John Tabin weighs in on the war powers debate. Before we get to his main question, let's clear up a few things. I began my posts addressing one specific claim: that presidents have always interpreted the Constitution to allow them to initiate wars without congressional authorization and most U.S. wars have proceeded as such. I countered that in a large majority of cases where the U.S. has initiated hostilities against a foreign power, it has done so with congressional authorization. This was especially true in the conflicts closest to the ratification of the Constitution, despite claims to the contrary.
From there, I'm arguing that assertions of presidential war powers are getting even more remote from the commander-in-chief power as we enter each new undeclared war. (I'm using "undeclared" here as a shorthand for wars that weren't authorized by Congress; I've already argued that congressional authorization short of a formal declaration of war is constitutionally sufficient.) We were clearly in a Cold War against the Soviet Union in 1950. We may now be in a war against terrorism in which Arab political outcomes are important, but this is a murkier affair -- in Libya, for instance, we are fighting on behalf of rebels who include in their ranks jihadis who fought Americans in Afghanistan and Iraq; we are fighting against a dictator we not very long ago proclaimed was cooperating in the war on terror. Obama, by the way, made pretty straightforwardly humanitarian arguments for the Libya war, rather than emphasizing national security interests stemming from the war on terror. In fact, he acknowledged the other night we were not directly or imminently threatened.
But no, the existence of a larger geopolitical struggle is not "dispositive for Constitutional purposes." Harry Truman should have had congressional authorization rather than UN sanction for the Korean War; Barack Obama should have had congressional authorization rather than UN sanction for the Libya war. I'm simply using the different circumstances to illustrate how open-ended the presidential assertions of war powers have become.
As for the Indian Wars, a case could be made that more congressional authorization was needed. George Washington thought as much, limiting his own operations against Indian tribes to mostly defensive measures. "The Constitution vests the power of declaring war with Congress," Washington said, "therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure." But even though the presidents fighting Indian tribes were technically engaged in hostilities with foreign powers, they were protecting settlers who were U.S. citizens and land that was frequently being asserted as U.S. territory. That's a constitutional gray area in a way that attacking Libya is not. Suffice it to say that if the Libyans were an indigenous people living on U.S. soil occasionally raiding Omaha, I'd view the president as being on much firmer constitutional ground. Custer's last stand doesn't need to be the Constitution's.
So what about Yoo's op-ed, which is more detailed than his Corner post? He makes some uncontroversial arguments about the president's power to manage war that I don't really disagree with while transforming this power into the ability to initiate war. Let's leave aside for a moment the semantics about the meaning of "declaring" war. The same James Madison Yoo quotes in his op-ed also wrote, "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."
Alexander Hamilton, no shrinking violet when it came to federal power, argued in Federalist #69 that the president's power "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, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature."
The concern that a single man would have the power to take the country to war was so frequently expressed at the Constitutional Convention and in the ratification debates, it's frankly mystifying to read an "originalist" argument that this is the constitutional design. "Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object," Abraham Lincoln later explained, reflecting what was still the conventional wisdom in his time. "This, our [Constitutional] Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."
It seems to me that a genuinely originalist case for an unenumerated power needs to rely on a lot more than creating uncertainty about what "commander-in-chief" and "declare war" mean. And that would be a lot more contemporaneous statements corroborating the purported point of the op-ed's Madison quote.
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