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The Spectacle Blog
I’ve been meaning for the past few days to respond to this comment on my brief post taking issue with John Yoo. Since there’s been a lot of conservative debate on presidential war powers around the web this week, I thought I’d adress this on the main blog rather than the comments thread:
First, unless you can point to specific language which says what has been considered constitutional in the past isn’t permitted, you’re kinda stuck with what everyone who came before Libya (and O’bumma) thought was permitted. There’s a concept in the law called estoppel - if you’re going to declare something which was previously permitted unacceptable, you need to tell everyone who has relied on the old understanding that the rules are changing first.
Second - and this is really more to your point, IMO - your second paragraph makes a very cogent argument against Obama’s Libya operation fitting within what has historically been considered a permissible exercise of Presidential Power. THAT’S NOT AN ARGUMENT THAT THE POWER DOESN’T EXIST - it’s an argument about the location of “the line.”
As to the first paragraph, we often see the stat that the United States has used military force some 125 times but only formally declared war five times. But the fact is, most major U.S. military interventions have been authorized by Congress. To get to this number, you have to exclude every conflict where there was a congressional authorization of force but not a formal declaration of war and include lots of fights with pirates, Indian tribes, and cattle rustlers that were clearly not wars. Undeclared presidential wars have happened, the largest of them being Korea, but they are clearly not “what everyone who came before Lybia… thought was permitted.”
The earliest military conflict to proceed without a formal declaration of war — and thus one frequently cited by advocates of expansive presidential war powers — was the Quasi War with France under President John Adams, a Founding Father. But Congress passed a series of statutes authorizing and restricting the use of military force. When President Adams issued orders for seizing vessels that went beyond what the statutes authorized, the Supreme Court ruled a Navy captain following those orders could be sued for damages. Thomas Jefferson was similarly both empowered and constrained by congressional statutes when using military force against the Barbary pirates. (This history is damaging to both those who claim the president can unilaterally wage war and those who insist anything less than a formal declaration of war is unconstitutional.)
Even among the exceptions to congressionally authorized interventions, Obama’s intervention in Libya and Clinton’s in Kosovo aren’t quite the norm. There were no Americans at risk (Grenada), no larger geopolitical struggle in place (Korea during the Cold War), the war is not in our post-Monroe Doctrine sphere of influence (Nicaragua in 1927), and there has yet to be any subsequent congressional authorization under the (itself constitutionally dubious) War Powers Resolution. As commander-in-chief of the armed forces, the president does have the power to use the military in some cases to protect Americans. But unilaterally deciding to invade a foreign country to protect a foreign populationis pretty much textbook example of what the Framers sought to avoid in assigning the power to declare war to Congress.
But there have been undeclared wars, so why bother to make the constitutional argument rather than simply concentrate on the wisdom or unwisdom of this particular intervention? Because if we mean what we say about Obamacare and other issues, we have to be serious about defending the Constitution and the doctrine of enumerated powers. That means the federal government has the powers delegated to it by the states and the people through the Constitution as amended, and no more.
That means interpreting the Constitution based on what the states and the people thought they were delegating to the federal government when they wrote and ratified the text, whether of the original document or its subsequent amendments. That is the opposite of just plucking random phrases out of the Constitution — “interstate commerce,” “necessary and proper,” and commander in chief” — and magically suffusing them with meaning that allows the federal government to do whatever we want it to do.
We can’t have it both ways. We can’t say that the liberals of 1950 were wrong and the constitutional conservatives of that era were right about everything except war powers. We can’t say that a history of past constitutional violations legitimizes presidential wars but doesn’t legitimize Obamacare. We can’t say everything not explicitly prohibited by the Constitution is permitted to the federal government in foreign policy but not domestic policy. Otherwise we have an unwritten constitution like other countries and no basis to pick and choose. The Yoo-style arguments bear on war powers bear more than a passing resemblance to liberal arguments about domestic policy.
To make the argument that the president can effectively declare war, you have to endorse positions that were considered and specifically rejected by the Constitutional Convention. You have to ignore assurances the Federalists specifically gave the Anti-Federalists. I just don’t see the evidence for expansive presidential war powers from the text of the Constitution, from the Convention notes, from the Federalist Papers or the state ratification debates. And I don’t think any conservatives would be arguing for these powers if it weren’t for the accident of history that from Eisenhower to Bush 41, Republicans were regularly elected president and almost never in control of Congress.
If Obama can send our troops in harm’s way on one side of a civil war that does not already involve the United States while his own government doesn’t assert there was any direct threat or any vital interest at stake, then the commander in chief power means everything and Congress’ power to declare war means nothing.
View all comments (8) | Leave a comment
More Blog Posts by W. James Antle, III
http://spectator.org/blog/2011/03/30/presidents-and-war
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Prester John| 3.30.11 @ 2:43PM
Earlier this week at my local GOP committee a resolution on Libya was presented that:
1) Didn't condemn BHO
2) Didn't call for his impeachment
3) Didn't say the war was illegal or unconstitutional, but merely expressed the committee's concern that BHO did not truly consult or get approval from Congress, that we have heard any number of contradictory explanations of the mission and objectives from a variety of government officials, and that our US Senators and Representative needed to hold immediate hearings to figure out what the heck was going on.
The resolution was tabled due to the paragraph mentioning the War Powers Resolution and the Constitution.
To say I was appalled is an understatment.
LiveFreeOrDie| 3.30.11 @ 2:51PM
Exactly! What do you suppose sustains the foolish status quo? Politicians refusing to interpret what the law says and follow it. Instead they do as they please and interpret the law in order to justify it.
Red Phillips | 3.30.11 @ 4:12PM
Jim, have you been following the debate between Tom Woods and Mark Levin? (I'm sure you have. It would be hard to miss.)
What the Executive Supremacy "constitutionalists" are arguing is really a mindlessly wooden form of strict constructionism that argues essentially by absence. ("The Contitution makes the Pres the C-in-C, and it doesn't specifically say Congress must authorize blah, blah, blah...") But they have managed to fool themselves into believing this is originalism. But this doctrine doesn't really present itself until the Cold War, mostly Nixon and beyond. I don't necessarily think they are being intentionally hypocritical, they are just misguided victims of their times.
I am not necessarily inclined to quibble about the semantics of Congressional authorization to use force vs. declaring war, although I am very trouble by if then types of authorizations. But it was pointed out to me at some point in this decade old debate that formal declarations of war carry with them the requirement to then abide by certain international conventions. I had often wondered why Congress didn't just declare war in cases like Iraq and Afghanistan just to shut people up, since it was a distinction without a difference once war was a fait accompli. But now I think the conscious avoidance of formal declarations of war is intentionally mischievious. This seems to violate the spirit of the Constitution if not the letter. At the least, formal declarations of war should be encouraged and authorizations to use force discouraged in non-minor situations where a declaration of war would be appropriate.
Zbigniew Mazurak | 3.31.11 @ 6:43AM
Wow, James Antle has finally managed to write a decent blogpost.
As for the issue at stake:
The President NEVER has the prerogative to start a war unilaterally (i.e. without a Congressional DoWar), under any circumstances. The Constitution is crystal clear: you are not authorized to go to war without a congressional declaration of war.
Only the Congress has been given the prerogative under the Constitution to declare war. It is for it, and ONLY for it, to decide when start a war, against whom, and for what reasons.
James Madison, the Father of the Constitution, proudly said that in no clause the Constitution "can more wisdom be found" than in the Declare War Clause, which, Madison said, reserved exclusively to the Congress the right to decide about war and peace. He explained that had that right been authorized to the President as well, the temptation to go to war would be too big for any one man to resist.
As for the "Commander-in-Chief clause", that clause was explained (to assuage fears that the President would be allowed to wage wars unilaterally) in Federalist #69 by Alexander Hamilton. Hamilton said that the role of CINC would be merely honorary and that the President's prerogatives would be nominally the same as those of the British king and in practice smaller than that - merely honorary.
As for claims that "no one complained that the Korean War was unconstitutional", it doesn't change the fact that it was. A long history of past wrongdoings doesn't make new wrongdoings constitutional. It doesn't change the fact that the Libyan War is unconstitutional.
Last but not least, as Antle correctly pointed out, we conservatives CANNOT credibly argue against unconstitutional domestic schemes (like socialized medicine) if we also do not argue against unconstitutional wars. In 2012, Obama will have unlimited financial resources with which to make that point.
bd57| 3.30.11 @ 4:39PM
Jim,
As the author of the comment, thanks for treating the argument fairly & for the historical research.
As your post makes clear, the question is more complicated than "Has Congress declared war or not?" There ARE circumstances when the use of force doesn't require explicit Congressional authorization and there are situations where the use of force can be considered Congressionally "authorized" short of a formal declaration of war.
My point - which remains - is it is far more credible to argue "Obama's exceeded his authority" than it is to argue "no declaration of war, no force."
We're never going to convince people who have made their mind up and are on the other side. Those who are open to persuasion are our audience; in my experience, "never" or "always" arguments on debatable topics don't go over well with them.
W. James Antle III | 3.30.11 @ 6:03PM
bd57: I've addressed some of this in the comments thread on my shorter post, but remember that this whole debate was sparked by a John Yoo post. Yoo defended the constitutionality of Obama's Libya actions and in effect argued the president has the power to attack any country he wants, and if Congress doesn't like it they can just defund the military operation.
There simply is no constitutional basis for this belief, and if it weren't for the accident of history that Republicans frequently held the presidency but rarely the Congress during a critical juncture of the Cold War, no conservative would defend this theory.
I've never argued that a congressional authorization of force is less constitutional than a formal declaration of war and I've never denied that some limited defensive military operations can be initiated by the president. It is Yoo who is making an "always" argument and saying there is no line, not me.
BD57| 3.30.11 @ 7:12PM
Jim,
I stand - and accept - correction on that point.
If Yoo made an absolutist argument, he's wrong.
Kingofthenet| 3.30.11 @ 5:14PM
Well, come on all of you, big strong men,
Uncle Sam needs your help again.
He's got himself in a terrible jam
Way down yonder in Libya
So put down your books and pick up a gun,
We're gonna have a whole lotta fun.
And it's one, two, three,
What are we fighting for ?
Don't ask me, I don't give a damn,
Next stop is Tripoli;
And it's five, six, seven,
Open up the pearly gates,
Well there ain't no time to wonder why,
Whoopee! we're all gonna die.
Come on Wall Street, don't be slow,
Why man, this is war au-go-go
There's plenty good money to be made
By supplying the Army with the tools of its trade,
But just hope and pray that if they drop the bomb,
They drop it on Gaddafi.