Opinio Juris Symposium: The President’s Residual Power to Use Military Force

[We are very pleased to have Andrew Kent’s participation in this online symposium on The Constitution’s Text in Foreign Affairs. J. Andrew Kent is an associate professor of law at Fordham University School of Law. Although he is new to the academy, Professor Kent has already published important works in the area of foreign relations law including “A Textual and Historical Case Against Global Constitutionalism”, 95 Georgetown L. Rev. 463 (2007) and “Congress’s Underappreciated Power to Define and Punish the Law of Nations,” 85 Tex. L. Rev. 843 (2007). ]



Like Professor Ramsey’s previous work, I found The Constitution’s Text in Foreign Affairs to be exceedingly thoughtful, careful, even-handed and provocative. I’m a huge fan of Ramsey’s work, including this book. Today’s format, however, suggests I should poke and prod and critique, not flatter. So I will use Ramsey’s discussion of the President’s power to respond to a state of war created by an enemy attack on the U.S. to raise some questions.



The Constitution’s Text argues that when Article II vested “the executive power” in the President, it transferred a knowable, definable quantum of what eighteenth century Americans would have understood to be discretionary power to act independent of the legislature in the realm of foreign affairs. But unlike in the British constitution, the model for many executive power theorists read by the American Founders, the U.S. Constitution gave several key pieces of executive power to Congress as a whole or the Senate, including the power to declare war, issue letters of marque and reprisal, and approve treaties. Ramsey argues that the best meaning of the Constitution is that these exceptional grants of executive power to other branches must be read strictly, and that all residual executive power, not given to Congress or the Senate, went to the President. Ramsey further argues that “declaring war” meant, to an eighteenth century audience, initiating hostilities in the first instance by either word or deed. The President cannot intentionally begin a war, then, when the country is at peace. But all other war powers not given to Congress remain with the President, Ramsey argues. This means, among other things, that when the U.S. is attacked by another country and a state of war thereby created, the President has independent constitutional authority to respond as he chooses.



On this issue, The Constitution’s Text follows through only partially on its textual method; it gives insufficient weight to the Constitution’s truly massive transfer of “executive” war power away from the American Executive. The Declare War Clause and Marque and Reprisal Clause are discussed at length but somewhat in isolation. Many other “executive” war-related powers, clearly granted to Congress by the Constitution, receive shorter shrift in the book’s discussion of force initiation responsibilities – the powers to raise and support armies and navies, make rules and regulations for the armed forces, make rules concerning captures, constitute courts (for condemnation of prizes of war or trial of enemy war crimes, e.g.), call out the militia, impose embargoes and other trade sanctions (Foreign Commerce Clause), and punish offenses against the law of nations. With the exception of the Commander-in-Chief Clause and treaty power, every single identifiable war-related aspect of eighteenth-century “executive power” named in the Constitution is in Article I, not Article II. Since war was, in bulk, given to Congress, and since the Necessary and Proper Clause is also in Article I, why isn’t it textually-structurally more plausible to read the Constitution as commanding the reverse of Ramsey’s default interpretive rule: war powers are congressional unless clearly given to the President?



A large part of Ramsey’s answer relies on the precise wording of the Declare War Clause. Because he interprets “declare” to mean only that Congress may begin war, responding to already existing hostilities is not a declaration and therefore not a congressional power. But this ignores other relevant clause. The Marque and Reprisal Clause authorizes responsive, defensive (as well as offensive) force. When the U.S. is attacked or molested, Congress may strike back by issuing licenses to private seamen to attack the aggressor’s shipping. What becomes this power if an enemy attack automatically triggers the Executive’s power to respond at will with whatsoever amount of force it desires? Congress’s power to calibrate national responses to provocation is lost. Similarly, Congress’s powers to authorize U.S. warships to “capture” foreign vessels and its power to lay embargoes and other retaliatory commercial restrictions – additional powers to respond to provocation in a measured and targeted manner – are substantially vitiated by Ramsey’s reading of the Declare War Clause. Moreover, Congress’s negative power to decide against force as a response to provocation – recognized as crucial by, for example, Washington, Adams, Jefferson, Madison, Marshall, Iredell, Monroe, Gallatin, Gerry, Knox and others – is gone. A complete textual-structural account of war powers must, I think, account for the significance of Congress’s powers to decide whether and when to use responsive force short of war, or even no force at all.



The Constitution’s Text slights illuminating judicial doctrine and post-Founding executive-congressional practice on this issue. Two Marshall opinions are on point. Brown v. United States (1814) showed that the Declare War Clause must be read in light of the Captures Clause. And Little v. Barreme (1804) held that congressional statutes authorizing only limited responses to enemy provocation bind the Executive. Notably, the executive order at issue in Little was an isolated instance where President Adams did not wholly defer to Congress to decide how to respond to France’s Quasi War against us. Similarly, the practice of President Washington in the face of Indian attacks on the U.S. and even formal declarations of war by Indian nations was to allow Congress to decide how to respond. Ramsey’s discusses but steeply discounts these precedents, for reasons with which I do not agree.



For example, he warns that using post-ratification evidence “carries its own caveats and dangers. Once the Constitution was ratified and its government began operating, American leaders developed personal, political, and institutional commitments to views not necessarily founding upon anything in the Constitution’s text” (p.74). Ramsey is particularly wary about any evidence of constitutional meaning from beyond the “immediate post-ratification experiences of 1789-1797” (75), apparently because it is distant in time from the Founding, giving more time for political etc. bias to accrue and linguistic usages to change. As a result, the Constitution’s Text consistently privileges the writings of Europeans who shaped the intellectual worldview of the Founding generation by writing about law, politics and governance before the Constitution was drafted (e.g., Blackstone, Locke, Grotius, Vattel, de Lolme, Montesquieu), over the directly expressed views of Founding generation Americans interpreting the actual Constitution after it was put into practice.



It seems to me, though, much easier and – hence ultimately more accurate – to understand and discount the potential biases of familiar American men (how many volumes do we have by and about Hamilton, Washington, Adams, Jefferson, etc.?) holding familiar government positions than it is to implement Ramsey’s preferred method: doing the difficult work of analysis, inference and translation required to, first, accurately understand eighteenth century British and European politico-legal concepts like “executive power,” “legislative power,” “declare” and “war,” and then understand how Americans assimilated them into their unique world view, and how their meanings would have changed as they were molded and rearranged into the wholly novel U.S. Constitution. Pre-Constitution concepts and language are, of course, vitally important tools of analysis. But not more important, I think, than post-ratification commentary and practice directly on point.



To understand the President’s power to respond to hostilities initiated by others, The Constitution’s Text devotes the same space to Englishman Richard Lee’s little known 1760 treatise on the international law regarding war-time seizures of shipping as it does to the actual practice of government under both the Washington and Adams administrations. If a rock-solid methodological commitment required this choice – say John Yoo’s sometimes-expressed claim that the Constitution’s legitimacy derives only from its adoption by the People in 1787-88, and therefore any post-dated evidence has little value – I could better understand Ramsey’s choice. As it is, he describes his project as attempting to determine the Constitution’s meaning to ordinary Americans at this time of ratification (vii, 8-9). Stated at this level of generality, this goal wouldn’t seem to require the choices about evidentiary weight made in The Constitution’s Text.



I have a few other issues with Ramsey’s discussion of the power of the President to respond to attacks: