Monday, January 16, 2023

When History Becomes Precedent in the OLC

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Mary Dudziak

Congratulations to Jack on Balkinization’s 20th anniversary!

This essay takes up an important methodological problem in the way history is relied on in legal interpretation. History matters to legal outcomes – for example in originalism and in “gloss of history” analysis in the separation of powers. Historical ideas can become embedded in precedent – but history itself is not law. It is evidentiary. Understandings of history evolve over time as new evidence is uncovered and historians employ revised methods. What should happen when legal interpretation is informed by ideas about history that historians have revised or discarded?

In caselaw, lawyers and historians can rely on new historical evidence to challenge previous rulings, as the Organization for Americans Historians did in Obergefell v. Hodges. In the war powers context, however, the most relevant opinions are usually written by the Office of Legal Counsel, often relying on gloss of history analysis. When outdated historical understandings are embedded in OLC opinions, there is no open and transparent adversary process, and no corrective. Instead, the outdated history is built into OLC precedent, and lives on.

I take up this problem in a forthcoming Michigan Law Review article The Gloss of War, which uses a deep dive into Korean War history to discuss the way the “history” in law can diverge from historical scholarship which, in military history, changes as records become available and historians revise their approach, for example paying more attention to the experience of civilians in war zones. The Korean War, a major conflict in which the president declined to seek Congressional authorization, plays an important role in OLC war powers analysis. The historiography of the war has changed substantially, but the war as historical gloss does not change. Instead, wars, once invoked in law, continue to serve as straightforward data points. 

A quick “gloss” primer[1]: Justice Felix Frankfurter introduced the idea in his 1952  Steel Seizure Case concurrence, arguing that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.” He wrote:

a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.

Executive branch lawyers rely on this idea when crafting opinions about the legality of presidential action, including military intervention without Congressional authorization. The history of past military conflicts informs their analysis of whether a new unilateral military intervention is within the scope of presidential power. In practice, each conflict becomes a building block for the next one, expanding the legal basis for unilateral presidential power.

This analysis relies on history, but the underlying history is not subject to revision. Because such opinions are often classified, transparency and external criticism are hampered.

The Korean War is an example of the reliance in law on outdated history. President Harry Truman minimized the conflict, refusing to call it a “war.” My research shows that he did not seriously contemplate whether to ask Congress for a war authorization until after U.S. troops were in battle, and then proceeded without Congressional authorization for political reasons. He also ordered U.S. military engagement before the U.N. Security Council authorized it, even though the administration later pointed to the UNSC resolution as providing legal authority for war. The contemporaneous legal document most often cited on the legal basis for the war, a 1950 State Department opinion, curiously was edited when published in a way that obscures the timing of Truman’s action in advance of the UNSC.

Although Truman justified his action by minimizing the war, calling it a “police action,” in the end, the conflict resulted in 2-3 million deaths. Many were civilian casualties from U.S. aerial bombing – the U.S. flew over a million sorties and dropped 386,027 tons of explosives.[2] If a conflict with that level of destruction was not a “war,” then the concept of war has no meaning.

Often called the “forgotten war,” historians and researchers over the years have excavated the war’s brutal character – part of what Paul Chamberlain calls “the Cold War’s killing fields.” Investigative reporters exposed an American massacre of Korean civilians. Although historiographic debate on aspects of the war continues, of course, the opening of Russian and Chinese archives solved important puzzles, clarifying the nature of the initial outbreak of war. Truman thought that the North Korean invasion was part of a master plan on the part of Stalin for Communist world domination, but the archival record reflects Korean initiative driven by conflict following the peninsula’s post-WWII division, and Soviet and Chinese initial reluctance for all-out war.

Within the first two days after the North Korean invasion, members of Congress raised the question of whether the Korean conflict was a civil war, whether U.S. interests were at stake, and whether Truman could act without Congressional authorization. Many shared the concerns of Senator Robert Taft who argued that there was “no legal authority for what he has done” when Truman ordered U.S. military engagement, and warned that if Congress did not push back, these actions would “terminate[] for all time the right of Congress to declare war.”[3] Instead of welcoming Congressional support, concern that an affirmative vote might not be unanimous – something neither Woodrow Wilson nor FDR received for WWI or II – undermined Truman’s willingness to consider a war resolution.[4] 

The contemporary historical record on Korea reveals a failure to respect Congress’s role, and an effort to minimize the brutality. Injured soldiers felt forgotten at the time, and the experience of Koreans, north and south, was simply off the radar for the U.S. public. Since that time, if there has been a reckoning with the past in works of history and journalism, it has not made inroads in the legal understanding of the war and its role as precedent. Instead, the war continues to play an important role in the legal basis for expansive unilateral presidential power.

In Office of Legal Counsel opinions, the Korea War essentially shrank the constitutional concept of war – so that anything smaller than that catastrophic war did not require Congressional authorization.[5] For example, Assistant Attorney General William Rehnquist relied on the Korean War in an OLC memo supporting President Richard Nixon’s power to invade Cambodia. In the memo, an “all-out war” required Congressional authorization, but more limited conflicts did not. Rehnquist essentially followed Truman’s lead on Korea. If the Korean war was a “police action,” not a war, then for Rehnquist Cambodia was also a “limited war,” and Nixon’s unilateral decision to invade Cambodia was lawful.[6] Scholarship on the Korean War belies the idea that Korea was a limited war, and Truman’s disregard for Congress’s role, evident in the archival record, should be a cautionary tale rather than a legal precedent worthy of replicating. Instead, in the Cambodia opinion and others, the fact that a president did something became evidence of their power to do it, thereby enabling later presidents to build upon it.

Later wars were smaller than Korea and Indochina, but that did not make the Korean precedent unimportant. Essentially, the Korean War provided a legal ceiling beyond which unilateral power, at least theoretically, could not go.[7] Over time, as technology enabled more force with fewer U.S. troops, all wars were smaller than Korea, so that the ceiling was simply never reached. Seeking a war authorization has been rendered a presidential choice rather than a constitutional command.

In an era when Americans have seemingly lost interest in their country’s ongoing war,[8] legal restraints are especially important. Gloss of history analysis, at least as it functions in the OLC, builds upon itself, so that the doctrine most often works as a one-way ratchet for executive power. What Frankfurter called “the gloss which life has written” upon the words of the Constitution has a deep past. Reaching back to constitutional fundamentals, and discarding examples of presidential disregard of constitutional limits, could infuse democratic values and the capacity for restraint into the gloss of history. 

Mary L. Dudziak is the President’s Humanities Fellow at Emory University’s Fox Center for Humanistic Inquiry, and Asa Griggs Candler Professor of Law at Emory University School of Law. You can reach her by e-mail at

[1] Legal scholar Curtis Bradley is the leading proponent of this methodology, with a forthcoming book on the topic.

[2] Marilyn B. Young, Bombing Civilians: From the Twentieth to the Twenty-First Centuries, in Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism 139, 142 (Mark Philip Bradley and Mary L. Dudziak, eds., 2021).

[3] Mary L. Dudziak, The Gloss of War, 121 Mich. L. Rev. at 25- 27, 30-32, 34-38 (forthcoming 2023) (page numbering in current prepublication copy). There are, of course, different views on whether a war declaration was required. See especially Mariah Zeisberg, War Powers: The Politics of Constitutional Authority (2013), arguing that through Congressional action at the time, including appropriations, Congress and the president together produced constitutional authority for war. In my view, in spite of the urgency following the North Korean invasion, there was time for Truman seek a war declaration, and failing to do so eroded Congress’s power to act when it matters most: before engaging in significant U.S. military action. Once troops are under fire, the rally-round-the-flag effect makes it exceedingly more difficult to vote against the president.

[4] Dudziak, The Gloss of War, 121 Mich. L. Rev. at 42 (page numbering in current prepublication copy).

[5] The Korean War also informs another important war powers argument in OLC memos: the idea that presidents can act unilaterally to protect U.S. “interests,” and that supporting the United Nations is a sufficient interest. See Dudziak, The Gloss of War, at Part III (A)(2).

[6] The President and the War Power: South Vietnam and the Cambodian Sanctuaries, 1 Op. O.L.C. Supp. 321 (1970).

[7] Congress approved a military draft and appropriated funds for the war, but members of Congress are reluctant to fail to support deployed troops. Truman’s unilateralism was in his decision to go to war in the first place – the point when voices of restraint can make a difference.

[8] Young, The Big Sleep, Making the Forever War, at 132.

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