War Powers

The Politics of Constitutional Authority

Mariah Zeisberg

• Publisher: Princeton University Press
• Year: 2013
• ISBN:
  9781400846771
• Topic: Politique et relations internationales
• Subtopic: Gouvernement américain

Armed interventions in Libya, Haiti, Iraq, Vietnam, and Korea challenged the US president and Congress with a core question of constitutional interpretation: does the president, or Congress, have constitutional authority to take the country to war? War Powers argues that the Constitution doesn't offer a single legal answer to that question. But its structure and values indicate a vision of a well-functioning constitutional politics, one that enables the branches of government themselves to generate good answers to this question for the circumstances of their own times.
Mariah Zeisberg shows that what matters is not that the branches enact the same constitutional settlement for all conditions, but instead how well they bring their distinctive governing capacities to bear on their interpretive work in context. Because the branches legitimately approach constitutional questions in different ways, interpretive conflicts between them can sometimes indicate a successful rather than deficient interpretive politics. Zeisberg argues for a set of distinctive constitutional standards for evaluating the branches and their relationship to one another, and she demonstrates how observers and officials can use those standards to evaluate the branches' constitutional politics. With cases ranging from the Mexican War and World War II to the Cold War, Cuban Missile Crisis, and Iran-Contra scandal, War Powers reinterprets central controversies of war powers scholarship and advances a new way of evaluating the constitutional behavior of officials outside of the judiciary.

Chapter 1

WHO HAS AUTHORITY TO TAKE THE COUNTRY TO WAR?

---

In early 2011 President Quaddafi’s suppression of popular uprisings in Libya began to arouse concern domestically and abroad. Attention began to focus on what, if any, the US response would be. By late February the UN Security Council adopted a resolution expressing “grave concern” about Libya, and the US Senate unanimously approved a resolution calling for the Security Council to impose a Libyan no-fly zone.¹ By March, the Security Council had authorized member states to use force to protect Libyan civilians, and the House simmered with dispute about the president’s constitutional war authority.² On March 18 President Obama deployed troops to Libya.

The president’s domestic authority to intervene in Libya was conditioned by two authoritative texts: the US Constitution, which grants him the power to command the military, and Congress the power to declare war; and the War Powers Resolution of 1973 (WPR), which creates procedural and reporting requirements for deployments. The WPR declares that presidents may introduce US armed forces into “hostilities” “only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States.”³ With none of these conditions in place, the president’s legal authority to intervene in Libya under the WPR was suspect from the beginning.⁴ Nonetheless, the WPR’s procedural requirements created a set of structured expectations about how the branches would respond to one another over the Libyan incursion. On March 21 Obama reported to Congress “consistent with the War Powers Resolution.”⁵ When US military operations continued past the time horizons of the WPR, still without legislative authorization, members of Congress challenged the president’s constitutional and statutory faithfulness.⁶

Instead of either challenging the constitutionality of the WPR, or discontinuing operations, the executive branch argued that the deployments did not amount either to “hostilities” or to “war in the constitutional sense.” By early June, a restive House resolved that the Libyan mission had not been legislatively authorized and stated the legislature’s prerogative to withdraw funding.⁷ Hundreds of senators and representatives expressed constitutional concerns, but this did not translate into a willingness to either authorize or shut down operations.⁸

The legislature’s challenge and the president’s response constitute a revealing window into characteristic features of a constitutional war powers debate. Consider first that the debate was nowhere judicialized. Members of the House sued the president, but the US District Court threw the case out, noting its “frustration” at being asked to hear the case given long-standing precedent.⁹ This controversy would be decided through nonjudicial politics. Indeed, the politics of the moment were on vivid display in the reasoning of three prominent executive branch officials—President Obama, Vice President Biden, and Secretary of State Clinton—all of whom argued that this use of the military was constitutional, but all of whom, when they were Democratic senators challenging a Republican president, had emphasized the importance of legislative authorization for war.¹⁰

The debate pivoted around the meaning of “war”—in the language of the Office of Legal Counsel (OLC), “war for constitutional purposes.”¹¹ Despite air strikes and remote drones, the administration claimed that the Libyan intervention was neither “war” nor “hostilities.”¹² President Obama interpreted the meaning of “war” and “hostilities” not through international law, or judicial precedent, or close readings of the Constitution’s text. Rather, the administration invoked policy concerns, structural and governance reasons, and historic precedent. State Department legal advisor Harold Koh told Congress that it should interpret the WPR’s language in light of the security consequences of their chosen readings, emphasizing that a “mechanical reading of the statute could lead to unintended automatic cutoffs . . . where more flexibility is required.”¹³ The administration described the importance of US intervention for regional security, for UN and NATO credibility, for humanitarian needs, and for international alliances, especially given the foreign policy imperatives of the Arab Spring. The OLC made these policy reasons one element of a constitutional test, arguing that the president’s war authority depended upon whether the intervention served “sufficiently important national interests.”¹⁴

The administration also gave reasons that spoke to the governing capacities of the branches. For example, it cited the president’s capacity to respond to “rapidly evolving military and diplomatic circumstances.”¹⁵ It emphasized that costs and casualties would be low and that the administration would not ask Congress for appropriations.¹⁶ Apparently concerned about policy intersections between Libya and other legislative security priorities, the administration argued that the intervention would have few policy consequences elsewhere. For example, the intervention would not impact operations in Iraq and Afghanistan, nor was it likely to escalate.¹⁷ The OLC argued that only operations sufficiently extensive in “nature, scope, and duration” required legislative approval.¹⁸ Finally, its citation of OLC reasoning during the Clinton administration amounted to a precedent-based claim.¹⁹

To argue for the constitutionality of a president’s deployment because of its importance for domestic security interests would seem to violate one central effort of constitutional law: to seek answers about procedural authority precisely so as to avoid controversy over topics like Libya’s security significance. Legal objections either condemned Obama for playing fast and loose with constitutional and statutory language, or challenged the integrity of the OLC’s legal process.²⁰ No constitutional scholarship found Obama’s substantive claims worth investigating: for example, whether the Libyan intervention actually was as significant to regional peace, NATO and UN credibility, and US domestic interests as Obama claimed.²¹ Nor did constitutional scholars engage the structural arguments that Obama offered for presidential war governance. Perceiving that the administration was being strategic in its interpretation of constitutional language, some argued that the War Powers Resolution—and perhaps the Constitution itself—were shoddy in their legal draftsmanship, especially in allocating interbranch war authority with reference to a set of slippery terms (“war,” “hostilities”) that have little definitive content.²²

It is true that the US Constitution’s allocation of the power to initiate hostilities is ambiguous.²³ That the Constitution empowers a federal government to wage war is beyond dispute.²⁴ But which branch has the power to initiate hostilities? Congress is vested with the power to “declare war,” a power whose scope could range from the simple legal power of naming, to an exclusive power to authorize any and all military confrontation. Congress can also pass laws and appropriate funds, regulate the military, and create the structure of the executive bureaucracy, including security-related bureaus. Finally, Congress is vested with the power to “issue letters of marque and reprisal,” a common form of limited and undeclared war of the eighteenth century.²⁵ Yet the president is granted a vague “executive power,” and the Constitution designates him “Commander in Chief . . . when called into the actual Service of the United States.” Unlike the legislature and judiciary, the presidency never adjourns, and the structure of the branch is comparatively efficient and unitary. Article II Section 1 also requires the president to swear to “preserve, protect, and defend” the Constitution. These features imply some independent war powers, and the oath implies that those powers are for defensive purposes. The contours of those powers, and the conditions under which they may be used, are never specified. Nor do originalist sources reveal any bright lines.²⁶ Justice Jackson said that the answer to this question “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”²⁷

The Constitution also fails to provide for one authoritative institution to settle this controversy. Whereas the South African Constitution designates its Constitutional Court as the “highest court on all constitutional matters,” and specifies that the Court “makes the final decision whether a matter is a constitutional matter,”²⁸ the US Constitution never concretely establishes judicial review. The power of the US Supreme Court to interpret the Constitution is implied, not explicit, and its origins rest in judicial constitutional reasoning that has been sustained and reinforced by other political actors, rather than being mandated, or even explicitly contemplated, by the text.²⁹ In its constructions of constitutional meaning, the judiciary has chosen to limit its scrutiny of “political questions” like the nature of constitutionally authoritative procedures for going to war.³⁰

In the domain of war powers, the agents who have advanced and judged claims of war authority are not courts but the elected branches themselves as they formulate and defend their policies to one another and to the electorate. They have often done so in ways that are transparently linked to institutional or partisan policy advantage. Presidents in the twentieth century have made vast claims for independent war-making authority. Truman, Ford, Kennedy, Johnson, Nixon, Reagan, George H. W. Bush, Clinton, and Obama all claimed the power to initiate hostilities without congressional authorization—a claim premised on the executive’s authority to decide on his own what constitutes a threat and an appropriate response to threat. Although it was unusual for nineteenth-century presidents to state it explicitly, presidents from Jefferson to Polk to Lincoln to Wilson behaved as if congressional authorization for military hostilities was optional. In fact, while George W. Bush is remembered for bellicosity, his effort to achieve congressional authorization to fight wars in Iraq and Afghanistan was notably sensitive to legislative prerogatives in war. Many presidents have behaved as though whether to engage in military hostilities is not a relevant question for Congress.

Congress, too, has been actively engaged on its own behalf. Early Congresses made assertions of constitutional authority that are breathtaking to modern ears. The debate between Pacificus and Helvidius, one of the first showdowns between the branches, concerned whether or not it is constitutionally appropriate for the president to offer a point of view about how a treaty should be interpreted. Partisans of Congress worried that a president’s speech about the meaning of a defense treaty would unduly contort the legislature’s deliberative space. Many of Congress’s esteemed members—Senators Vandenberg, Nye, Taft, Mansfield, Fulbright—were known for their sustained challenges to executive war authority. In 1973 congressional solicitude for its own institutional honor reached a new level of mobilization in the War Powers Resolution. The Iran-Contra hearings and contemporary agitation about executive authority for interventions in Libya show us that even in the age of the “imperial presidency,” the legislative branch has its defenders.

Both the Constitution’s text—which apparently commits the elaboration of the meaning of “war” to a potentially rivalrous interbranch relationship—and the history of war powers debates, where the branches’ interpretive claims are transparently driven by partisan, institutional, and policy rivalries, generate one common conclusion: core features of this area of constitutional policy do not intersect well with standard presumptions about the conditions of faithful constitutional interpretation. Conventional beliefs about constitutional reasoning emphasize neutrality, impartial review, and the value of making policy in conformity with the Constitution’s procedural requirements as specified either explicitly in the text or through judicial construction. With underdeterminate constitutional language, an interpretive process driven by the politics of motivated and strategic officeholders, and the absence of a final arbiter, the structural conditions of the war powers debate are repugnant to core conditions thought necessary for achieving good practices of constitutional interpretation.³¹

The idea that constitutional fidelity means adhering to the meaning of determinate text, or adhering to the decisions of one authoritative, impartial adjudicator is sustained by reference to an idea about constitutional authority called the settlement thesis. The settlement thesis claims that the very point of constitutions is to resolve conflict over basic political questions like the allocation of power between institutions. For th...