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.
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