The Reagan Wars

A Constitutional Perspective On War Powers And The Presidency

David Locke Hall

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9780367295431
• eBook ISBN:
  9781000305074
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Ronald Reagan's term in office was punctuated by four significant employments of military force: the deployment of Marines to Lebanon; the intervention in Grenada; the air strikes against Libya; and the deployment of naval forces to the Persian Gulf. In the aftermath of each of these military operations, critics questioned the constitutional basis for such unilateral presidential war-making, arguing that Congress alone is empowered to declare war. Debates over whether the President failed to comply with the statutory requirements of the War Powers Resolution further complicated these constitutional disagreements. In The Reagan Wars, David Hall seeks to overcome a key source of confusion in these heated debates—the failure to distinguish between the wisdom of Reagan's actions and their legality. He demonstrates that the circumstances under which the Constitution permits unilateral presidential war-making were present when President Reagan waged war between 1980 and 1988. Hall first considers the thinking of the Constitution's Framers on the question of war powers and the subsequent two hundred years of judicial interpretation regarding the proper balance between congressional and presidential authority to make war. In light of this historical background, he then closely examines the facts and the legal circumstances of each of the four "Reagan wars." Hall's thought-provoking conclusions deserve the attention of anyone interested in the role of the Constitution in U.S. foreign policy-making.

Part One
A Clash of Wills: The Constitutional Balance of War Powers

1
The Intent of the Framers

The Articles of Confederation and the Constitutional Convention

Following the declaration by the American colonies of independence from the British Crown, the Continental Congress enacted the Articles of Confederation in 1777. From their ratification in 1781 until 1787, the Articles served to guide Congress and the several states in the governance of the infant nation. In 1787, the Articles were replaced by the United States Constitution.¹

The differences between the Articles of Confederation and the Constitution are, of course, numerous. The most fundamental difference is that, while the Articles allocated power among the states and between the federal government and the states, the Constitution allocated power among the three branches of the federal government, reserving unallocated powers to the states.

The Articles of Confederation, like the Constitution, provided for a congressional declaration of war.² The Articles of Confederation were a failure. The problems associated with the Articles related to the unstable division of power between Congress and the several states, exacerbated by the absence from the Articles of a provision for a federal executive. As a result, the infant nation's foreign affairs were chaotic. Congress had the exclusive power to enter into treaties but had no way of enforcing the exclusivity of this authority. As a result, Georgia, for example, signed three treaties with the Creek nation in defiance of Congress.³ In another embarrassing episode, Congress discovered, after it entered into the Treaty of Hopewell, which returned land claimed by North Carolina to the Cherokee nation, that North Carolina had already sold the land to its citizens. Virginia concluded a treaty with France and closed a loan with Spain.⁴

Such chaos did little to enhance national security. The strategic position of the United States before 1787 was precarious. The entire western frontier was claimed by Indian nations. To the northwest, the British occupied garrisons along the Great Lakes. Even in the northeast, British sympathizers in Canada threatened to seize land in present-day Maine.⁵ To the south, the Spanish claimed Florida as well as access to the Mississippi River.⁶

As a result of these persistent border threats, the years preceding the Constitution were violent and unstable. State militias routinely usurped the federal war-making power in unauthorized actions against the Indian nations. In 1786, for example, the Virginia militia marched against the Shawnee to enforce Virginia's claims to land on the Miami River.⁷ In Kentucky, actions to enforce American claims to land claimed by Indians led to the deaths of approximately 1,500 Kentuckians between 1783 and 1790.⁸ With British support, Joseph Brant, a Mohawk chieftain who was also a captain in the British Army, led Mohawk forces against American settlers in the Mohawk Valley and along the Pennsylvania-New York border.⁹

In an especially obnoxious example of a major power thumbing its nose at the infant United States, Great Britain continued to occupy forts in U.S. territory after the 1783 peace treaty. The British had agreed by the 1783 treaty to surrender occupied garrisons in the Great Lakes region. As the ostensible result of America's failure to pay pre-war debts as the treaty required, the British refused to abandon the garrisons.¹⁰ The garrisons commanded choke-points throughout the Great Lakes region and were therefore of strategic importance in preserving Britain's monopoly on the fur trade.¹¹ Some have suggested that the British never intended to give up the garrisons, intending instead to establish a buffer state on the American northwestern frontier.¹² Whatever the intentions of the British were, the fledgling United States lacked the ability to preserve its own collective interests along the border.

The failure of the Articles of Confederation to serve the national interest induced delegates from the several states to travel to Philadelphia in 1787 to devise a superior plan for national unity. One major issue at the Constitutional Convention concerned the distribution of power from the states to the federal government. Therefore, any inquiry such as this into the distribution of war powers between the President and Congress is hampered by the fact that allocation of power among the branches of the federal government was not the only issue discussed at the Convention.

Furthermore, the meaning of the records of the Constitutional Convention in the war powers context is not always obvious. One commentator has suggested that the interpretation of the constitutional war powers requries the "skills of. . . the Oracle of Apollo at Delphi."¹³ The reasons for the record's ambiguity are, of course, many.¹⁴ Among them is the fact that the Framers did not come to the Convention with a unified vision of federal governance. Differences on the critical issue of executive power can be seen by examining the various plans introduced by the delegates during the summer of 1787. On May 29, 1787, just before the debate on executive power opened, Edmund Randolph proposed the Virginia Plan. The Virginia Plan did not address expressly the issue of war powers or their distribution between the executive and legislative branches. Indeed, the terms of the Virginia Plan were vague even on the most general issues of legislative and executive power. For example, the Virginia Plan described the legislature's power as follows: "National Legislature . . . ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation."¹⁵ This tautology does little to clarify the separation of powers. The Virginia Plan also provided for the election by Congress of a chief executive whose duty was to execute the laws and who was to be granted "executive rights vested in Congress by the Confederation."¹⁶ The "executive rights" to be vested in Congress were not defined. Since the Virginia Plan failed to address executive war-making and foreign affairs powers, it implicitly proposed a weak executive with only indirect authority in the area of foreign relations. The Virginia Plan did not attract much support. To the extent that the Virginia Plan was capable of establishing anything, it would not have established a central government capable of addressing some of the federal problems unsolved by the Articles of Confederation.

Competing with the Virginia Plan was the Pinckney Plan, presented by Charles Pinckney of South Carolina.¹⁷ The Pinckney Plan was more concrete than the Virginia Plan in specifying the powers of the legislative and executive branches. It granted Congress the power to raise an army and the Senate the "sole and exclusive power to declare war and to make treaties and to appoint ambassadors. . . ."¹⁸ The Pinckney Plan also vested the "Executive Power" in a single President, who was named "Commander in chief of the army and navy of the United States and of the militia of the several states. . . ."¹⁹ This proposal was similar to the allocation of power ultimately adopted except that it granted the Senate, not Congress as a whole, the power to declare war and the Senate, not the President, the power to make, as distinct from the power to ratify, treaties.

The debate over the executive power issue commenced on June 1, 1787. The initial focus of discussion was the question of whether the executive should be a single individual or a council. Randolph, the sponsor of the Virginia Plan, vigorously opposed vesting executive power in a single person, who would become "the fetus of monarchy."²⁰ He proposed a council of three men.

This idea of a collective executive was not greeted enthusiastically by Elbridge Gerry of Massachusetts, who "was at a loss to discover the policy of three members of the executive." He continued, "It would be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, or army, or a navy. It would be a general with three heads."²¹ James Wilson of Pennsylvania acknowledged the legitimacy of Randolph's fears, but asserted that a single executive could avoid the hazards of monarchy.²²

Charles Pinckney preferred a single executive, but "was afraid the Executive powers . ., might extend to peace and war . . . which would render the Executive a monarchy, of the worst kind, to wit an elective one."²³ Wilson stated: "He did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive Powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c."²⁴ Thus was the general question of executive organization joined to the war powers issue.

James Madison considered the discussion of whether the executive power should be vested in a single person to be premature. He thought the most reasonable first step was to define the executive power. He suggested a compromise of a "single Executive of long duration with a council, with liberty to depart from their opinion at his peril."²⁵ Madison did note that, in any case, the executive's powers should not "include the rights of war and peace. . . ."²⁶

A third proposal, the New Jersey Plan, was presented on June 15, 1787 by William Paterson, Like the Virginia and Pinckney Plans, the New Jersey Plan avoided addressing expressly the issue of executive war powers. The New Jersey Plan did propose a plural Executive, which was authorized collectively "to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General, or in any other capacity."²⁷ Paterson clearly feared a military dictatorship. Pinckney addressed this issue on August 20, when he declared, "The military shall always be subordinate to the Civil power. . . ."²⁸

A fo...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Maps
• Preface
• Introduction
• PART ONE A Clash of Wills: The Constitutional Balance of War Powers
• PART TWO The Reagan Wars, 1980-1988
• About the Book and Author
• Index