Bench Memos

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Declaring and Undeclaring


Mark Levin has extended his original post (scroll down for the new part) on whether Congress can “undeclare” a war in response to my last note on this subject. Readers who want to shout “fight, fight!” may be disappointed to see me say that I don’t think Mark and I are all that far apart. We are agreed, for instance, that “[t]he president has an independent constitutional responsibility, as commander-in-chief, to protect the country from foreign enemies.”

Where we disagree seems less significant. On one point I just don’t know the answer, and perhaps Mark does. He says that after each of our declared wars, the statutory “undeclarations” of war that terminated hostilities (like the one I mentioned regarding Germany in 1951) were merely legislative implementations of treaties. But has that always been so? Sticking to our example, I can’t find a treaty of peace between the United States and the Federal Republic of Germany that predates the act of Congress I cited. There seems to have been, in the late 1940s and early 1950s, a progressive and gradual recognition in practice of the autonomy and self-government of what had been occupied (West) Germany. But I can’t find a treaty with Germany formally terminating hostilities, and the 1951 act I cited does not reference one.

Be all that as it may, when Mark says that Congress cannot undeclare a war, he must not mean that the House and Senate literally cannot repeal a prior enactment. I cannot think of the circumstances under which that could be true. He must mean that if they do so, the repeal is a nullity, an unconstitutional enactment, if hostilities are still ongoing and the president is in the midst of prosecuting the war. But who would have the authority to declare the repeal unconstitutional and treat it as a nullity? Only the president, who could first say so in a veto message and subsequently say so in defiance of the repeal if it passed over his veto. The issue would be a quintessential political question that the courts would have no business meddling in.

And so we would have the perfect constititutional stalemate. On one side a Congress that claims its constitutional prerogative to authorize, and by parity of its own logic, to de-authorize the use of the president’s war powers. And on the other side a president who claims his own constitutional prerogative to continue the waging of a war we’re in the middle of, asserting with equal or greater force the logical consequence of his own powers: “what you have told me to begin, I must finish, and I must be the judge of when I have finished.” I can imagine a situation in which I took the side of Congress. I would not take its side in the present situation, if it proceeded to do something this absurd.

We have been somewhere like this before. When Congress passed the War Powers Act of 1973 over President Nixon’s veto, the president made it plain that he did not regard the powers of his office as commander in chief to be bound by the act’s strictures. No president has deviated from that understanding of the act’s conflict with the constitutional powers of the presidency. But no test in a court of law is really possible—at least in front of judges who know their own proper limits.

What leading Democrats now propose is the War Powers Act on steroids, claiming that war powers whose use they authorized can now be, as it were, decommissioned by legislative fiat. But as John Marshall said in another context, “[t]he past cannot be recalled by the most absolute power . . . How far the power of giving the law may involve every other power, in cases where the Constitution is silent, never has been, and perhaps never can be, definitely stated.”

Circumstances control the analysis here, and the people will decide the issue. I think Mark and I read those circumstances similarly, and I think the American people will reject the Democrats’ desperate gambit.

Tags: Franck


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