Declaring War and Libya: A Comment on Past Practice

by Michael Ramsey

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 18th and 19th 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 18th century but throughout the 19th  – 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 20th 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 20th 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.

http://opiniojuris.org/2011/03/25/declaring-war-and-libya-a-comment-on-past-practice/

6 Responses

  1. Enjoying the posts, Mike.

    I note that for those supporting an independent or unilateral presidential power supported by “historical gloss,” they seem to ignore or minimize the requirement for congressional acceptance.  What Frankfurter said in Youngstown was,
    “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)(emphasis added)

  2. John, I agree, and thanks for the comment.  Also, Dames & Moore v. Regan, on which Jack Goldsmith relies, isn’t to the contrary.  The Court, per Rehnquist, there invoked a (supposed) unquestioned practice dating to 1799 and continuing throught the 19th century.  315 U.S. 203, 225 n.8.  I think Rehnquist got his history wrong, but in any event he did not claim that authority could arise just from modern practice.

    –Mike

  3. Sometimes waiting for the approval of Congress leads to failures which are then impossible to take back. But this just proves the trend of the recent years when foreign policy in the US is more and more mixed and interconnected with domestic issues.

  4. At ASIL, Harold Koh’s defense of the Constitutionality of the President’s action on Libya rested on the foreign relations power and the Commander in Chief powers – not sure I have seen discussion on this.
    Mary Ellen O’Connell pointedly questioned necessity. As time goes on, her thoughts may be seen as prescient as the complexities of Libya become more clear to us. I still support the Libyan action in the SC framework.
    If Congress power to declare war is the heart of the matter, I am curious to see whether such an act is seen to have to precede even action like a US vote in a SC meeting where Chapter 7 and all necessary means are invoked?
    I wonder if this is all sort of the domestic US process of determining necessity and proportionality.
    Best,
    Ben
     

  5. To my mind, the plenary power of Congress to commit the nation to war is such an elementary, core part of what this Republic is, and of why and how this self-government was founded, that I find “debates” about the issue – as though it’s somehow a confused or unclear principle – bizarre. But, then, I know that the authoritarian’s instinct to follow and submit to A Leader will forever be with us, and that we can never take for granted the hard-won freedoms with which the people of this nation were and are blessed.
    Like Michael Ramsey, as demonstrated by these two excellent posts, someone else who has long taken those blessings seriously and worked tirelessly to defend them from the promoters of monarchy (in all but name) – such as the fanatical John Yoo, whose Constitution-spurning theories no doubt remain in favor with many of Washington, D.C.’s “elite” -  is Louis Fisher, formerly of the Library of Congress, now of The Constitution Project.
    In a timely new paper published this month, Fisher methodically dismantles John Yoo’s “scholarship” on the subject of federal war powers – exposing Yoo and, especially, the promoters of Yoo’s hacktacular, schoolboy efforts to twist and hide historical reality for dishonorable ends, as the deliberate enemies of limited, Constitutional government that they are.
    Here’s some of Louis Fisher’s new, historically-honest paper, describing the war powers of Congress, and of  Congress alone:
    “Breaking free of monarchy and a strong executive had profound implications. Blackstone looked to the British king as the “pater familias of the nation.” As historian Gordon Wood explains, to be a “subject” of the king “was to be a kind of child, to be personally subordinated to a paternal dominion.” Subjects were necessarily “weak and inferior, without autonomy and independence” (Wood 1993, 11-12). The American colonists refused to be subjects, either to the king or to Parliament. Self-government means that individuals take charge of their lives and their communities, functioning as adults, not as children. Republican government in the United States cannot survive if citizens (and members of Congress) look to the president as “pater familias,” deferring to executive military initiatives.

    Hamilton’s use of such words as “unity” and “energy” were misinterpreted by Yoo to build support for a theory of plenary executive power that Hamilton never supported. As Adler demonstrates, essays by Hamilton in the Federalist Papers that advanced more moderate views of presidential power were simply ignored by Yoo.

    In that sentiment of trust to the president, [Pierce Butler] stood alone. James Madison and Elbridge Gerry moved to change the draft language from “make war” to “declare war,” leaving to the president “the power to repel sudden attacks,” but not to initiate war. Roger Sherman agreed: “The Executive shd. be able to repel and not to commence war.” Gerry expressed shock at Butler’s position. He “never expected to hear in a republic a motion to empower the Executive alone to declare war.” …

    Some might argue from the Philadelphia debates that although Congress may “declare” war, the president is at liberty to “make” war. That was never the understanding. Such an interpretation would defeat everything that the framers said about Congress being the only political body authorized to take the country from a state of peace to a
    state of war. The president had the authority to “repel sudden attacks”—defensive actions. Anything of an offensive nature, including making war, is reserved only to Congress.

    In Federalist No. 69, Hamilton wrote that . . . [u]nlike the king of England, the president “will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the
    actual service of the Union” (Wright 2002, 446).

    Article II designates the president as commander in chief. That title does not carry with it an independent authority to initiate war or to act in a manner free of legislative control. The Constitution provides that the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Congress, not the president, does the calling.

    The Prize Cases has nothing to do with a foreign invasion of the United States or a U.S. offensive action against another country. President Abraham Lincoln’s blockade of the South was a measure taken in time of civil war. Justice Grier carefully limited the president’s power to defensive actions: “Congress alone has the power to declare a national or foreign war.” The president “has no power to initiate or declare a war against either a foreign nation or a domestic State.”14 Richard Henry Dana, Jr., representing Lincoln, took exactly the same position during oral argument. He said the blockade against the South had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”15 Words could not be more clear. Yoo never cites those passages.

    Deficient standards and procedures in student-run law reviews can have serious consequences. The misconceptions and distortions that appeared in John Yoo’s article in the California Law Review later surfaced in Justice Department memos after 9/11, not only in his memos but also in those under the name of OLC head Jay Bybee. From there, they were incorporated into the “working group” memos prepared by the Pentagon to decide methods of coercive interrogation for detainees, applied first in Guantánamo and later at Abu Ghraib in Iraq. Any pretense of professional scholarship was abandoned. Bits and pieces from John Marshall’s “sole organ” speech in 1800, the Prize Cases, and other documents were torn from context to yield positions never intended. Evidence that contradicts the assertion of plenary, exclusive presidential power over war— from Jay’s Federalist No. 4 to President Washington’s statement in 1793— simply ignored. In the quest for presidential power unrestrained by judicial and legislative checks, John Yoo and others who shaped memos and policies moved from American constitutionalism and republican principles to the British model of monarchical prerogatives.”


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  1. [...] Chicago Law Review. Ramsey has further thoughts on the poverty of the argument from “past practice” here as does GMU law professor and Cato adjunct scholar Ilya Somin [...]