Friday, December 11, 2015

Savage on War Powers

Stephen Griffin

I’ve worked my way through Charlie Savage’s substantial tome on Obama’s use of presidential power, Power Wars: Inside Obama’s Post-9/11 Presidency.  It’s a highly valuable account of executive lawyering on national security matters, if somewhat lengthy.  Having written on war powers in Long Wars and the Constitution, I was naturally interested in what Savage had to say on the subject.  Unfortunately I see a few problems with Savage’s rendering, even as he contends that many accounts of presidential war powers, particularly with respect to the War Powers Resolution, are mostly “myth.”

In my experience, myth is hard to get rid of when it comes to war powers.  With respect to Savage, the basic issue is not so much inaccuracy, but that he accepts an essentially liberal, post-Vietnam version of the development of presidential war powers.  Specifically, Savage argues that it is a myth that all presidents since Nixon have taken the position that the sixty day limit in the WPR is unconstitutional.  It is certainly a myth that all presidents have taken this position, but Republican presidents, starting with Reagan in 1983, have indeed taken this position consistently.  I demonstrate this at length in Long Wars.

In other words, the available evidence supports the proposition that the two parties disagree over the scope of presidential war powers and this has created a bifurcated legal reality.  Perhaps influenced by the leading article by Barron and Lederman, Savage cites the Carter administration’s OLC opinion endorsing the constitutionality of the sixty day limit.  But it is unlikely that anything produced by the Carter administration had much purchase with the Reaganites.  And it doesn’t help that the OLC opinion in question was a bit thin in terms of analysis.  In any case, the Reagan administration ignored it and created a new legal reality by promulgating President Reagan’s  October 1983 statement which explicitly contested the constitutionality of the WPR’s sixty day limit (in the context of an operation in Lebanon).

Savage is mostly right that the small-scale military operations launched by the Reagan and Bush 41 administrations did not exceed the sixty day limit and so the question was never properly posed (although Reagan’s deployment of Marines to Lebanon and a naval operation protecting oil tankers might be exceptions).  But he is missing that there is indeed a partisan disagreement.  So the constitutional problems he sees with the 1999 Kosovo operation in the Clinton administration and Libya in the Obama administration make sense only if you assume the liberal framework is correct.  For their part, Republicans rejected the constitutionality of the WPR and the sixty day limit long before the Kosovo operation.  Indeed, they tried to repeal the WPR in 1995 after taking control of the House of Representatives.  This Republican reality is reflected briefly in Savage’s account, as he notes House Speaker John Boehner held to the same opinion in 2011 as the Libya operation unfolded as Speaker Gingrich held in 1995.  Republicans have been very consistent in their views on the unconstitutionality of the WPR.  Parenthetically, the party split on war powers is rather like the case of the independent counsel law, which Republicans continued to regard as unconstitutional even after Morrison and which was finally killed by Democrats in the Clinton administration.

So because only liberals accept the WPR’s constitutionality, a question regarding adherence to the sixty day limit can arise meaningfully only when a Democrat occupies the White House.  Plenty of people, including constitutional scholars, found Obama’s justification for violation of the sixty day limit with respect to Libya (that it was not “hostilities” within the meaning of the WPR) to be highly implausible.  But it should be kept in mind that this was a debate going on only within liberal and Democratic ranks.  Pretty clearly, Republican administrations would not consider this a relevant issue.

This state of affairs implies that the “precedential” effect of anything that happened in the Obama administration is questionable.  In general, we can’t usefully understand the development of presidential war powers (or other sorts of informal constitutional changes) by using common law reasoning.  Looking for precedents or talking in terms of congressional “acquiescence” is time-honored but ultimately unhelpful.  At a minimum, we need to include a party-political variable in our discussions.  This complicates any story one tells about the course of war powers in the Obama administration.

To be fair, war powers is a small part of the book and Savage’s main theme is whether Obama was able to adhere to the views on executive power he expressed before he became president.  Savage pursues this theme throughout the book, often with real insight.  But it’s too bad his account of war powers is so one-sided.

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