U.S. 635, 668 (1863)).  But, the Court continued, once the other side began the war, the President could fight in response (including not just defensive but also offensive measures).  This holding is consistent with the argument of Jackson’s defenders in the Seminole conflict and Hamilton’s argument, mentioned in my last post, concerning the 1801 Tripoli conflict.

Thus longstanding historical practice – not just in the 18^th century but throughout the 19^th  – supports my view of the declare war clause: there was broad agreement that the President could not engage in hostilities independently unless the U.S. was attacked.  It was not until the 20^th century that a practice arose of Presidents using military force without approval other than in response to attacks.  This practice of course has little bearing on the Constitution’s original meaning.

Perhaps, though, modern practice acts as a sort of precedent that allows the President’s action despite the Constitution’s original meaning.  This seems to be the core of Jack Goldsmith’s important post in support of the President’s power that I mentioned earlier.   Many attempts to apply the Constitution’s original meaning to modern circumstances must wrestle with the question of precedent.  But here I think the practice isn’t sufficient to raise the question, mostly for the reasons explained by Ilya Somin in this excellent discussion.  The short of it is, first, that there have not been all that many instances of Presidents unambiguously beginning military conflicts in the last 50 years (as opposed to sort-of-plausibly claiming to be responding to attacks or making deployments not involving actual hostilities).  And second, most of those instances have been strongly contested by members of Congress and legal commentators.

Just in the last decade, some members of the George W. Bush administration initially suggested in 2003 that the President might have power to attack Iraq without Congress’ approval, but this claim was widely criticized on constitutional grounds; the administration reconsidered and (successfully) sought approval.  Later, in 2007, there were rumors that the President might bomb Iran’s nuclear facilities.  Congressional leaders again strongly objected to any unilateral presidential action, invoking the declare war power.  Though his administration tested the boundaries of presidential power in several respects, Bush did not undertake any wars without Congress’ approval.

On this record, it seems hard to say – whatever force one gives to precedent generally – that practice has established a precedent sufficient to override the Constitution’s original meaning.  Historical practice before the 20^th century gives little support to the President, and the only Supreme Court case to consider the matter expressly stated that the President lacked power to “initiate” war.  Modern practice is deeply contested, and has been at least since the Vietnam War.  As recently as 2007, congressional leaders sharply asserted Congress’ power under the declare war clause to approve a possible campaign of aerial strikes.  We’re far from a Constitution-altering consensus in the President’s favor.

There remains the question, though, whether the Libya intervention is different because it is being done by authority of a resolution of the U.N. Security Council.  I’ll turn to that question next.