War Powers Debate

by Andrew C. McCarthy

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.