Bench Memos

President Obama Stumbles into Hamilton’s Constitution

When he announced yesterday that he was going to ask Congress to vote on whether he should employ military force in Syria, President Obama surprised nearly everyone.  While some members of Congress and commentators had called on him to refer the matter to Congress, or at least to “consult” with the legislative branch, the administration’s argument before his Rose Garden announcement—as well as the view on evidence in its past deeds in Libya—was that the president has unilateral authority to take action against the Assad regime.

The president repeated that argument yesterday, but not without some equivocation—however unintentional.  Immediately after announcing that he had “made my decision as Commander-in-Chief based on what I am convinced is our national security interests,” Obama said that he had “made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress.”  That word “authorization” is heavily freighted.  He who needs or requests “authorization” implicitly does not have “authority” without it.

Obama claimed otherwise: “I believe I have the authority to carry out this military action without specific congressional authorization.”  He was going to ask for it anyway—but why?  Because “the country will be stronger” if we proceed this way?  Because “this is the right thing to do for our democracy”?  Or because—and this was the first reason he gave—ours is the “world’s oldest constitutional democracy”?  Obama’s claim that the president needs no congressional authorization in these circumstances, his rejection of the view that he is obliged to get it or not to act, was undermined by his rhetoric about the norms of our constitutional democracy, and especially by his (or his writers’) twice using the expression “congressional authorization” for the thing he seeks—and one of those times, using it within ten words of his claim of unilateral “authority”!

And there it was too in the draft resolution he forwarded to Congress shortly afterward: the words “authorize” and “authorization” are all over it.  Suddenly Obama looks as respectful of Congress’s constitutional powers as . . . George W. Bush.  What do you know?  But this is one of our oldest constitutional debates.

Presidents in these circumstances always seem to wind up recapitulating, in their relationship with Congress and the public, the debate that took place in George Washington’s presidency between Alexander Hamilton and James Madison.  These erstwhile co-authors of the Federalist were already aligned in nascent opposing parties by 1793, and took to the newspapers (anonymously, of course) to disagree about the extent of presidential power in foreign affairs, when Washington declared U.S. neutrality between France and Britain.

Madison (as “Helvidius”) argued that the Constitution’s “declare war” power, as well as its other military-related legislative powers, amounted to a default rule that war powers were chiefly congressional, with the president’s commander-in-chief power forming an exception carved out of that default possession of the legislature.

Hamilton (as “Pacificus”) saw it the opposite way:

It deserved to be remarked, that as the participation of the senate in the making of Treaties and the power of the Legislature to declare war are exceptions of the general “Executive Power” vested in the President, they are to be construed strictly—and ought to be extended no further than is essential to their execution.

While therefore the Legislature alone can declare war, can alone actually transfer the nation from a state of Peace to a state of War—it belongs to the “Executive Power,” to do whatever else the law of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the U[nited] States with foreign Powers.

No figure of the American founding was a stronger proponent of the executive power than Hamilton.  Even he says here that “the Legislature alone can declare war, can alone actually transfer the nation from a state of Peace to a state of War.”  What does he mean by that?  Is this best understood as a narrow power, only about “changing a legal status between nations” as John Yoo argues, and in no way a limitation on the president’s power to use military force—even in circumstances having nothing to do with our self-defense, our response to attack or to a threat?

Yoo’s interpretation is doubtful, in my view, or at the very least it is not the view of Hamilton, from what we know of his opinion on other occasions.  In 1798, writing to Secretary of War James McHenry, Hamilton remarked that without any statutory support but acting solely

on the foot of the Constitution, as I understand to be the case, I am not ready to say that he has any other power than merely to employ the Ships as Convoys with authority to repel force by force, (but not to capture), and to repress hostilities within our waters including a marine league from our coasts.

Any thing beyond this must fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.

It is interesting that here Hamilton uses “declare or make” as though the terms were interchangeable.  He went on to say that “In so delicate a case, in one which involves so important a consequence as that of War—my opinion is that no doubtful authority ought to be exercised by the President.”

The following year, growing tired of French abuses of American shipping, Hamilton wrote to Massachusetts congressman Harrison Gray Otis:

I should be glad to see, before the close of the Session, a law impowering the President, at his discretion, in case a negotiation between the United States and France should not be on foot by the first of August next, or being on foot should terminate without an adjustment of differences, to declare that a state of war exists between the two Countries, and thereupon to employ the Land and Naval forces of the United States in such manner as shall appear to him most effectual for annoying the Enemy and for preventing and frustrating hostile designs of France, either directly or indirectly through any of her Allies.

Here we see Hamilton expressing a felt need for a president of his own party to have congressional authority before he acted against a foreign threat.

A final example.  In December 1801, in response to what he viewed as President Jefferson’s weak response to the depredations of the Bey of Tripoli, Hamilton took to the public prints again, beginning a series titled “The Examination” and signing himself “Lucius Crassus.”  In the first essay, Hamilton took the view that when the nation is attacked, no declaration of war is necessary on our part—the other side’s actions have already turned a state of peace into a state of war.  But in the course of the argument he made some remarks that may be relevant to our current debates:

It will be readily allowed that the Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war: but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it, as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. That instrument has only provided affirmatively, that, “The Congress shall have power to declare War;” the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary. This inference is clear in principle, and has the sanction of established practice. It is clear in principle, because it is self-evident, that a declaration by one nation against another, produce[s] at once a complete state of war between both; and that no declaration on the other side can at all vary their relative situation: and in practice it is well known, that nothing is more common, than when war is declared by one party, to prosecute mutual hostilities, without a declaration by the other.

“[I]t belongs to Congress only, to go to War.”  I am content, for my part, not to out-Hamilton Hamilton.




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