This is my monthly essay for the Diplomat web-magazine. The original can be found here. I will say upfront that I am not a lawyer, but a political scientist, so I am aware that the legal argument about presidential war powers independent of Congress is fierce. But that interests me less than the absolute (or moral or philosophical) argument for unconstrained presidentialism on the use of force. That is, whether or not presidential unilateralism in the use of force is ‘constitutional,’ as the lawyers would say, is something a dodge. That does not mean it’s right. The Constitution is not perfect and has been amended for things like slavery, women’s enfranchisement, and Prohibition. So ultimately the president should justify ignoring Congress in war-time by some argument consonant with liberal democratic values, rather than an ex cathedra appeal to authority. And I don’t really think it is possible to coherently argue that presidential free-lancing with minimal Congressional oversight and consent is good for democracy. In fact, that strikes me as self-evident, which is why I love that Ron Paul quote in the video (1:13 mark) above. The essay follows the jump and is written in an op-ed style.
“For decades, particularly since the Korean War, American presidents have insisted that they may deploy force on behalf of the nation without much Congressional oversight and, at best, vague Congressional consent. Call it the ‘resolution system,’ for lack of a better term:
The president deems a conflict worthy of US involvement, but he wants to duck the formalism and high stakes of a de jure Congressional war declaration per the Constitution (Article 1, section 8, clause 11). So he asks instead for a ‘resolution’ which expresses the ‘sense’ of the Congress or something suitably vague like that.
Next, the president insists that he is permitted to use force without Congress approval, as President Obama did in his Syria television address in September. This makes the Congressional vote “constitutional theater,” as Senator Rand Paul described the Syria debate, because no one really knows if the vote is binding. Ideally Congress votes for the war effort. Second best for the president would be that Congress backs down on a formal vote, and the president can fight with silent semi-approval in the legislature, as in Korea and Vietnam. Worst would be a clear Congressional vote against US involvement, which the president then choose to simply ignore. (As the first President Bush put it: “I didn’t have to get permission from some old goat in Congress to kick Saddam Hussein out of Kuwait.”) Such an outcome would threaten a genuine Constitutional crisis over war powers that would likely end before the Supreme Count. This has never explicitly happened, although Obama brushed with this twice – once in Libya, where the House of Representatives voted down US involvement, and second in Syria recently, where the scheduled votes in the Congress were likely to go against the president before Putin ‘rescued’ Obama from a serious separation of powers confrontation.
Finally, the president refuses to accept the 1973 War Powers Resolution with its 90 day troop deployment limit, and tries to budget his conflict so as to avoid any special funding votes that might informally become a referendum on his wars. Both President Johnson in Vietnam and the second President Bush in Iraq pushed this financing principle to the limit. The ‘imperial presidency’ is bipartisan phenomenon. Ideally, all this flim-flam keeps the political noise down long enough for the not-quite-declared non-war to be concluded on favorable terms. In turn, this reinforces the next White House occupant’s willingness to purse ‘resolutions’ instead of Constitutional war declarations.
The constitutionality of this cyclic resolution system is murky at best, particularly given the clear war powers clause already in the Constitution and the Framers’ well-documented fear of kings (or presidents) going to war too easily. Like the recent efflorescence of presidential ‘signing statements,’ war resolutions are executive branch legal free-lancing with hotly contested legitimacy that has never been tested at the Supreme Court. It is widely understood that wily Obama went to Congress on Syria only after the politics shifted dramatically against him, responding to the combined weight of Prime Minister David Cameron’s lost Syria vote in the House of Commons, the refusal of the UN and the Arab League to back strikes, and high public resistance at home to involvement. In early September, Obama really had only the French government – not even its people, who also opposed strikes and wanted a parliamentary vote – and the US foreign policy community, with its unshakeable conventional wisdom that the exertion of US power is good, especially in the Middle East. Had the British come through as expected, Obama would likely have stuck to the ‘French path’ of claiming executive privilege to use force, regardless of legislative and public opinion.
In this, the House of Commons’ no-vote, and Cameron’s respect for its decision, has done a great service to rule of law and the accountability of the executive branch in the West, and perhaps turned a page in the recent Western way of war. It should go without saying that elected presidents and prime ministers are not elected monarchs with a blank check. It may be that Western constitutions give executives wide latitude – although this is usually contested – but executive branch unilateralism is always distasteful, as it is essentially undemocratic. And when that unilateralism involves the use of major force, the killing of other people in the public’s name, it is simply improper regardless of the clever legalisms of executive branch lawyers may spin.
There are of course instances when presidents must use force without legislative approval. National emergencies such as 9/11 and Pearl Harbor are obvious example. In such moments of high peril, when the state is clearly under attack, the unity, speed, and efficiency of the executive branch is critical. Indeed these qualities are the very reason the Framers gave the war-making power to the president as commander-in-chief. No one accepts that hundreds of legislators, many with no military training, should run wars, even in a democracy. But where time is not pressing, where there is no imminent threat to the homeland or a crucial US asset overseas, why not consult the people’s representatives? What possible justification is there to avoid democratic consultation in a participative debate, besides the antidemocratic pretensions of the ‘imperial presidency’? Does anyone genuinely believe it is healthy for democracies to foreclose public and legislative debate on a question as momentous as the use of force? To my mind, the burden of proof should in fact run the other way: only where there is a clear and present national danger, where time is critical (such as in now-outdated Cold War nuclear war scenarios) should executives be permitted use major force without meaningful legislative debate and, ideally, approval.
Two ‘presidentialist’ arguments deserve consideration. First, one might suggest that when the US Constitution was written, ‘sub-war’ conflicts were less current. Hence there is no clear constitutional guidance on the president’s authority in situations like Kosovo, Libya, or Syria. None of those were ‘wars,’ commonly-defined, for Americans. There was no danger to the US, no US boots on the ground, US costs in blood and treasure were slight. But there is no obvious reason why the president should have such extensive combat-initiation rights in such scenarios, but not if we call them “wars.” To accept that logic simply tells the president to avoid calling anything a “war” in order to side-step Congress. That may be ‘constitutional’ or legal – and that is in fact how Johnson fought Vietnam and Bush fought Iraq 2 until things really soured – but does anyone really think a democracy should be characterized by executives so blatantly skirting the spirit of the law with gimmicky legalisms? This is precisely why the War Powers Resolution was passed.
Second, one could note the disunity of the legislature, its weak foreign and security policy skills, its willingness to hold votes hostage for narrow side-payments, and so on. By contrast, unitary executives see farther, act more coherently, and aggregate the national interest into one voice. The executive is the only nationally elected figure and enjoys a unique legitimacy, particularly in dealing with foreigners. All this is indeed true, but to accept it as cause for independent executive military action without the legislature is to brush with dictatorship. For these arguments are precisely those of the Beijing Consensus. Democracies do not privilege speed and efficiency in decision-making, no matter how much frustrated foreign policy elites may wish it so. Democracies are to be the opposite – deliberative and participative, and inevitably, slow. This is not a flaw; this is wisdom and prudence of consensual rather than oligarchic government. And the track record of elite war choices is hardly stellar. Vietnam and Iraq were both elite pet-projects pushed onto a wary legislature and public, suggestive of the Framer’s wisdom in removing the war decision from one person. As the US pivots to Asia with the obvious possibility of armed conflict with China, do we really want a presidency with weakly tethered war-making powers?
So resist the shallow media caricature of Cameron’s defeat in the House and Obama’s likely defeat in the Congress as the ‘end of Britain’s role in the world,’ or the pre-mature ‘lame-ducking of the president.’ A deeper, richer interpretation is that these moments are the return of democratic checks-and-balances in a competency where they have been dormant too long and given us catastrophes like Vietnam, Iraq, and a drone war that murders overseas Americans without due-process. These votes may be bad for this or that passing occupant of the West’s high offices, but they are healthy for our democracies and public control of government.”
Bob, interesting piece. I have two points. First, concerns the legal and constitutional considerations to President Obama’s Syrian proposal. The 1952 US Supreme Court case of Youngstown Steel v. Sawyer is, I believe, the primary reason the President went to Congress regarding Syria. Justice Jackson’s concurrence in the case outlines three zones of presidential authority: high, low and the intermediate “zone of twilight.” Under Jackson’s analysis, the President acts with highest authority when he has express Congressional authority (law, resolution etc); acts with low authority when he is acting against explicit or implicit congressional authority; and is in the zone of twilight when Congress is silent. In the zone of twilight, relevant circumstances must be considered to determine the President’s constitutional authority to act. The other two zones are self explanatory.
It seems to me that President Obama went to Congress with Youngstown in mind. His constitutional authority to act militarily in Syria was not firm, since American interests were not directly threatened. His was a moral dilemma which no other country was willing act on. This is why he deliberately went to Congress to get support rather than acting unilaterally. Although willing to act within his capacity as Commander in Chief, express congressional authority would have put him in the high zone under Jackson’s analysis. He was gambling that Congress would have also agreed on moral grounds. It was a gambit. Fortunate for him, Putin stepped in and so Congress did not have to respond. President Obama was not “blatantly skirting the spirit of the law with gimmicky legalisms.” rather, the President was well aware of the constitutional ambiguities in such a situation, and attempted to act within the spirit of constitutional and legal authority.
My second point concerns the friction between Congress and the Executive and is an expansion of your second argument regarding the democratic process. We need the tension between Congress and President. Neither branch should be too powerful. True, the President has the upper hand when it comes to foreign affairs, and the Founding Fathers knew this. That is why the Constitution is written in outline form rather than a code. Interpretation is needed so that neither branch becomes too powerful (hence the War Powers Act to act as a gap filler) . If the President becomes too powerful and acts without consequence, we have a dictatorship (as you pointed out). But we cannot let Congress have the upper hand either. To do so would create endless debate and inaction. The attempts by the Executive to expand its powers, and Congressional attempts to curb that power and expand its own is exactly what the Constitution is meant to do. This tension is vital to the balance of power structure envisioned by the Founders. The Constitution will collapse once that tension is gone.,
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I agree with the second point. I would argue that the current system, in the use of force, is overly skewed toward the executive. It strikes me as both morally consonant with liberal democracy, and consonant with the Constitution that the president should approach the Congress for approval.
I disagree with the first point. I think the White House went to the Congress on Syria because of politics, as I say in the essay. If the House of Commons had voted for the war, Obama never would have gone to Congress. He didn’t go to Congress over Libya, so I see no ‘due process’ argument Congressional approval the second time around. Obama, like so many presidents before him, is just making it up as he goes along, desperate to avoid a formal vote on a declaration of war.
Just to be a pain,
Of course the President approached Congress due to politics. But as I mentioned, Youngstown casts a long shadow as a limitation on Presidential actions and is a political due process mechanism. As a former Constitutional professor, President Obama and his advisers were well aware of the Youngstown hurdle and the need to approach Congress in order to bolster his position domestically and internationally. Was it pro-forma? Perhaps, but, his predecessor probably would not have gone to Congress at all.
Concerning Libya, the US was operating under a treaty obligation with NATO and the UN, hence there was no need to go to Congress for permission. The President has full constitutional authority as Commander in Chief to act without congressional approval when acting pursuant to a treaty obligation (unless Congress has carved out specific reservations when it approved the treaty).
If the House of Commons had given Cameron the green light on Syria, NATO likely would have also approved. In which case, treaty obligations again would allow for US involvement without Congressional approval. Congress may have been advised in such a case, but consent probably would not have been needed.
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