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
As I said in my first post, my aim in reviewing the war powers debate is not to adjudicate between the congressionalist and presidentialist viewpoints and award a trophy to the point of view that is most correct. Rather, I am slicing through the debate at a specific point – 1950, when President Truman arguably deviated from law and practice by refusing to ask Congress to authorize the military intervention in Korea.
This does make my presentation different than some of the contributions to the traditional debate. For example, I am not interested in the constitutionality or effectiveness of the War Powers Resolution and I do not consider the argument, used by some presidentialists, that the Korea intervention plus other subsequent practice constitute “precedents” for constitutional law today. I am primarily interested in studying Korea as an episode of informal constitutional change, although my analysis does support the idea that it was where the prior constitutional order ran off the rails, thus making any subsequent “precedents” of dubious value. Further, I am interested only in testing official claims of war powers, not what scholars have argued per se. What matters for constitutional change is the power presidents have claimed and acted upon, not whether scholars have produced defensible theories of how to allocate the war powers contained in the Constitution.
Nonetheless, my project does intersect with the traditional war powers debate in several substantial ways. Because I am interested in informal constitutional change, I am trying to show that the Korea decision did represent such a change and so I argue that presidentialist claims that the decision had a strong basis in prior law are incorrect. This of course includes a large swath of standard presidentialist arguments.
I divide the arguments into two sorts: those based on text and history and those based on subsequent practice. With respect to text and history, I distinguish two questions that should be addressed: (1) whether Congress must authorize war before it can be constitutional and (2) whether the president has authority independent of Congress to involve the nation in a war. The evidence is relatively clear that presidents post-1950 have denied (1) and affirmed (2), especially on the basis of the Korea intervention, which has often been claimed as a “precedent.” Once we appreciate that (2) is a live issue, this means a wider range of eighteenth century evidence is relevant than is ordinarily thought to be the case. For example, many scholars believe the only relevant evidence on war powers at the Federal Convention comes from the brief debate on August 17 in which the word “make” was struck and “declare” was inserted into the “declare war” clause of the draft Constitution. However, if our concern is with (2), there is additional evidence available, especially from the initial June 1 debate on the nature of executive power.
When we evaluate a dispute over what history tells us, we should ask which perspective accounts for the evidence in the most coherent and fruitful way. What is impressive about the evidence in favor of the congressionalist position on both (1) and (2) is its consistency. From the adoption of the Articles of Confederation onward through the administrations of the first presidents, the founding generation not only agreed on the location of the war power in an assembly or legislature, they agreed on why they were agreeing – that republican principles allowed for no other option. Congressionalists thus have a much easier time constructing a consistent narrative of the war power in the eighteenth century than do presidentialists. I conclude that (1) should probably be answered affirmatively and (2) almost certainly negatively on the basis of text and history.
In addressing these issues, I devote considerable attention to the work of John Yoo. In his book The Powers of War and Peace, Yoo presents the most recent comprehensive presidentialist case founded mainly on text and eighteenth century history. Yoo does note arguments from practice, but does not devote a great deal of attention to them. Very briefly, I argue that Yoo’s case is built on inferential rather than direct evidence about the meaning of the Constitution and a legal, rather than a historical argument. To put it another way, Yoo cannot cite any individual from the framing and ratification period who supported (or even articulated) the presidentialist position he defends. His argument is built by inference. Further, Yoo’s entire argument is based on taking it as a legal given that in the British tradition, the executive had the power to make war. While this may be true, Yoo uses this legal proposition as an excuse to ignore historical evidence that the framers deliberately chose to deviate from this tradition. Yoo reads all the historical evidence through the lens of this legal proposition, discounting any inconsistencies. He refuses to consider the possibility that the framers thought of themselves as founding a new legal and constitutional order, an analytical mistake of the first order.
I then move to considering arguments from practice. In today’s post, I will just make some preliminary points. This complex issue has often been discussed in terms of compiling lists of those instances where presidents have purportedly exercised war-initiating authority. It is often overlooked that arguments from “practice” then proceed in two distinct ways. An appeal to practice might be made along common law lines in order to establish the existence of a “precedent” or new legal rule. Presumably a single instance would not establish a “rule,” although this is often left unclear. It is usually asserted that there are a string of instances which are sufficiently similar or analogous so that they support the new rule. A second kind of argument demonstrates that practice has established a policy that future officials must respect on pragmatic, consequentialist grounds. This sort of argument does not necessarily involve reasoning by analogy. The events that form the basis of the claim may be dissimilar, yet it is asserted that they belong to a common area of policy that follows a defensible rationale.
These distinct arguments create the possibility that the parties to the debate over practice have been talking past each other. Congressionalists often criticize the “lists of wars” offered by presidentialists on the ground that no one thinks the U.S. has gone to war 85, 125 or 153 times in its history. If the point of such lists is to provide pre-1950 analogues to Korea, most would concede the instances of true presidentially-initiated wars are few in number. On the other hand, presidentialists may be making a different argument. Their favored arena is the making of U.S. foreign policy, with military action being one instrument among others. They contend that each presidentially authorized military action has been taken in the course of pursuing the nation’s foreign policy objectives, in which presidents have exercised leadership while also sharing authority with Congress from the early republic onwards.
These different arguments do have the common characteristic that in both, congressionalists have been on the defensive. Practice is often understood as an arena where presidentialists have had the upper hand. Although it is not my purpose to adjudicate between the two sides, it is hard to see why. If our focus is “war,” there is little doubt that, pre-1950, all of America’s most consequential, successful, terrible, and bloody military conflicts were authorized by Congress. More on arguments from practice in Part 3.