from The Water's Edge

Is Operation Odyssey Dawn Constitutional? Part III

March 31, 2011

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U.S. President Bill Clinton beside Gen. Hugh Shelton, then chairman of the Joint Chiefs of Staff, explaining the U.S. and NATO mission in Kosovo on April 1, 1999. (Win McNamee/courtesy Reuters)
Then President Bill Clinton beside Gen. Hugh Shelton, then chairman of the Joint Chiefs of Staff, explaining the U.S. and NATO mission in Kosovo on April 1, 1999. (Win McNamee/courtesy Reuters)

Yesterday I noted that many legal scholars believe that while the text of the Constitution may not have given presidents an independent war-making authority, they have acquired that through two hundred years of practice.

The notion that presidential powers have evolved over time strikes proponents of original intent—the idea that the Constitution should be interpreted in terms of its text and what the Framers had in mind when they wrote it—as heresy. So don’t expect Ron Paul to sign up to the “he’s-earned-it” argument any time soon. But if you see the Constitution as a living or evolving document, then the thought that the Constitution’s meaning might change over time isn’t shocking.

(On a side note, many Democrats favor original intent on foreign policy and embrace the idea of a living Constitution on domestic policy. Republicans go the other way. It’s not surprising that the orientations of both parties align with their substantive policy preferences. Democrats like activist presidents on domestic policy; and Republicans like them on foreign policy. It could be that our constitutional preferences drive our substantive ones. The opposite is more likely to be true, however. Most of us at heart belong to the results-oriented school of constitutional interpretation, that is, we like rules that give us what we want.)

The claim that presidents have gained war-making authority over time is not that because one president has acted on his own initiative that they all can in the future. The claim is more specific and demanding. It is that presidential war-making meets the Frankfurter-Rehnquist test: it has been systematic, unbroken, done openly, and never before questioned.

So on to the history. Proponents of the he’s-earned-it argument contend that presidents have initiated dozens upon dozens of hostilities over the past two hundred-plus years. There are many such lists, and the numbers vary. Jack Goldsmith cites more more than a hundred cases. In 1971, Senator Barry M. Goldwater (R-Ariz.) identified 150 instances in which the president used his own authority to send American troops into combat. Over the next two years he increased the number, first to 192 cases then to 204. In 1983, Ronald Reagan cited 125 precedents for his decision to send American troops to Lebanon.

My immediate reaction to such lists is, “Wow, Americans have gone to war a lot more than I recall from tenth grade history.” My second reaction is to put on my social science hat and plow through the specific cases. When you do that you discover six glaring problems.

1.  Selection Bias.  Looking only at instances in which U.S. military forces were used tilts the discussion in favor of the president. Why? Because the question is what practice has been over the past two hundred years and not how many times presidents have ordered U.S. troops into combat. Establishing what practice has been requires determining cases in which presidents have acted on their own accord as well as instances in which a  president wanted to act, believed he needed Congress’s consent but couldn’t get it, and so decided not to use force at all. As I noted in my first post in this series, there are plenty of instances in the nineteenth century in which presidents deferred to Congress. Ignoring these instances is shabby scholarship.

2. Many Cases Don’t Involve Combat. Senator Goldwater once noted when discussing his list that “nearly half involved actual fighting.” That’s a problem because the debate is about the president’s power to initiate hostilities, not about his power to do other things overseas. So Theodore Roosevelt’s decision to send U.S. warships into Panamanian waters to support Panama’s secession from Colombia is historically interesting but irrelevant. No shots were fired, and there were no casualties. Similarly, Goldsmith offers up U.S. actions in Haiti in 1994, Bosnia in 1995, and Haiti again in 2004 to support his claim that Obama can order attacks on Libya. But in each of three instances U.S. troops entered the the country peacefully, not shooting their way in.

So proponents of the he’s-earned-it school engage, intentionally or not, in a bit of sleight of hand. They talk about the use of military force but for evidence they point to instances of the use of military forces. The presence or absence of that one “s” carries a lot of constitutional import. Legal scholars of all stripes agree that presidents have considerable latitude to order U.S. troops to deploy (and to defend themselves). That’s one of the clear consequences of being commander in chief. The Framers didn’t want Congress managing troops movements.

Doesn’t it matter that in some instances presidential action could have precipitated hostilities or war? For our discussion, no. That is not to say that it isn’t an important constitutional question. It is. It came up early on in American history, and it split two of the most prominent founders, James Madison and Alexander Hamilton, in the Pacificus-Helvidius debate. Madison argued that presidents should not take steps that would constrain Congress’s ability to exercise its constitutional powers. Hamilton argued that presidents had the right to act in ways that might establish  an “antecedent state of things” that could constrain Congress politically if not legally. Whatever the merits of Madison’s argument, Hamilton won the day as matter of practice. Still, a president’s ability to risk a war doesn’t prove that he has the authority to begin a war.

3. Many Cases Don’t Involve Sovereign States, Were Done Pursuant to Statute, Done Without the President’s Knowledge, Or a Combination of All Three. The he’s-earned-it lists contain lots of cases of U.S. troops attacking brigands, pirates, and other stateless groups. That’s not the same thing as attacking a sovereign state.  Moreover, in many if not most of these cases, U.S. troops were acting pursuant to laws passed by Congress, or they acted without the president’s direct knowledge. (Many of these cases come from the nineteenth century when great distances combined with rudimentary communications technology to give military commanders considerable autonomy.) Actions taken with Congress’s advanced consent or without the president’s blessing hardly provide evidence of independent presidential authority.

4. Presidents at the Time Weren’t Claiming the Powers that He’s-Earned-It Proponents Want to Give Them. The lists of presidential war-making would be more compelling if the presidents who were supposedly setting precedents were arguing that they were carving out new powers. But before World War II, at least, they weren’t. I’ve already covered presidential attitudes in the nineteenth century. The first half of the twentieth century wasn’t much different. For example, in defending President Taft’s decision to intervene in Nicaragua in 1912, the State Department solicitor general made no claim that the president had any independent war-making authority. Three decades later President Franklin Roosevelt was hardly any more forward leaning. In more than eighty press conferences in 1941, he “never once alleged special powers in foreign affairs as commander in chief.”

5. Presidential War-Making Without Congressional Authorization Has Not Been an Uninterrupted Practice, Even in the Nearly Seven Decades Since World War II. Congress clearly and unambiguously authorized the four major American wars of my lifetime—Vietnam, the Gulf War, the Afghanistan War, and the Iraq War. Some critics complain that Congress did not “declare war” in any of these instances. But as the late great legal scholar John Hart Ely argued in his superb book, War and Responsibility, the Constitution does not mandate the form in which Congress authorizes hostilities. It only requires that it pass a law authorizing them.

Does it matter, at least in constitutional terms, that Lyndon Johnson, George H.W. Bush, and George W. Bush all went to Congress for political reasons rather than for legal ones? No. A president’s motives in going to Congress are no more relevant here than the fact that at least some lawmakers who voted to use force in Vietnam, Afghanistan, or Iraq didn’t think there would be a war or that any war that did begin would end quickly. What matters is what each branch does, not not what officials in each branch thought.

What about the Kosovo War, which in many respects most closely resembles Operation Odyssey Dawn? Congress did not provide prior approval; Bill Clinton ordered U.S. participation in NATO’s bombing campaign against Serbia on his own initiative. House Democrats subsequently introduced a non-binding resolution that expressed support for the bombing campaign. The House voted that measure down, largely along party lines. A week later, the House approved (and the Senate subsequently agreed) to appropriate the funds the military needed to prosecute the fight. House Republicans argued that they were not voting to approve the war. As Tom Delay (R-Tex.), the then-majority whip, put it:

While we may not support the President’s ill-advised war, we do support our troops.

Those words might have played well with voters back in Texas, but it’s hard to see why any court would view Congress’s decision to appropriate money to fund a war as anything but its approval of the war. Again, the Constitution does not mandate the form of a congressional authorization.

6. The War Powers Resolution Constitutes a Congressional Objection and Statutory Authority for Presidential Action. Congress passed the War Powers Resolution in 1973 over Richard Nixon’s veto. (The irony of the War Powers Resolution was that it passed to prevent another Vietnam, a war Congress approved.) The resolution may have turned out to be a “toy handcuff” as Arthur Schlesinger, Jr., put it, but it clearly put Congress on record as objecting to the practice of presidential wars. Moreover, it provides a statutory basis for most if not all of the hostilities the United States has engaged in over the past four decades. Presidents can’t claim, say, that the invasions of Grenada or Panama constitute evidence of independent presidential war-making authority when Congress has passed a law that effectively gives the White House a sixty-day blank check to wage war.

So where does this leave us? Well, over the course of two centuries we have exactly one case of a full-scale war that a president fought without congressional authorization–Korea. In ordering U.S. troops to intervene against the North Korean invasion, President Harry Truman deliberately chose not to ask Congress to declare war or otherwise authorize American participation. He did so in good part because Senate Majority Leader Scott Lucas urged him not to. Why? Because, as Dean Acheson later wrote, Lucas thought that “the vast majority in Congress were satisfied and the irreconcilable minority could not be won over.”

After that you can find cases of the executive branch initiating minor hostilities without Congress’s blessing. The exact number of such cases depends on arcane arguments about what constitutes statutory authority and definitions of what constitutes “hostilities.” The common characteristics of these cases were that use of force was minor and brief, resulting in few or no casualties on either side.

What the historical record doesn’t show is what the Frankfurter-Rehnquist standard requires for any claim that the president can initiate war or major “kinetic military actions” on his own authority: a systematic and unbroken record of presidential war-making done openly and never before questioned. To the contrary, Congress frequently gave its blessing and with the War Powers Resolution made clear its objection to the idea of independent war-making authority.

So the argument for Operation Odyssey Dawn comes down to whether you think it falls into the category of minor, time-limited military actions that presidents have historically ordered or whether it falls onto the other side of the line, into the category of hostilities presidents aren’t authorized to initiate on their own. Before I tackle that issue, I want to answer two other questions: Can President Obama claim that UN Security Council Resolution 1973 authorized Operation Odyssey Dawn? And why don’t courts settle the issue of which branch has the war power?