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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I hope to be blogging for a few posts on the paper I will present at APSA in Toronto next week (Thursday, Sept. 3 at 8:00 a.m). It’s on war powers and constitutional change, part of a larger project called (for now) The Crisis of the Presidency: War and the Future of the Constitution.
It has arguably been awhile since we had a major debate over the power of the president to take the nation into war without congressional approval. The last one occurred as President George H.W. Bush shifted U.S. troops from a defensive to offensive posture in preparation to kick Saddam Hussein out of Kuwait in 1991. In another sense, however, we have been in continuous debate since 9/11 about the appropriate reach of the commander in chief power and hence, presidential war powers in general. This makes it all the more pressing to understand the history of the controversy and why there is so often such sharp disagreement over the scope of the president’s constitutional powers, as well as the appropriate role of Congress and the judiciary. Of course, I don’t take on the task of telling the entire history of the war powers controversy in the paper. But it is worth starting with a plea to those historians who might be interested that a study of the war powers debate as history is long overdue. By my estimation, the “modern” or “contemporary” controversy over war powers started in July 1950 when Dean Acheson had the State Department put out an official constitutional justification for President Truman’s decision to intervene in Korea. Many of the subsequent defenders of a broad scope for presidential war powers, especially during the Vietnam era, had some ties to this initial decision and to Acheson. Eugene Rostow was a prominent example. It remains the case that most presidential defenders have had some executive experience, whether in a Republican administration (John Yoo) or Democratic (Jeff Powell and Walter Dellinger). I think you could tell an interesting historical story about how their practical experience figured in their constitutional views, as well as mixing in the story of the Senator Fulbright’s hearings on “national commitments,” Vietnam, and the War Powers Resolution.
In the opinion of quite a few scholars, Truman’s decision was a sharp break from past practice (I call this the “1950 thesis” in the paper) and I spend part of the paper arguing that they are correct. In saying this, I should caution that I didn’t write the paper to adjudicate between the two sides in the war powers controversy. For convenience, we can call them “congressionalist” and “presidentialist.” I find the congressionalist position easier to describe. It holds that all standard methods of constitutional interpretation support a reading of the Constitution in which Congress must authorize a war for it to be constitutional. By contrast, there is more than one version of the presidentialist position. Some contest text and history directly and find a broad scope for presidential war power on the basis of eighteenth century evidence (Yoo). Others start from presidential power in foreign affairs generally, disclaim reliance on evidence of intent as opposed to subsequent practice and make much of the effect of the new international legal order, founded in the UN Charter, on the war powers of the president (Rostow).
My aim is to show what a theory of informal constitutional change can contribute to the war powers debate and our understanding of how the Constitution operates with respect to foreign affairs, especially after World War II. So I’m not trying to settle the war powers debate as such. But I will use the remainder of this post and the next to briefly sketch where I come out on the most salient issues. To be extremely brief, I agree with the legal case put forward by congressionalists, while being in substantial sympathy with the policy case put forward by presidentialists. As so many scholars have concluded, the presidentialist case is weak when judged by the standard methods and tools of legal and constitutional interpretation. But the congressionalist case is also not without difficulties. Because they usually bypass the foreign policy context in which post-1950 presidents have exercised war powers, the congressionalist case risks being both correct and irrelevant. And one of my aims is to show how this could be true.
I’ll note parenthetically that one reason the presidentialist case is harder to get into focus is because presidentialists usually don’t believe the debate is about “war” powers as such. You might regard presidentialists as those who think war, in the sense of total war like World War II, is obsolete, along with the declarations that started them. The issue to them is the use of military force in support of the nation’s foreign policy. As affirmed by many executive officials over the last few decades, “war” or armed conflict is simply another instrument in the pursuit of the nation’s foreign policy objectives (we’ll ignore for now the possibility that this policy approach may conflict with the UN Charter). Hence they see the concentration on “war” by congressionalists as anachronistic. There is a good explanatory point lurking here. Along with various reputable international legal scholars, presidentialists believe that war was outlawed or made irrelevant by the UN Charter. Declarations of war were thus outmoded. This does appear to be a very good explanation of why there have been no declarations of war, not only by the U.S., but worldwide since World War II. However, the normative relationship of this change in the international legal order to the Constitution’s “declare war” clause is far more unclear. While this clause could be read as referring in a literal way to documents called “declarations of war,” it could also be read plausibly as creating an enumerated power in Congress to authorize wars. And “war” could be understood in a common sense way as a major military conflict, rather than a term of art.
Because of the foregoing considerations, it is widely believed that the historical practice of U.S. foreign policy tends to support the presidentialist case. Historically, presidentialists beginning with Truman and Acheson have relied heavily on subsequent practice to make their case. One of the arguments I develop when I discuss the traditional war powers debate is that the opposite is more nearly true, at least prior to 1950. As long as we get to count examples fairly, examination of subsequent practice from 1789 to 1950 favors the congressionalists on-balance. I’ll provide some detail, along with my evaluation of the arguments in the traditional war powers debate, in the next post.