War
powers hardliners or “congressionalists,” think they know the answers to
questions like the Syrian intervention. In fact, they regard such questions as
easily answered. Hardliners believe that
Congress must approve any war, at least any “offensive” war, construed as any offensive military action whatsoever. They also believe the commander in chief
clause simply creates an office and not a substantive power and that the
president’s power to lead or control foreign affairs is not founded on the
Constitution but only on the statutory authority granted by Congress.
In
the course of writing my book Long Wars
and the Constitution I came to realize that the hardline position has many
problems. Some of these problems are
directly relevant to evaluating the Syrian intervention, such as the idea that
the president is limited to “defensive” action when acting unilaterally without
the consent of Congress. In this post, I
will stick pretty close to the Syrian intervention because a full treatment of the
flaws of the hardline position would try your patience. But in brief: the distinction between “offensive”
and “defensive” wars or military action is conceptually incoherent in light of
our full experience since 1789. Further,
many commentators agree that the commander in chief clause is a substantive
power and that the president is granted authority over foreign affairs not only
by longstanding practice and the logic of how government institutions work, but
also by the text of the Constitution itself.
The
Constitution does not in literal terms get in any president’s way in this
respect unless they want to start what the Office of Legal Counsel has termed a
“war in the constitutional sense,” a war such as Vietnam, the Persian Gulf War
of 1990-91, Afghanistan and Iraq. In
other words, the degree of congressional involvement that is required by the
Constitution is related, sensibly enough, to what the president wants to
do. There is an important link in this
respect between the purposes that animated the framers in the eighteenth
century and the experience of our own time.
As the framers understood from their experience with the Revolutionary
War, wars that summon the efforts of the nation as a whole absolutely require
interbranch deliberation. This is part
of the thinking that went into the “declare war” clause – marking out wars as special, not any sort of
military action. By the way, don’t get
too excited about OLC opinions – although I review all the opinions in Long Wars, let’s remember that it is ultimately
the views of the president that count, not the lawyers.
If
you are still bothered by the prospect of unilateral presidential action, I
would encourage you to ask a question that is different from the one I started
with. How did presidents acquire the
ability to act unilaterally in the first place?
Our first presidents had no such power and so the dispute over Obama’s proposed
action could not occur in the early republic.
Of course, the practical capacity and resources to act unilaterally, to
strike almost instantly anywhere in the world in service of America’s
interests, was granted to multiple presidents over the decades since 1945 by
multiple Congresses. Who put the
president in this position? We all did
and through the democratic process to boot.
In Long Wars, I argue that
this change in capacity changed the “constitutional order,” the way the
Constitution is implemented in the real world.
But
can we take back this power? Given
Congress’ broad authority over the substance of the military, along with the “declare
war” clause, of course we can. An analogy to the removal power may be helpful.
Under a widely accepted (though not universally shared) understanding of the
removal power, presidents have broad discretion to remove executive officials. At the same time, however, Congress can set
conditions by statute over the removal of any particular official. So it is with presidential power and the use
of force in foreign affairs. The president
has broad authority to act, but his authority can be limited through the
exercise of Congress’ constitutional powers.
If Congress wants to update the War Powers Resolution (clearly
constitutional on my account), that’s fine.
Such a reconsideration of the WPR is in fact long overdue.
So
the problems Obama has with the Syrian intervention are primarily problems of
policy and politics, not constitutional law.
The public is war-weary and skeptical, as Americans tend to be after
major wars that do not work out as planned.
Major wars such as Afghanistan and Iraq always exact major costs of all
kinds. Minor military interventions,
such as Obama’s previous foray into Libya, do not. They therefore are unlikely to pose a significant
danger to our system of separation of powers or, if you like, the contemporary constitutional
order.