I’ve enjoyed Rich’s column and Jeffrey Anderson’s responsive essay this morning on the War Powers Act (WPA) and the fact that President Obama has effectively killed it with his Libya war. But I continue to think, as argued in this column, that the WPA is a sideshow. Focusing too much attention on it — other than for the purpose of yet again demonstrating the gulf between Obama campaign rhetoric and Obama governance — is counterproductive. The issues are whether what we are doing in Libya is constitutionally legitimate and whether it serves the national interests, not whether Obama is in compliance with 60-day time limits, etc.
Prof. Anderson correctly outlines some of the WPA’s policy flaws, particularly the fact that it actually encourages presidents to take unilateral military action — which Anderson describes as “grant[ing] the president too much authority, not too little.” What makes the WPA constitutionally problematic, though, is mostly its legislative veto provision, which purports to enable Congress to direct the president to withdraw forces by a joint resolution. (See this 2004 CRS analysis, here.) Joint resolutions are not binding law because, under the Constitution, law can only be enacted if the president signs a bill passed by both houses of Congress, or if Congress overrides a presidential veto of that bill by the required super-majority. (As Rich points out, the veto-override is how the WPA was enacted in the first place.) Putting aside the knottier question whether Congress has the authority to order a president to withdraw forces (i.e., could Congress constitutionally direct a president to withdraw forces by overriding the presidential veto of a bill directing him to do so?), Congress certainly cannot direct a president to do anything by a mere resolution.
Nevertheless, the fact that the WPA is a nullity (and now a dead letter thanks to Obama’s conduct) does not help us resolve the underlying issue: Does the Constitution empower a president to initiate a war under circumstances where the United States has not been threatened, much less attacked, and there are no vital U.S. interests at stake?
Rich seems contend that it does, and asserts that “The president’s inherent powers as commander in chief do not depend on affirmative acts of Congress.” The quoted proposition is surely true, but it begs the question of what the president’s inherent powers are — i.e., what is his Article II authority, including the powers of commander in chief? The issue is not whether the president needs to be in compliance with the WPA; it is whether the Constitution empowers him to dispatch forces whenever he pleases. And there is clearly a difference between raw power and constitutional authority. That is, as commander in chief, the president clearly has the power to invade anyplace he chooses — including, say, Canada, or the state of New Jersey. But he obviously doesn’t have the authority to do that.
Prof. Anderson’s position is not easily nailed down, either. He seems to argue, mostly in reliance on Justice Story’s Commentaries on the Constitution, that the president may not conduct war unless Congress authorizes it. Yet, although President Reagan’s attack on Libya would violate this principle, Anderson grants Reagan an exception on the curious ground “that it was a one-time strike that required the element of surprise and was not a precursor to a larger war.” It can never be known with certainty that a seemingly limited strike will not snowball into a larger conflict (see, e.g., Sarajevo 1914). Moreover, just as Rich observes that the WPA does not make exceptions for “piddling” wars, so does the Constitution not limit Congress’s war powers to the declaration of only big wars. That aside, though, we can safely assume that if Prof. Anderson believes Reagan’s Libya attack was legitimate, he would endorse the generally accepted view that presidents have inherent authority, absent any approval by Congress, to respond to attacks or threatened attacks against the United States, even though the Constitution does not say so (at least by anything other than inference from the powers granted by Article II).
The bottom line, I’d submit (and I’ve argued before), is this: It is a fool’s errand to analyze this question in legal terms rather than political ones. The matter of where the Congress’s war power ends and the president’s begins is not justiciable. Moreover, it cannot be marked with legal certainty — “The great ordinances of the Constitution do not establish and divide fields of black and white,” Justice Oliver Wendell Holmes wrote in Springer v. Philippine Islands (1928).
The political branches have overlapping authorities, requiring them to work together to get important things done and to check each other to stop abusive things from being done. That is the genius of the system. When the system is working properly, the president must get Congress’s approval to initiate an unprovoked war. As a practical matter, however, the president cannot be stopped from doing this absent a strong, accountable Congress that is willing to flex its constitutional muscles — any more than, say, the Supreme Court can be stopped from some of its excesses absent a willingness by the political branches to take decisive, constitutional counter-measures. We’re a body politic, not a body legal.
Even his "authority" is a political question. Which means it is only a matter of how far Congress is willing to go before it invokes the political sanction afforded it - impeachment by the House and conviction and removal from office by the Senate. And it appears that the Clinton fiasco has raised the bar pretty high in terms of what counts as a "high crime or misdemeanor" and also served to reduce the process into nothing more than naked partisanship - good luck getting the president's partisans in Congress to vote for impeachment or conviction for anything that isn't clearly illegal or wholly immoral.
Reply to this commentLinkReport AbuseIn highlighting the political aspects of the question and raising possible instances when one branch of government might have the courage to stand up to another branch, one could argue that Congress did intend that there be three co-equal branches of government. However, in those instances, one branch still prevails, whether because the other branches won't take a stand or because another branch does take a stand. Whatever the nuances of actual Constitutional power, it does not actually seem accurate to say that there are three co-equal branches of government. There are three distinct branches of government; and in some areas a particular branch of government is superior, not co-equal. It does seem that a reason the Supreme Court has stayed out of the fight over the War Powers Act is that it has the humility to recognize that in this matter, it is not a co-equal branch of government, indeed, is not superior, but inferior, to the other two branches in that particular area; and the Court prudently leaves it to the other two branches to fight it out over which of the two is superior ("co-equal" ultimately having no meaning)in what way and to what degree.
Reply to this commentLinkReport Abuse"It is a fool’s errand to analyze this question in legal terms rather than political ones"
There's a third way to look at this, Andy, and I would suggest that it speaks to the more fundamental issue. The framers saw war as a state which, to be legitimized, needed to be declared. Over the course of the 20th century (increasingly, though one could make an argument that the roots go back as far as the late 19th) war was used not to preserve the union, or fend off an attack, but for rather more abstract, nebulous reasons (kicking the kaiser/hitler/kim il sung/ho chi minh/saddam/bin laden/saddam/ghadhafi(?) out of france/france/korea/vietnam/kuwait/afghanistan/iraq/something*) - war has become an action of the state - a verb not a noun, and the executive is the varbing branch, the legislative is the nouning branch, what has changed is our understanding of the purpose and focus of war.
*and yes, I am aware that I left off the spanish american war, the mexican war, grenada, bay of pigs, haiti, somalia, yemen etc
Reply to this commentLinkReport Abuse"varbing?" I meant "verbing" oops!
Reply to this commentLinkReport AbuseThe President has executive power - i.e., the power to execute that which has been legislated. His being commander in chief of the armed forces does not, however, give him legislative power - i.e., the power to determine what the United States shall do.
I suggest that the President's being commander in chief, rather, reflects the absolute nature of his executive power over the military. The President is not the "commander in chief" of the civilian executive officers: while Congress cannot prevent him from removing such an official for failing faithfully to execute the laws, it can prevent him from removing such an official for failing to execute the laws as the President would prefer.
For example, the President can remove the Secretary of State simply because the Secretary refuses to perform her duties as the President would prefer - i.e., disobeys a lawful order. In contrast, the President cannot remove a member of the Federal Trade Commission for failing to obey an order - he can be removed only for cause.
The impact at the civilian level is to create two classes of executive power: (1) absolute - the President (directly or through persons he may remove at will) may execute a law as he sees fit; and (2) conditional - the President (indirectly through persons he may remove only for their failure faithfully to execute the laws) may only supervise another persons's execution of a law.
I think the most coherent reading of the President's status as Commander in Chief is that his power to remove is plenary - i.e., he can remove a member of the military (at least from the chain of command) simply because that member has refused to execute the law (e.g., "invade Germany via an invasion of Normandy") as the President sees fit. A law which purported to require the showing of "cause" to remove a general charged with invading Iraq would give someone other than the President - i.e., the general - the power to "command."
In determining whether an order is itself lawful, therefore, the President cannot rely on his being "commander in chief" - he must rely on his executive power. Accordingly, he must be issuing the order pursuant to a provision in the Constitution, a treaty or a law - just as if he gave an order to a civilian officer to hand out $100 checks to the elderly, imprison counterfeiters or collect 1% of everyone's income.
This gives the President a lot of flexibility: Congress has power to give him authority, ahead of time, to use the military in various instances - there's no requirement that Congress be any more specific in passing a law pursuant to its power to "declare war" than pursuant to its power to "regulate commerce among the several states". And an actual, attempted or imminent invasion of the U.S. or attack on its persons would give the President the opportunity to use force without specific legislative sanction not because he's "commander in chief", but because the laws can't be executed if the nation is under attack and because the "United States" has the specific duty, e.g., to repel invasion of the states.
I'm just suggesting an approach here - one that I think is consistent with constitutional language, one that avoids the spectacle of Presidential impotence at a time of grave crisis and one that of the spectacle of Caesarism with which so many are enamored.
All that said, the "real" mechanism for enforcement, if the Courts won't act and the President refuses to refrain from acting, is political - just as it would be if the President engaged in any other ultra vires act in the civilian realm. If we elect wimps to Congress, we get what we deserve.
Reply to this commentLinkReport Abuse>"Nevertheless, the fact that the WPA is a nullity (and now a dead letter thanks to Obama’s conduct) does not help us resolve the underlying issue: Does the Constitution empower a president to initiate a war under circumstances where the United States has not been threatened, much less attacked, and there are no vital U.S. interests at stake?"
Why is this even a question? The answer is "No", the only question is how do we restrain a lawless President.
>"When the system is working properly, the president must get Congress’s approval to initiate an unprovoked war. As a practical matter, however, the president cannot be stopped from doing this absent a strong, accountable Congress that is willing to flex its constitutional muscles"
By, presumably, a threat of impeachment. Why do you take this approach to THIS particular instance and not to others? If the President were to ignore the Constitution in other respects - by, for instance insisting on running for a third term - would you still say that he can do as he wishes short of impeachment by Congress?
As we saw in the Bush years, the courts have no problem with interfering with presidential power in trivial cases. Why should they sit idly by while the executive undermines one of the most important restrictions on executive power?
I still don't see any coherent argument being made by the "President as King of War" side of this. Even the normally practical McCarthy has to resort to hand-waving.
Reply to this commentLinkReport Abuse>"All that said, the "real" mechanism for enforcement, if the Courts won't act and the President refuses to refrain from acting, is political"
That's obviously true, but I have yet to hear a decent argument for why the courts would refuse to act. So far they have not been given the opportunity to weigh in on this. But it is clearly a key constitutional question, exactly the sort of thing the SCOTUS should have a opinion on. It's a lot more in the courts domain than a lot of the other stuff they rule on, such as crowding in California jails.
Reply to this commentLinkReport Abuse>"It is a fool’s errand to analyze this question in legal terms rather than political ones."
Why? Why does that apply to THIS question and not to campaign finance reform, or Obamacare, or Gitmo, or any of the myriad other political/constitutional questions which go before the court?
>"The political branches have overlapping authorities, requiring them to work together to get important things done and to check each other to stop abusive things from being done."
Yes, they do. But that injunction applies to the judicial branch as well as the others. And in just about any other situation you'd expect the judicial branch to intervene to stop abusive executive branch overreach if the legislative branch failed to do so.
Reply to this commentLinkReport Abuse>"Over the course of the 20th century - war has become an action of the state - a verb not a noun, and the executive is the varbing branch, the legislative is the nouning branch, what has changed is our understanding of the purpose and focus of war."
So you're saying that we need a "living constitution" which better reflects contemporary realities? The Founders understanding of Presidential power was all well and good for the 18th century, but we moderns can't be bound by such outmoded ideas?
Reply to this commentLinkReport AbuseHere's a hypothetical to help concentrate your minds. If Obama gets enraged at Netanyahu and orders a US nuclear attack on Israel, is that a lawful order which the US military must carry out unless Congress somehow impeaches Obama in a matter of minutes?
According to the National Review position on the presidents war powers, the answer is "Yes".
Reply to this commentLinkReport AbuseThe problem is not that Obama killed WPA with his Libya misadventure; the problem is that Congress killed the WPA itself with its spineless lack of response. Yes, doing something like defunding the mission would provoke some kind of crisis, but Obama has learned that if he moves first Congress will not respond, so he is free to do what he wants. He's a poker player and he's learned how to make Congress "fold". Sometimes you have to call.
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