Balkinization  

Wednesday, December 14, 2011

How to Think About War Powers, Pt. 1

Stephen Griffin

Having finished a draft of a book on war powers, this is the first of several posts on topics arising from the book. If I had to boil the book down to one claim, it would be that wars, “real” post-1945 wars such as Korea, Vietnam, the 1991 Gulf War, Afghanistan and Iraq, pose extraordinary challenges and risks for our democratic constitutional order that clearly separate them from other types of military conflicts. At the same time, I add covert wars and decisions on nuclear strategy to the usual list of wars fought by the US since 1945 because significant presidential decisions were made in those spheres without the participation of Congress.

In these initial posts I will concentrate on clearing away the conceptual underbrush of the war powers debate. The debate has been going on, after all, for several decades, at least since the Vietnam War became controversial in the mid-1960s. Last July 4, Time magazine summarized it as a clash of two constitutional clauses – “declare war” in Article I versus “commander in chief” in Article II. This popular way of describing the debate, indulged in by both sides (although more by pro-president than pro-Congress scholars), is misguided. It misses how presidential war powers have always been exercised in the context of US foreign policy and treats the use of military force as completely separate from that policy. This foreign policy perspective has in fact been advocated from time to time, mostly by presidentialists. I don’t believe that this basic point has a particular valence for either side in the debate. But it is true that congressionalists have often failed to engage with the real-world context of the use of armed force because of a blind spot about the role of foreign policy in presidential decision making. For some legal liberals in particular, the war powers debate has served as a kind of substitute for confronting broad issues of US strategy in foreign affairs. And that is a shame because it makes their cogent critique of presidential decisions for war almost unrecognizable to the executive branch officials it is supposed to influence.

So accepting that presidents exercise war powers in the context of advancing the foreign policy and defending the national security of the US is not a sop to presidentialists. It is rather an essential precondition for having a useful debate in the first place. Acting within the context of foreign policy, presidents do not typically think of themselves as starting “wars.” Rather they are advancing and defending as specified. Nevertheless, war is not like other aspects of foreign policy or even like low level uses of armed force. Its risks and challenges are of a different character. That difference is backed by the Constitution, which makes “war” a meaningful category of government action and identifies Congress as the branch which has to authorize war. Treating war as a subset of foreign policy does not either establish presidential predominance in war powers or avoid the obligations that the Constitution imposes on the executive branch as a matter of law.

Few would dispute that presidential power in foreign affairs has a basis in practice or tradition. But does this power have a basis in the text of the Constitution? Here is where my opinions changed the most over the course of my project. Thanks largely to the excellent scholarship of Mike Ramsey and William Casto, I accept that it is likely that the vesting clause of Article II is a reasonable textual basis for presidential power in foreign affairs. Mind you, I don’t go all the way with scholars who view the vesting clause as a source of all presidential power. But historical evidence strongly suggests it is a location of power in foreign affairs. I recommend Ramsey’s book The Constitution’s Text in Foreign Affairs and Casto’s book Foreign Affairs and the Constitution in the Age of Fighting Sail to everyone interested in presidential power in foreign affairs. Among other points, they establish that Hamilton and Madison agreed more than they disagreed with respect to war powers in their famous 1793 debate as “Pacificus” and “Helvidius” respectively. My own research supports their conclusions.

Students of debates over presidential power know this relates to Justice Jackson’s concurring (now controlling) opinion in the Steel Seizure case. Jackson specifically rejected the vesting clause thesis and assumed that founding era debates such as the Pacificus-Helvidius clash showed that it was fruitless to rely on historical evidence to resolve separation of powers problems. But Jackson did not consider the narrower possibility that the vesting clause underwrote presidential power with respect to foreign policy. And he was simply too quick in concluding that the Pacificus-Helvidius debate was a wash. The belief that the Pacificus-Helvidius debate showed deep divisions among the framers as to presidential power in foreign affairs, including the war power, has been one of the main stumbling blocks preventing scholars from seeing that there was a univocal founding era judgment that only Congress could commence “war.” Ramsey and Casto have shown that careful scholarship can improve our knowledge of the past even with respect to texts that have long been available and discussed for decades. How does regarding war powers issues in the context of foreign policy aid our understanding of the constitutional issues at stake? That’s for next time.

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