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The Spectacle Blog
A few readers objected to my contention that an authorization of force is no less constitutionally legitimate than a declaration of war. The main argument is that these authorizations frequently contain contingencies, allowing the president to commit troops to combat if X happens or Y does not. In theory, I agree that this is problematic. But in practice, these contingencies usually just amount to hedging and it is very clear that Congress is voting for war by passing the resolution. (Though some Democrats pretended to be surprised by this in the case of the Iraq war.)
Some people did make the constitutionally dubious argument that George W. Bush was already authorized to invade Iraq under the resolution that authorized his father to expel Saddam Hussein’s forces from Kuwait during the Persian Gulf War. Others still cited the resolution authorizing the president to strike back at those responsible for 9/11. Neither argument held water with very many people, but both are examples of how the open-endedness of authorizations of force can create constitutional problems a declaration of war would avoid.
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More Blog Posts by W. James Antle, III
http://spectator.org/blog/2011/03/22/authorizations-of-force
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Zbigniew Mazurak | 3.22.11 @ 11:59AM
I disagree. "Congressional authorizations of war", although issued by the Congress, are not the same as declarations of war and are therefore legally insufficient. The Constitution is clear: you are not allowed to go to war without a Declaration of War. A DOW is the proper law to initiate war, and it was the way it was done against Britain (1812), Spain (1898), Imperial Germany (1917), and the Axis (1941).
Similarly, the Congress should've declared war on Qaddafi a long time ago.
But at least Bush bothered to ask the Congress for permission to invade Afghanistan and Iraq. Obama has not even bothered to do that. The Congress is actually very angry about that.
ShawnTzu| 3.22.11 @ 11:36PM
"The Constitution is clear: you are not allowed to go to war without a Declaration of War."
The Constitution is anything but "clear" on this and the Founders themselves were not in unanimous accord on the way this was to be interpreted. To wit:
"An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed. Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . ." But no formal declaration of war was passed, Congress apparently accepting Hamilton's view. [http://caselaw.lp.findlaw.com/data/constitution/article01/41.html]
A similar principle was implied in President Adams not asking for a declaration of war with France in 1798 when we were in every sense of the word in a state of war with them. And since Jefferson's time, it has been customary for congressional and senatorial resolutions for the authorization of force to be used when it was determined that another power had essentially committed an act of war against us. Since 1941, these have all involved congressional and senatorial resolutions to use force and since 1973 in particular (and the War Powers Act) these have exclusively taken the form of joint resolutions issued and voted on concurrently by both houses and (if they passed) signed into statue law by the president.
Now of course there are differences of view on some aspects of interpretation here but the idea that the Constitution is "clear" on this matter is both ahistorical as well as absurd. Unless you think the men who wrote the Constitution know less about what it did and did not allow than you do -and I hope you have more humility than that.
Wayne | 3.22.11 @ 12:05PM
Are the military violating the law by obeying Obama's orders? I tend to think so. This is not Obama's private army.
crazy| 3.22.11 @ 12:08PM
As much as a Declaration of War (sh)would be preferable to deliberately vague authorizations to use force shouldn't we remember Pearl Harbor motivated Congress to declare war on Japan at which point the President invaded Europe. Obama's justification to use force in support of European allies may be constitutionally dubious, but Congress will have to push back with more political force than we're seeing...
Skippy| 3.22.11 @ 3:56PM
Not exactly...
Hitler screeched his declaration of war against the US a day or two after Pearl Harbor.
We didn't do any European invading for quite some time. There was no Doolittle Raid on Berlin.
Hitlers advisors were horrified that he did so, as they had no desire to fight US.
It was possibly his greatest blunder.
Rogue Elephant| 3.22.11 @ 12:29PM
I think the difference is mere formalism - form over substance.
The Constitution makes the President commander-in-chief to put a check on the military by placing putting a civilian in command of the military.
The Constitution vests the war power in Congress to check the President's use of the military (checks-and-balances), requiring consultation with the executive branch before engaging in military action.
That is the substance of it. The rest is merely formalistic.
Rogue Elephant| 3.22.11 @ 12:55PM
In Federalist Papers No. 69 , Hamilton explained, "The president is to be commander-in-chief ... In this respect his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces ... while that of the British king extends to the declaring of war, and to the regulating and raising of fleets; all which, by the constitution under consideration, would appertain to the legislature."
Red Phillips | 3.23.11 @ 1:18AM
RE, how dare you actually quote a Founding Father to back up your point rather than just pontificating. :-)
tonypal| 3.22.11 @ 12:46PM
I don't think anyone could argue with your last sentence regarding declarations of war and the resolution of ambiguities. The only real question is whether such a declaration is required. Again, apart from a few TAS posters who at one time or another may have glanced at the Constitution and saw something about a declaration of war, I think we can all agree that the Constitution gives the President plenary power to initiate military action.
The genius of the Founders was such that over 230 years later, we are still debating the relative powers of the executive and legislative branches. That's exactly how they wanted it, no easy solutions. However, I'm absolutely certain that Jefferson, Madison and the rest of the gang would not have wanted a sitting President to be embroiled in an endless debate over the use of force when US interests are at stake. Just as there are exceptions to the 4th amendment based on exigent circumstances which allow law enforcement to conduct warrantless searches, requiring a retroactive proof of probable cause, the President ought not have to let the bad guys do their damage because he hasn't demonstrated to 535 members of Congress the need to commit troops to the battlefield. He can do that after the fact and Congress can decide whether to fund the operation.
To those who might say this point of view effectively neuters the Congress on matters of war, I would point to the Vietnam war and its conclusion. There, Congress simply decided to defund the operations, thus necessitating a withdrawal. That is the true power of the Congress, the power of the purse string. Again, the Founders knew exactly what they were doing and this debate is further proof of their genius.
LiveFreeOrDie| 3.22.11 @ 2:57PM
"I think we can all agree that the Constitution gives the President plenary power to initiate military action."
I think most the folks here would disagree. The constitution literally says almost exactly the opposite.
"However, I'm absolutely certain that Jefferson, Madison and the rest of the gang would not have wanted a sitting President to be embroiled in an endless debate over the use of force when US interests are at stake."
Congressional approval does not equal "endless debate." There was little urgency in this situation and there's nothing in Libya you could reasonably call "US Interests." Plenty of time went by before any action was taken, plenty of time available to read from the teleprompter in front of congress, plenty of time to put the finishing touches on vacation plans, etc.
"...I would point to the Vietnam war and its conclusion. There, Congress simply decided to defund the operations, thus necessitating a withdrawal."
You contend this was the intended design? The President can do whatever he likes and then congress is required to act (through the budget mind you) if they don't like it? This is the proof of the founding father's genius? I think you are way off-track with your arguments and most evidence points to the contrary.
tonypal| 3.22.11 @ 5:53PM
Live Free or Die: Full disclosure. I spent 3 long years studying the Constitution in law school, so I'm pretty familiar with the document. I was a member of the Federalist Society and consider myself an absolute originalist.
I've been debating this in other areas of TAS and there seems to be an inability to understand exactly what I'm saying coupled with a desire to put words in my mouth. For starters, there is no question that the President has absolute power to commit troops to the battlefield when US interests are involved. You claim the Constitution says "exactly the opposite." Ok, where does it say exactly the opposite? If you're referring to Congress' power to declare war, my response is so what. There's a difference between initiating military action and declaring war. A formal declaration of war has never been a requirement for the President to use military force. If that was the case, then wouldn't it be an impeachable offense every time the President orders a covert operation to take out terrorists abroad? After all, that's one of the many uses of the military.
Take a long look at Article I, Section 8. It says an awful lot about Congress and it's relationship to the military, including raising armies. What it doesn't say is that the power to initiate military action belongs to the Congress. Then take a long look at Article II, Section 2. Apart from where it says the President is Commander in Chief, do you find anything that says the President must get congressional approval to use military force? I don't. What exactly do you think Commander in Chief means? It means you have command of all the nation's military forces. As such, you have the power to use those forces, provided there is a national interest. That has always been the understanding of the term Commander in Chief. The Constitution says nothing else on the matter.
I'll skip to your 3rd paragraph since paragraph 2 seemed more of a shot at Obama than a serious statement. I never said the President has imperial power to do what he wants. If you could show me where I wrote that, I'd like to know. I think you'll probably find that language in the same place where "The constitution literally says almost exactly the opposite." In other words, nowhere. Again, the President has plenary power to commit troops to the battlefield when there is a national interest. I can't say it any more clearly than that. If you're reading something else into it, then maybe you possess those super goggles that allows Supreme Court Justices to find a right to abortion.
I'm very familiar with your posts here at TAS. Trust me when I tell you we are on the same page. My loathing of Obama and all things leftist/liberal takes a back seat to no one. However, I don't consider these things in the context of who happens to be the President. There is simply nothing in the Constitution to support your arguments. In fact, there has been very little case law on this matter, and most of it has been tangential at best. The Founders knew exactly what they were doing, as they didn't want the President hamstrung by Congress. No, the President does not have unlimited authority and I would never make that case or want it to be so. But there are times when the President must act in an exigent manner. Congress controls the spending and checks the President through the appropriations process. That's the whole "raising of armies" thing I referred to.
Red Phillips | 3.22.11 @ 9:29PM
"I spent 3 long years studying the Constitution in law school, so I'm pretty familiar with the document. I was a member of the Federalist Society and consider myself an absolute originalist."
You are not practicing originalism. At best you are practicing hair-splitting, pedantic strict constructionism. Originalism attempts to discern the original intent. You aren't making an argument about original intent. If you were you would actually quote some Founders. You are making an argument of convenience to support your view. I would call it an overly literalist argument, but it isn't even consistently that. If you were being consistently literalist, you would be equally literalist about the declaration of war requirement.
It is clear that the Founders did not intend a Supreme Executive using the military as he alone sees fit all over the world as a tool of statecraft, because there was a serious debate at the Constitutional Convention over whether we should even have a standing army.
LiveFreeOrDie| 3.23.11 @ 1:25PM
Others have touched on what I would have said. We'll have to just disagree on this one. I think you might be assuming too much from the title "CIC."
Red Phillips | 3.22.11 @ 9:07PM
"I'm absolutely certain that Jefferson, Madison and the rest of the gang would not have wanted a sitting President to be embroiled in an endless debate over the use of force when US interests are at stake."
tonypal, perhaps instead of pontificating about what you think the Founders intended, you could provide us with some quotes from them that back up your point as I asked you to do in the other thread.
I say again, the doctrine of Executive Supremacy that you articulate is of modern origin. It primarily arose as an interpretation during the Cold War. If I'm wrong then it shouldn't be hard for you to produce some evidence from the time of the framing of the constitution to back up your point.
"the President ought not have to let the bad guys do their damage because he hasn't demonstrated to 535 members of Congress the need to commit troops to the battlefield"
NO ONE is suggesting that the President can't act on an emergent basis in the case of invasion or actual threat. That is not the issue. The issue is that we have been at war with Iraq and Afghanistan (in neither case was there an "emergent" threat) for years (and Vietnam and Korea before that) and now Libya (clearly not emergent) with no declaration of war. This does not even meet your criteria. Has the President not had time to ask Congress for a declaration of War against Iraq?
George S| 3.22.11 @ 12:49PM
In either case -- whether 'declaration' or 'authorization' -- it is the Congress that initiates the use of force. If you are worried that the President has way too much power and discretion under that authorization, then you are correct. It is a frightening amount of power; it is needed to do whatever is necessary to prevail. However...
... the Congress still has the power of the purse to check the war making power of the President. Congress pays for the war and the military and can cut off funding and the whole thing stops. Getting into a word game with the Constitution is the stuff of liberal intellectuals. As long as each branch respects the document, authorization and declaration are one in the same. After all, the Constitution does not provide us with an acceptable text string to declare war; it expect us to respect separation and limitation of powers.
tonypal| 3.22.11 @ 6:07PM
Perhaps you just made a typo, but no George, it is not the Congress that initiates the use of force. If that was the case, the Constitution would not refer to the President as Commander in Chief. As I stated in a response to another poster, if your statement were correct, then the every President who has ever authorized a covert military operation would have committed an impeachable offense.