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
My war powers series has been on hiatus because I was attending APSA and catching up after returning. Time to finish, although I would like to thank Julie Novkov of the University of Albany, SUNY for taking the time to read my paper and comment on it at the conference. I also appreciated the comments from the audience.
In Part 3, I said I would reset the table of the war powers debate. The first step is to appreciate that neither the congressionalist or presidentialist perspective can explain what happened in 1950 when President Truman acted deliberately to change a preexisting constitutional order by sending U.S. armed forces into action in Korea. For presidentialists, nothing happened at all because they believe Truman’s action was justified by preexisting legal rules and practices. My prior posts have suggested this approach is without foundation. But congressionalists have it no better. From their perspective, Truman’s action was unconstitutional and any subsequent assertions of presidential power based on it were also unconstitutional. This makes it difficult to explain why such claims have has persisted since 1950. Congressionalists seem to be in the position claimed by conservatives in the 1950s – athwart history yelling “stop!”
To get out of this bog we have to stop thinking about the war powers debate as if it were occurring in court, in what I call the “legalized” Constitution. If it were, after all, and congressionalists were correct in their reading of the law (as I believe), then courts would have stopped Truman and prevented later presidents from making excessive claims. But we don’t live in an alternate universe where there are well-developed Supreme Court precedents establishing the legality (or not) of Korea, Vietnam, Cambodia, CIA incursions into various countries, Grenada, Panama, the Persian Gulf, and so on.
We can make progress by employing an approach that recognizes the reality of informal constitutional change, that is, change occurring outside Article V amendments and judicial precedent. Such change is necessarily non-legal, but constitutional nonetheless. Our particular constitutional system makes this kind of change possible because Article V amendments, particularly with respect to the powers of government, are quite rare and the powers of foreign affairs have generally not been addressed by courts. This approach suggests we track potential change through developments in state institutions, in their institutional capacity to make various constitutional provisions operational.
Following this approach, we ask whether Truman’s action occurred in the sphere of the legalized or non-legalized Constitution. Of course, for the reasons already detailed, it occurred in the non-legalized sphere. This helps account for Truman’s success. Truman and his advisers did not have to worry about conforming their actions to judicial tests. They could, so to speak, create their own constitutional reality by being the first mover in a contested constitutional arena. We also ask whether Truman took advantage of preexisting state capacities and created new ones. Here, there is a clear contrast with the situation prevailing prior to Pearl Harbor. Truman had institutional means that FDR lacked – notably, a naval fleet and troops based in conquered Japan. These institutional means allowed Truman to create a new capacity for the presidential office – the ability to intervene with U.S. armed forces in foreign military conflicts without asking for congressional permission. The Cold War presidency was truly on its way. This is a short version of the analysis I provide in the APSA paper (which I am happy to send to scholars but I have taken down from SSRN because it is incomplete). But I believe it points us in the right direction. We cannot make progress understanding the contemporary realities of presidential power by pretending they occur in an adjudicative framework that simply does not exist. At the same time, we should also be wary of assuming presidents simply do as they please because war powers lie in the realm of “politics.” This begs all sorts of questions, including why presidents keep presenting elaborate constitutional rationales for their actions and why their actions create institutional realities for later presidents (and later Congresses).
Here’s how I conclude the Korea section in the paper:
To understand the consequences of Truman’s bold move, consider what happened after the dust had settled from his initial decisions. Everyone agrees that Truman enjoyed near-unanimous support at first. But subsequent events showed that the failure to obtain congressional authorization was not a mere formality. Without a resolution, Congress had a constitutional excuse it could use to avoid responsibility for the war. The Korean War thus became “Truman’s war.” There were also more subtle effects. Without the process of authorization to clarify war aims, key choices went overlooked. For there were two presidential decisions for war in Korea. The initial June 1950 decision to respond to the North Korean invasion to restore the status quo was the first, as Truman ordered General MacArthur not to go north of the 38th parallel. The second was the September decision to cross the parallel in an effort to unite Korea. This decision led to a counter-intervention by China, a military disaster of the first order that transformed the nature of the war. Truman and his advisers never wanted a general war with either the Soviet Union or China. But the rationale for limited war was not explained fully by the administration until Truman dismissed MacArthur in 1951. By then, the public had stopped listening and it was too late to justify the war in a constitutionally appropriate way.
The Korea decision demonstrated the key role of informal constitutional change in the postwar constitutional order. Truman was able to change the constitutional power of the presidency by creating a capacity to intervene abroad with a major commitment of U.S. armed forces. He did this by leveraging the existing resources of executive branch institutions, acting decisively to be the first mover, and articulating an easy to understand rationale that borrowed from the forms of legal argument without being tied to them. Equally important, the sequence of events after the decision demonstrates the relevance of the institutional order established by the Constitution even in an area concededly beyond the power of the judiciary. That most members of Congress and the public initially agreed with Truman did not alter the structure of accountability and responsibility that flowed from the Constitution itself. It is thus a profound mistake to assume that because informal constitutional arrangements are not judicially enforced that they are therefore in the “political” realm where political actors can do as they wish. Of course, they may want to do as they wish, as Truman wanted to pursue the war effort without outside interference. But the aftermath of the Korea decision showed the persistent and unmistakable tidal force of the Constitution and the order it created.