Analyzing War Powers: Ways Forward (Part 3)

Stephen Griffin

 Despite the lack of constitutional amendments with respect to war powers, there are two inescapable legal changes that must be kept in mind when analyzing questions of war powers in the present.  Along the pathway pioneered by Bruce Ackerman, one might call them “amendment-level.”

The first is that the United States has global responsibilities (along with the ability to project power) it did not have in the eighteenth and nineteenth centuries, not only because the foreign policy landscape is different but because of duly ratified treaties and other agreements that are their de facto equivalent.  The second is that the War Powers Resolution (WPR) is, as a prominent scholar recently reminded us,  “binding law,” and, by its terms and purpose, remains a cutoff point for the legal relevance of historical executive practice.  In other words, although this has never been acknowledged by executive branch lawyers, it reset the table with respect not only to executive-legislative relations but with what counts as a sound argument.

There’s also a logical point that should be borne in mind – that the oft-cited distinction between offensive and defensive wars never made any sense, either in the eighteenth century or in our own.  As becomes evident if we treat war powers in the context of foreign affairs (see Part 1 of these posts), war is always a political and policy choice.  As such, it is governed by the same set of provisions in the Constitution irrespective of whether it can be classified as offensive or defensive.  Furthermore, war is a choice even if we are “suddenly attacked.”  Believe it or not, American history has featured a number of instances where U.S. military forces were egregiously attacked, yet no one jumped to the conclusion (as Hamilton once mistakenly argued) that we were automatically at war.  On top of this, it appears that the legal effect of the U.N. Charter (one of those treaties mentioned above) was to rule out recourse to offensive war as an instrument of foreign policy and also, by the way, declarations of war.  But that just moves us back to where we should be, which is whether Congress authorized the war in question.  As reviewed in post 2, where the past used declarations of war, we use AUMFs.  No harm, no foul.

At the risk of belaboring an argument, it is important to understand a further detail about the conventional war powers debate.  It is often set up this way: “The Constitution specifies it is Congress that is supposed to declare (authorize) war, but from the beginning of the republic presidents have committed troops to significant military actions without the consent of Congress.  We can’t make progress without acknowledging both of these truths.”  So people say!  But orienting the debate in this way is fundamentally skewed and skewered rather easily.

The problem is any inquiry into what happened in the past not only should be based on good evidence and be even-handed (in, say, acknowledging the inescapable presence of declarations and authorizations of war for America’s most significant military conflicts), but be securely rooted in the self-conscious understanding of the participants.  That means asking if officials (and, presumably, the American people as a whole) in the past understood unilateral executive actions to mean that presidents could initiate “war” on their own.  The evidence for this is decidedly lacking.  In my book, I focus on the debate over the Versailles Treaty after WWI as a good example.  Despite the many presidential military maneuvers in the nineteenth century, it is apparent that no one thought they were “precedents” for anything.  That was an invention of the executive branch later in the twentieth century.  Not to mention that this entire line of reasoning was featured prominently in the debate over the WPR – and decisively rejected by supermajorities in both houses of Congress.  At least in the war powers context, the problems with relying on historical practice or “gloss,” are legion.

What this means is that the war powers debate is not much of one, at least if we confine ourselves to the period before Truman and his successors came up with the idea historians labeled the “imperial presidency.”  We are indeed having a debate, but it is literally a “mid-century modern” one.  As time has worn on, it is increasingly a debate dominated by the analysis of legal opinions authored by the DOJ’s Office of Legal Counsel.  I’m sorry to say that I’m not impressed with the quality of their arguments.  Moreover, parsing OLC opinions is leading us away from an inquiry that is both more important as a general matter and terribly pressing right at this moment.

As I hope to demonstrate in a future article, the evidence has mounted throughout the twenty-first century that the policy costs of presidents refusing to involve Congress in a meaningful way in decisions for war are substantial.  Vietnam was an early example of this.  Put bluntly, the additional evidence from the conflicts in Afghanistan, Iraq, Libya, and now Iran is that the executive branch is incompetent on its own to make both decisions of whether to initiate war and how to conduct the war.  The example of failure to deliberate over war aims in all of these conflicts is particularly compelling.  What are our war aims in Iran?  If you’re badly confused, you’re not alone!  Indeed, similar problems plagued all of these executive-led conflicts. It is this evidence of decision making we should be reviewing with the greatest of care.

With respect to war powers, it seems as if the signal advantages Alexander Hamilton claimed for unified executive decision making in The Federalist can be realized properly only in a shared powers universe.  This is one in which both political branches share responsibility and accountability for key decisions like whether and how to go to war.  Over time, as I argued in Long Wars and the Constitution, this should produce a “cycle of accountability” in which a shared learned experience is possible, hopefully for the better.

Our recent history shows that the constitutional plan for war makes sense – that is, without effective congressional participation executive decision making for war is inherently infirm, arguably as the eighteenth century founding generation anticipated.  The point of going through Congress is not to check a box, but rather to provide fundamental legitimacy to an inherently risky course of action and provide a backstop to an executive congenitally unable to make reasonable and effective foreign affairs and military decisions.