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
This post will summarize what I say in the paper about the presidentialist argument from practice. After President Truman made the decision to intervene in Korea, Secretary of State Dean Acheson had his department release a memorandum defending its constitutionality. In what became an especially long-running argument with presidentialists, the memo contended that there were 85 prior instances of presidents ordering military action without the consent of Congress.
Although I suspect the argument from practice is still popular with some, I have to say that this is one of the weakest arguments in the entire war powers debate. It should tell us something that proponents of this argument rarely stop to assess whether there are any congressional actions or practices that are relevant. Practice appears to be a field of argument where only actions by the executive count.
But let me also say that there is a sense in which presidentialists are on to something in relying so often on practice arguments, as opposed to text and history. Invoking practice does have the salutary effect of reminding us that there was something different about U.S. foreign policy post-Pearl Harbor. Something fundamental had changed, whether it is identified with America’s new global position, its overwhelming military and economic power, or its promotion of the United Nations. Of course this took the country away from its prewar isolationism, but talking about isolationism underestimates the change that occurred. After all, diplomatic historians have for some time been trying to get the point across that the isolationism of the 1920s and 30s was not characteristic of U.S. foreign policy as a whole. It has been marked by engagement with the world around us, including the great powers, since 1789. What was different were the consequences of global leadership. As I indicated in prior posts, I agree with presidentialists that the war powers debate should be understood against the background of U.S. foreign policy. By and large, presidents have not started wars or engaged in military conflicts simply to flex their muscles or win martial glory and electoral victory at the expense of American lives. Rather, they have been trying to advance U.S. foreign policy objectives. The trouble with the post-1950 presidentialist case for war powers is that U.S. diplomatic history does not yield evidence of a well-understood set of “precedents” or practices in favor of unilateral executive power to involve the nation in war. The instances that look like “war” in the twentieth century, such as the Boxer Rebellion and interventions in Latin America, are not only episodes of which no one is proud but also represent actions in pursuit of obsolete foreign policies that were repudiated by presidents such as FDR prior to 1950. And most of the nineteenth century instances are rescues or reprisals against pirates that, on closer inspection, involved the indiscriminate killing of indigenous (and non-piratical) populations.
The bigger problem with the argument from practice in the twentieth century is the existence of what I call “practice cut-offs.” These are events which show that prior instances of presidents ordering military action without asking Congress were not thought by anyone at the time to constitute a precedent or be part of a practice. It is likely that the very idea of an argument from practice based on past incidents is itself an artifact of America’s post-Pearl Harbor and Cold War foreign policy reality.
One such practice cut-off was the debate over the ratification of the Versailles Treaty. During his personal participation in the Paris Peace Conference, President Wilson drafted Article X of the proposed treaty as part of his effort to establish the League of Nations. The Article guaranteed the political independence and territorial integrity of League members against external aggression, and it required members to take action, even to the extent of using military force, against violators of this guarantee. During the Paris conference, the French delegation proposed that the League have an independent enforcement agency, an international military force with the ability to intervene anywhere in the world. Wilson objected that assigning U.S. troops to such a force was incompatible with the Constitution, specifically, the control Congress had over whether the U.S. engaged in war.
Once he returned home, Wilson had to defend the Treaty and Article X became a chief focus in the fight to get the Treaty ratified by the Senate. One argument used by treaty opponents was that Article X undermined Congress’s authority to decide when the U.S. went to war. Wilson responded that “the president would have to seek legislative authority in order to furnish ‘the necessary means of action,’ and he scoffed at the notion that Congress’s constitutional power to declare war might be impaired in this process.” However, the Treaty was defeated in the Senate partly because of the controversy over Article X and the worry that the role of Congress in authorizing war would be usurped.
In offering the debate over the Versailles Treaty as a practice cut-off, I do not mean to suggest that no one believed that the president had some unilateral authority either to defend the territory of the U.S. or to protect American lives or property abroad. But there were many dogs that did not bark in the Treaty debate. If there was a preexisting precedent, analogous to the status of well-settled judicial precedents, for the president to commit significant U.S. forces to military interventions abroad without authorization by Congress, no one noticed. Article X could have been defended by Wilson on the ground that it contemplated purely defensive actions against international aggression and the president already had such authority founded on precedent or practice. Both Wilson and Senator Henry Cabot Lodge, his chief congressional opponent, made no sign that they were even aware of such precedent or practice.
What the Treaty debate showed was that the Boxer Rebellion and the Latin American interventions were simply episodes in foreign policy and did not have the status of legal precedents. We must distinguish carefully between the later significance attributed to such episodes by postwar presidents and what presidents and congressional leaders thought at the time. Presidents such as McKinley did not in fact claim such episodes as the Boxer Rebellion as precedent for the kind of unilateral authority asserted by presidents after 1950. As a somewhat more conservative alternative, such interventions could have been regarded as part of a pattern or practice of unilateral presidential actions commanding troops to solve problems in foreign affairs. If so, however, the pattern or practice did not add up to what the State Department claimed in 1950 – the authority to send large forces to other countries to meet the challenge of foreign aggression. If such had been the case, after all, Wilson would have had a far more secure basis for arguing that the Treaty was not a departure from the language of the Constitution or its unwritten traditions.
Finally, there are two absolutely crucial episodes in U.S. diplomatic history against which the argument from practice makes little sense. The record of sometimes agonizing political and diplomatic maneuvering engaged in by President Wilson prior to U.S. involvement in the Great War and President Roosevelt prior to the Second World War is inexplicable if it is assumed that they already had, as a consequence of past precedent or practice, the power to commit U.S. forces to aid our eventual European allies. The political terrain would have been entirely different, one in which members of Congress would have been deferential to presidential leadership. In other words, it would have been similar to the terrain that prevailed after the beginning of the Cold War and Korea, not before.
In the next post, I will clear away the dishes of both congressionalist and presidentialist arguments and set the table afresh with my own approach to the problem of post-1950 presidential war powers.