an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Books seem to be busting out all over Balkinization
and I certainly recommend the ones listed on the right of your screen.My purpose in writing this and perhaps another
post is to highlight the imminent publication (May 13, according to Harvard UP
and Amazon) of my Long Wars and the Constitution, a full-scale analysis and
history of presidential war power since 1945, the first such analysis to appear
in many years.Although I have something
to say about what happened prior to World War II, especially with respect to the
eighteenth century, in understanding the situation we face in contemporary
times, I think it is most critical to reach an understanding of what happened
in the Cold War, our last “long” war.
Books on war powers face some challenges.In my experience, the general debate over war
powers since Vietnam is fairly salient.I can’t count the number of times non-lawyers as well as well-informed law
professors have asked me, for example, “Whatever happened to declarations of war?”War powers is a freighted subject and people understandably
tend to have strong opinions.
So let me describe the approach of the book by
drawing some contrasts with arguments and positions you may be familiar with.For instance, although I argue there is
little doubt contemporary presidents have departed from the historical meaning
of the Constitution, I do not think there is a way to return to the practices
that prevailed in the early republic.So
whatever problems we may have, there is no meaningful eighteenth century fix,
any more than we could recreate an eighteenth century military. I do not mean to say that there are no
solutions.Rather, there are no solutions
that anyone in the eighteenth century would find familiar.
I also reject what might be called the “presumption
of equal relevance” – the idea that each use of presidential war power,
especially in the nineteenth century, is equally relevant to the circumstances
we face today.I largely agree with the
“1950 thesis” that Truman’s commitment of troops to Korea without authorization
from Congress marked a sharp break in our constitutional tradition.But the crucial point is not so much the
power Truman asserted but rather that he had new state capacities and resources
available to him (and all post-World War II presidents) that were not available
to prior presidents.The critical
variable of state capacity has been mostly ignored in previous studies of presidential
war powers.Once we take it into
account, it will alter our perspective and understanding of the use of war
powers since 1945.
Presidents have often been taken to task for their
exercise of war powers and their stance has been described as “imperial.”To some extent, I argue that the situation is
actually worse than it has been
perceived, especially by legal scholars (and especially by those who have
served in the executive branch).In
saying this, it is important to understand that while I review all significant
executive branch war powers opinions since 1950, to understand presidential
power we have to concentrate first and foremost on the actions and perspective
of presidents, not their able lawyers.At
the same time, I urge a bit more sympathy for presidents than has usually been
on display in the war powers debate.From
a presidential point of view, they have not so much been exercising “war
powers” as advancing the foreign policy and defending the national security of
the United States.Presidents have had many
reasons for thinking this is exactly what the public and the other branches of
government expect them to do.But
presidents have advanced foreign policy in a context in which they have the
military capacity to intervene almost anywhere in the world on a round the
clock basis.Assessments of the threats
facing the U.S. combined with this capacity have led presidents to believe they
have much broader war powers than legal scholars typically assume.I thus maintain that presidential claims of
power should be inferred from their foreign policy and national security goals
rather than from occasional lawyerly statements.
These preliminary points clear some ground.But now let’s reconsider what the war powers
debate is really about.Following the
oft-heard query on declarations of war, one might assume is about the many
instances in which presidents have committed the country to major wars without
authorization from Congress.Yet in many
respects, ever since Truman as a matter of fact, we have been living in an age
of “AUMFs” – legislative permissions for war which are perfectly valid even by
the stringent standards of the War Powers Resolution.So has this made everyone happy with
presidential decisions for war?Are we
all pleased with the process that has led to war and the outcomes we have
obtained?No!That’s because the real and constitutional issue
is elsewhere.From my point of view, the
most original contribution of the book is to move the debate from the bare
question of congressional authorization to a more substantive concern with the
process of executive decisionmaking.Long Wars and the Constitution is the
most thorough treatment of presidential decisions for war by a legal scholar
(for a historical treatment, see the excellent aptly named book by Gary Hess, Presidential Decisions for War).
I realized midway through the project that the real
issue is that while congressional authorizations have been sought (or
tolerated) by presidents, no post-1945 president, perhaps with the exception of
Eisenhower, has ever believed they were constitutionally required.From this belief, policy consequences
flow.From a presidential point of view,
admitting a constitutional requirement would constitute an unacceptable limit
on their authority to conduct foreign policy and protect national
security.Presidents know they will be
held solely responsible if there is an attack on the United States.To them, and logically enough, sole
responsibility implies sole authority.This means that executive branch decisionmaking is not and has not been based
on the premise that Congress can truly say no.In the legal debate over war powers, this is exemplified by the executive
branch’s inability to come up with a persuasive interpretation of the “declare
war” clause.To the president’s lawyers,
whatever this clause means, it cannot constitute a meaningful limit on the
president’s ability to be “the decider.”To admit this would necessarily deprive the president of a crucial
element of the authority he needs to protect the country and thus fulfill his
Now what is important here is not the narrow legal
implications of the president’s position, but what it means for
policymaking.Long Wars and the Constitution shows how deviating from the
original constitutional order has led to poor executive branch decisionmaking
in every major war, conventional and covert, after World War II.Without the meaningful check provided by
Congress and left to their own devices, presidents have been unable to marshal
the resources of the executive branch to engage in effective war planning,
decide on war aims and, in general, to make good decisions.On this score, I argue at length that the evidence
is quite striking and consistent.
As just implied, to gain a full picture of the
inadequacies of presidential decision making, we must include all three
dimensions in which presidents made these decisions – conventional, covert and
nuclear.Long Wars and the Constitution analyzes all three dimensions in
which decisions for war were made after 1945.Why is this important?If
anything, the presidential record looks better than it should because scholars
have generally not joined together exceedingly dubious covert operations, such
as the Bay of Pigs, with their policy consequences.In the case of the Bay of Pigs, the
consequences arguably included the Cuban missile crisis, the most serious
nuclear confrontation of this era.
As I hope this brief account illustrates, my book
tries to keep a number of elements in tension rather than sort presidential
actions into neat normative boxes. I'll have to leave possible solutions to a later post. As a
final note, Long Wars andthe Constitution provides the first
history of the war powers debate itself, a debate that has now been going on
for decades.You may recall Dick Cheney
promoting his memoir by saying that it would cause heads all over Washington to
explode.Ok, my book will not make your
head explode, figuratively or otherwise.
Still, if you are not very familiar with the history of war powers, it may
just alter your perspective, not only on presidential power but on the history
of our country post-1945.
This is a sobering post for me as I think back about war during my lifetime (that began in 1930). I recall tthe Seinfeld episode on Tolstoy's "War and Peace," when Jerry mentioned to Elaine (who worked for a book publisher) that Tolstoy's original title was "War, What Is It Good For?" that Elaine believed and made reference to in her dealings with a Russian author her publisher boss was working with on a book on Tolstoy. This was only a sit-com episode but was a reminder: what is war good for?
Some recent posts at this Blog have brought into play McCulloch v. Maryland (1819) on the powers of Congress. CJ Marshall's opinion (unanimous) included this statement: "The power to tax is the power to destroy." In reflecting on Prof. Griffin's post and remembering Ike's "farewell address" in early 1961 warning of the influence of the military-industrial complex that perhaps Marshall's statement could be reversed: "The power to destroy is the power to tax." And the greater is the power to destroy, the greater (it seems) is the power to tax on the basis of national security. The Boston Marathon Bombings make us realize, once again, the threats internally, an event that took North Korea off the front pages. Now it's Syria, which has a connection to Iran and its nuclear threats. This is all happening in a world that is becoming more interdependent, which seems incompatible with war(s) all the time. Elaine's answer to the question of the "original" title for "War and Peace" was "Absolutely Nothing," which was a protest rock song (that I wasn't even aware of). Here's a link to a 1969 video:
I watch "Mash" re-reuns. The humor masks the realities of war. But the military-industrial complex is here to stay, unless ....
In semi-retirement from the practice of law, I audited courses at a local university under a senior program. In 2003 in an international relations course, I became aware of the National Security Strategy of 2002 of Pres. George W. Bush. It stated in effect that America was #1 in the world economically, politically and militarily and that America would do what was necessary to maintain such #1 positions. Until then I had not been aware of a requirement that a President issue such a Strategy periodically. While I have not compared that many such Strategies, it seems that changes may be be minimal from President to President. But this may change. See Hans Binnendijk's NYTimes 3/24/13 essay "Rethinking U.S. Security Strategy" for perhaps some significant changes reflecting, inter alia, the economy.
Perhaps Prof. Griffin can address the role of Congress with respect to such a Strategy.
Over the history of the republic, both Congress and the President have limited declarations of war to conflicts with major nation states until the AUMF against al Qaeda and its allies. We engaged in decades of war with the Native American tribes and smaller nations without the benefit of declarations of war. Thus, there is no real difference with how the nation has treated small wars before and after WWII left the president with a large standing army.
Also, contrasting a declaration of war from an AUMF makes a distinction without a difference. Both are congressional permissions for the executive to use the military to wage war. The only effective difference is the term being used.
The only presidential prosecution of a major war against a nation state without congressional permission I can think of is the Korean War. Vietnam had the Tonkin Gulf Resolution, Iraq (I & II) and Afghanistan had AUMFs.
Is there really a problem here or a change after WWII?
Joe's reference to the late John Hart Ely's book recalled for me the following comment of mine at the Legal History Blog when Mary Dudziak ran it:
**** Shag from Brookline said...
Back in the early/mid 1970s John moved into the home to the rear of ours. My wife and I were invited to a party there that included other conlaw professors (including a young Henry Monaghan at nearby BU Law). It was a very pleasant time especially near the end when there were just a few of us drinking some good wine and talking law. I was in private practice and mentioned Thomas Reed Powell, my conlaw professor back in the fall of 1952 so that I could get into the flow of the discussion.
We invited John and his lovely wife for drinks a short time later. As the evening progressed, we started talking about music, especially jazz, when John said he played the saxophone. I brought out a C-melody saxophone that a client had given me and John demonstrated that he had not lost him [his] embrochure. That was quite a long and enjoyable evening.
John and his family, including their St. Bernard, left after what seemed only a year or so. I followed his career thereafter and was shocked by his early demise.
I think of him every once in a while, especially now with the extensive discourses on originalism versus living constitutionalism clogging the Internet. What might John have contributed to the discussions with his wisdom, charm and wit? Maybe I'll read this article on John and listen at the same time to the late Illinois Jacquet on tenor saxophone. April 5, 2008 at 11:49:00 AM EDT
I still think of John occasionally.
But no memoirs for me, to protect the innocent, near innocent and the guilty (putting myself in the latter category): Kiss, but don't tell.
Frank Snepp's Op-Ed in today's LATimes "The Vietnam syndrome - Regarding Iraq and Afghanistan, are we telling ourselves - and believing - the same false story we told in 1975" focuses on what these wars left behind. The Vietnam healing took a long time and is not yet complete. With Syria and Iran exploding or about to explode, the healing of and from Iraq and Afghanistan will be prolonged. What will our upcoming National Security Strategy tell us - that we have to remain the King of the Hill?
You might consider the faithful execution of the Laws power and treaty-based authorizations for the use of armed force (especially since Truman -- and note, Truman did not have an AUMF) -- see http://ssrn.com/abstract=2061835 This article in SSRN is especially useful re: the War Powers Resolution as well.
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