Obama at War

Congress and the Imperial Presidency

Ryan C. Hendrickson

• Publisher: The University Press of Kentucky
• Year: 2015
• Print ISBN: 9780813160948
• eBook ISBN: 9780813160955
• Topic: Politics & International Relations
• Subtopic: Military & Maritime History
• Index: Politics & International Relations

During President Barack Obama's first term in office, the United States expanded its military presence in Afghanistan and increased drone missile strikes across Pakistan, Yemen, and Somalia. The administration also deployed the military to combat piracy in the Indian Ocean, engaged in a sustained bombing operation in Libya, and deployed U.S. Special Forces in Central Africa to capture or kill Joseph Kony. In these cases, President Obama decided to use force without congressional approval. Yet, this increased executive power has not been achieved simply by the presidential assertion of such powers. It has also been supported by a group of senators and representatives who, for political reasons that stem from constant campaigning, seek to avoid responsibility for military action abroad.

In this revealing book, Ryan C. Hendrickson examines President Obama's use of force in his first term with four major case studies. He demonstrates that, much like his predecessors, Obama has protected the executive branch's right not only to command, but also to determine when and where American forces are deployed. He also considers the voting records of Democrat John Kerry and Republican John McCain in the Senate, detailing how both men have played leading roles in empowering the commander-in-chief while limiting Congress's influence on military decision-making.

Obama at War establishes that the imperial presidency poses significant foreign policy risks, and concludes with possible solutions to restore a more meaningful balance of power. The first book on the constitutional and political relationship between President Obama and the U.S. Congress and the use of military force, this timely reassessment of war powers provides a lucid examination of executive privilege and legislative deference in the modern American republic.

1

The War Powers Framework for the Obama Presidency

We have been sliding for 70 years to a situation where Congress has nothing to do with the decision about whether to go to war or not, and the president is becoming an absolute monarch. And we must put a stop to that right now, if we don’t want to become an empire instead of a Republic.

—Congressman Jerrold Nadler (D–N.Y.), Cong. Rec. H4535–6 (June 24, 2011)

Our Founders understood that waging war is not something that should be taken lightly, which is why Article 1, Section 8 of the United States Constitution gives Congress—not the president—the authority to declare war. This was meant to be an important check on presidential power. The last thing the Founders wanted was an out-of-control executive branch engaging in unnecessary and unpopular wars without so much as a Congressional debate. … Unfortunately, that’s exactly the situation we have today in Libya.

—Congressman Ron Paul (R–Tex.), “Why I’m Suing the Obama Administration over Libya,” Daily Caller, June 16, 2011

President Barack Obama’s military actions abroad have produced bipartisan concern. Such voices were especially loud when Obama engaged in military action in Libya in 2011; he maintained that the Constitution permitted him to use force under his authority without specific congressional approval. Many members of Congress, constitutional experts, and some journalists argued that Obama had abused his authority as commander in chief.¹ When bipartisan challenges were raised, including by those who argued that the WPR had been violated, Obama dismissively referred to his critics as making “noise about the process” and that “a lot of this fuss is politics.”²

Many would contend that today the office of the president has grown far more powerful than intended by the nation’s Founding Fathers. Certainly, the current practices of modern commanders in chief differ substantially from the principles created by America’s constitutional framers with respect to the decision to use force abroad. The Constitution provides the president the power to act as the country’s commander in chief, but this power is balanced by a long list of congressional powers that speak directly to the use of force abroad. These constitutional authorities include the powers to declare war, to provide for the common defense, to grant letters of marque and reprisals, to provide and maintain a navy, to suppress insurrections and repel invasions, and to raise and support armies (Art. I, sec. 8). When discussing these powers, especially the power to declare war, James Madison’s notes on the 1787 Constitutional Convention make it clear that the constitutional framers believed that the president may use force unilaterally only to “repel sudden attacks.” Otherwise, the use of force requires congressional approval.³

The history of the constitutional ratification debates is similarly clear. Analysts have identified many instances when the framers and their supporters confirmed the understanding reached at the Constitutional Convention: war could not be entered into solely through a decision from the executive branch; legislative approval was required; the commander in chief was not permitted to act in the same manner as the British monarch, who could take his country to war at will. Although some analysts and politicians, including former deputy assistant attorney general John Yoo and former senators Barry Goldwater (R–Ariz.) and John Tower (R–Tex.), make the case that the Founding Fathers wanted a truly empowered commander in chief who would not be constrained by the legislature in national-security affairs, the historical evidence is far more compelling that the framers feared a monarchical military leader and thus imposed meaningful checks on a president’s independent decision-making authority for war.⁴

For much of the nineteenth century and through nearly half of the twentieth century, presidents tended to respect this basic understanding of checks and balances. In the years before the Second World War, many presidents considered Congress the ultimate decider in determining if and when force would be used. In many instances, presidents respected Congress’s war powers and actively sought explicit legislative approval prior to the use of military force.⁵

Many analysts agree that with the onset of the Cold War Congress began the practice of deferring to presidential military ambitions by granting the commander in chief considerable leeway to defend the United States against perceived communist threats. At the same time, presidents began to make more expansive unilateral assertions of their war powers, such that Congress’s war powers became much less meaningful in restraining U.S. commanders in chief.⁶

Some may contend that U.S. membership in the UN diminished Congress’s constitutional role to check the commander in chief because the UN Security Council can take votes to authorize military action. Yet the legislative history surrounding U.S. membership in the UN is clear. In the United Nations Participation Act of 1945 and through the various committee hearings held prior to joining the UN, congressional leaders explicitly protected their constitutional war powers authority. The United States could not participate in UN-sanctioned military operations without explicit approval from Congress.⁷

Much the same evidence exists for U.S. membership in NATO. Though Article 5 of the Washington Treaty of 1949 calls on all NATO allies to come to the defense of a fellow member upon attack, such an attack is not an immediate and unquestioned trigger for military response from the allies.

The treaty was carefully written so as to respect the U.S. Congress’s war authority, and the legislative deliberations regarding U.S. membership in NATO protected Congress’s constitutional powers.⁸ Nonetheless, American presidents have used UN and NATO endorsements, especially in the post–Cold War era, to make their case for unilateral presidential military authority, which Congress has accepted for the most part. A number of analysts highlight the Korean War in 1950 as a significant and transformative shift in executive–congressional relations, when President Harry Truman argued that a UN Security Council resolution permitted the United States to engage in military operations in Korea without congressional authorization. With the Cold War’s onset and the widely shared belief in Congress and the American public that North Korea’s communists represented a direct threat to the United States, most members of Congress avoided discussions of the United Nations Participation Act of 1945 and instead rallied around Truman’s desire to use force unilaterally.⁹

One effort to rein in the commander in chief out of concern for abuse of presidential authority during the Vietnam War occurred with the passage of the War Powers Resolution in 1973. Among its requirements, the WPR called for the president to “consult” with Congress both prior to and during a military operation. It also required that the president gain congressional approval for a U.S. military operation lasting more than sixty days, with the possibility of an additional thirty-day extension in case of an emergency to get legislative approval. The president was also required to notify Congress in writing within forty-eight hours of the onset of military operations, which applied to all armed forces when engaged in “hostilities.”¹⁰

Though the WPR was arguably well intentioned as an effort to control the commander in chief in future military operations, much research notes the deleterious effect it has had on Congress’s war powers, which has led to the further empowerment of the commander in chief. Since its passage, all presidents have generally viewed the WPR as an unconstitutional infringement of their own perceived military powers.¹¹ In practice and in various efforts to circumvent the resolution, presidents have utilized expansive definitions of the term consult to avoid meaningful dialogue with Congress. Many major military operations, including President Ronald Reagan’s use of force in Grenada in 1983 and President George H. W. Bush’s invasion of Panama in 1989, fell well within the sixty-day time line. Moreover, presidents have often used semantics to insulate themselves from the language of the WPR by arguing that they were not truly engaged in “hostilities.”¹² Recent presidents have even used force beyond the sixty-day limit, including President Bill Clinton, who conducted bombing operations in Kosovo in 1999 for seventy-eight days yet failed to implement the WPR’s requirements. Thus, despite the range of constitutional and statutory powers Congress has available to check the commander in chief, presidential military power has grown considerably since the Second World War.

Even in the context of a presidency in which the chief executive faced an ostensibly assertive Republican Congress for the last six years of his presidency and in an environment in which the president did not have good political standing with the U.S. military and limited prior experience in foreign affairs, Bill Clinton was still able to make unilateral assertions of power as commander in chief, which Congress largely accepted.¹³

The administration of George W. Bush similarly made bold assertions of its alleged independent power to use force abroad. Although Congress specifically granted Bush broad military discretion for the global war on terror and later for the war in Iraq, many elements of the executive–congressional interplay at the time are illustrative of a commander in chief who accepted few restrictions on his perceived authority to use force abroad.¹⁴ For example, in the lead-up to the war in Iraq, the Bush administration initially maintained that it would consult Congress before a war, but that it did not need congressional approval to use force against Saddam Hussein.¹⁵ Upon considerable political pressure from Congress for Bush to request authorization, a vote to use force eventually occurred. Yet Congress’s checking and oversight role in this case was nevertheless quite limited because Congress ceded to the president the actual decision on whether to use force at his own determination.¹⁶

Bush, like Bill Clinton in 1994, also made extensive claims as commander in chief in the U.S. deployment of troops to Haiti in late February 2004 as part of a UN peacekeeping operation. In this case, U.S. forces were deployed to protect Haiti’s presidential palace and to help restore stability to a country that was rapidly unraveling, with insurgents using force against police forces and threatening to overthrow Haitian president Jean-Bertrand Aristide. Nonetheless, when U.S. forces were deployed, few members of Congress questioned the president on the decision to send these troops, and no legislative effort was made to challenge Bush’s asserted authority to send American troops into a civil conflict where conditions were far from stable.¹⁷

One additional example of Congress’s willingness to defer to President Bush’s wishes was evident after the newly elected Democrats gained majority status in the House of Representatives and the Senate after the 2006 midterm elections. After campaigning nationally for an end to the U.S. military presence in Iraq and highlighting the faulty claims advanced by the Bush administration to justify the war, the Democratic-led Congress quickly succumbed to President Bush’s new military plan to increase the U.S. military presence in Iraq through a 20,000-troop surge. This deference, which was fostered by Congress’s democratic leadership, contrasted directly with the Democrats’ electoral promises. Certainly, a number of congressional Democrats expressed their concerns with Bush’s 2007 troop surge,¹⁸ yet the Out of Iraq Caucus still contained only one-third of House Democrats and few of the newly elected Democrats. Most newly elected Democrats rapidly became much more moderate in their criticism of President Bush upon taking their congressional seats. Though the caucus was vocal, it was able to do little to prevent the Democratic leadership and the Republican rank and file from supporting and financing President Bush’s new plan to intensify the war in Iraq.¹⁹

The vast majority of past and current research on U.S. constitutional war powers maintains that presidents have often acted unilaterally with regard to their perceived powers as commander in chief and that since the Korean War Congress has largely deferred to presidential leadership on the decision of whether to use force abroad.²⁰ And as one considers the political environment in the immediate years preceding the Obama presidency, it seems evident that George W. Bush was able to make wide claims of military power and authority as Congress—both Republican and Democratic led—continued to support his military endeavors, even at times when public-opinion poll numbers were abysmally low for him.²¹ A strong commander in chief triumphed over a compliant Congress even when the Congress was led by Democrats—Speaker of the House Nancy Pelosi (D– Calif.) and Senator Harry Reid (D–Nev.). It is in this context and political environment that Barack Obama and Joe Biden took their positions in the White House, which appeared ripe for a period of strong leadership as exercised by the commander in chief. That said, no president-elect or vice president–elect in the modern era had such extensive histories of supporting meaningful and substantive checks on the commander in chief prior to their leadership positions in the executive branch. Obama and Biden’s records in the Senate certainly raised the possibility that an Obama/Biden White House would exercise power differently from their predecessors.²² For these reasons, it is worthwhile to study their records in the Senate.

Senator Joe Biden and War Powers

Joe Biden was first elected to the U.S. Senate in 1972, where he remained until assuming the office of vice president in 2009. It is first notable that Biden became vice president in an era when the office has gained new prominence in shaping both U.S. domestic and international policy. Since the vice presidency of Walter Mondale and through the vice presidency of Richard Cheney, this office has grown considerably in importance with increased responsibilities in the executive branch.²³ This was similarly true early in the Obama presidency as Biden was considered a close confidant of the president, who turned to him for advice, especially in the area of international affairs.²⁴ One of Biden’s major areas of interest while serving for more than three decades in the U.S. Senate was U.S. foreign policy. At the time of his election as vice president, he was serving as the chairman of the Senate Foreign Relations Committee. For all of these reasons, it seems legitimate and relevant to the current presidency to understand Biden’s previously expressed views on war powers and the constitutional authority to use force abroad.

Among U.S. senators, Joe Biden was especially well versed on constitutional war powers, which was evident through an array of speeches he gave on the Senate floor, his service on the Senate Foreign Relations Committee, his introduction of legislation aimed at limiting presidential military actions, and his published scholarship on this issue. Biden had a lo...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Introduction: Red Lines for War
• 1. The War Powers Framework for the Obama Presidency
• 2. Afghanistan, Drone Warfare, and the Kill List
• 3. Fighting Pirates on the Indian Ocean
• 4. Obama’s Military Strikes on Libya
• 5. The Hunt for Joseph Kony
• 6. Senators Kerry and McCain: Empowering the Commanders in Chief
• 7. Syria and Beyond
• Acknowledgments
• Notes
• Selected Bibliography
• Index