I wanted to add more. I think I understand your argument better and didn’t address it in my previous post. First, let me make sure I’m restating it right.
You’re saying, the WPR breaks the “systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned” by limiting the Constitutional authority of the President to commit troops to the three circumstances listed. It explicitly states when the President can commit troops to hostilities. Committing troops because it’s in our national interest is not one of those three listed.
And you’re also stating, even though Presidents do not usually get Congressional approval before they commit troops, Congress still authorizes their actions (assuming they do) when they retroactively authorize it. Kind of like putting a ^ in the beginning of a previously written sentence and inserting Congressional authorization. So in effect, Congress is always (pre) authorizing the commitment of troops and authorization is one of the three Constitutional ways in which a President can commit troops. So gloss can’t be gleamed in those situations because the power to commit the troops came from Congressional authorization (albeit retroactively), not from the President.
At this point I’d need to rethink the WPR as written and whether it effectively breaks long systematic, ect. Presidential actions and my head can’t do it alone. It’s definitely interesting. However, sec 1547(d)(1) admits the WPR does not change existing Presidential Constitutional powers (even though they are not one of the three listed). And retroactive authorization seems like an imperfect patch to the problem. The WPR definitely invites the President to act unilaterally, and they try and hide/fix this by using retroactive authorization.
Do our treaty obligations figure in any of this? Treaties have the full force of federal law. Can the president say he is fulfilling out treaty obligations and the WPR is not at issue?
But presidents by giving their tacit approval by following it, are setting up precedent. The same way if you allow someone to walk across your property you can tacitly create a legal easement.
In reality it won’t be challenged as there is no way to do it. If you took this to the Supreme Court more than likely they would simply decline to hear the case, saying it was political in nature.
And what is the constitutional definition of war? Any action with troops? Any action beyond the 2 year financing of the army? An action of over 120 days?
And does the President as CinC have ultimate authority in military actions if it is not a war?
Grenada: Both houses voted to invoke the WPR, but no final legislation was passed. Troops were out within 60 days.
Panama: I was somewhat incorrect here. Congress passed legislation expressing the sense that Noriega should be removed, but there was no explicit authorization for the use of military force. Troops were out within 60 days.
Somalia: The FY 1994 Defense Authorization Act cut off funding for further operations in Somalia after 3/31/94 without further Congressional action. It’s a fig leaf, but I would consider this to be retroactive authorization.
Liberia: All except one that I’ve found deal with evacuation of citizens or protection of the Embassy or American government property, which I would consider to be defensive actions. There is a deployment on 6/9/03 (Bush II) to provide logistical support to African peace-keeping forces. I’ll have to investigate that one further.
I’m not sure what to think about the in-and-out in under 60 days events. I’ll have to ponder.
Yeah, this is basically my argument. Although I’m going to have to think about it some more as well.
EDIT: On the Obama memo, the vast majority of the cites are from other Attorney General opinions or Executive Letters. I don’t consider these to be that useful when determining what the law actually is in these kind of cases. I’ll have to find time to read the cited memos and letters to see if we’ve got a bit of circular reasoning going on there (ie, we have this power because we previously stated we have this power). There are a few court cites, which I’ll check out when I get a moment.
As was noted in post #4 (and yes it really happens this way with every president and yes seems like so much semantic bullshit but it is a distinction they make so as to not set up the precedent you are talking about):
In short, they comply with the WPR because they are being nice about it, not because they feel they have to.
Ok. We’re on the same page. I still stand by my previous post, though (#19). Further, it leaves an odd situation where the President can commit troops w/o Congressional authorization for less than 60 days and not be in violation of the WPR, but still acting unconstitutionally (assuming he didn’t commit troops in defense of the US). Because then it’s not one of the three listed ways the President can constitutionally commit troops. That seems like an odd result. For instance, Libya, assuming “no hostilities” was the sanest argument ever and thus Obama was only there for two weeks, would still leave Obama acting unconstitutionally because Congress never authorized those two weeks.
I don’t believe retroactive authorization can have the effect you claim; and if it doesn’t, then the argument falls apart because the President would be using some other, non-WPR, constutional power to unilaterally commit the troops. And Congress would be continually approving this every time they later authorize it. For now though, I don’t have anything other than a gut feeling about this. I can now see why Congress wants it to work that way and frankly I’m amazed at how the WPR operates and it’s attempts to address Presidential power so completely; it really tries to cover all the Youngstown bases and it never ceases to amaze me. Anyways, here’s Obama’s reasoning regarding the WPR “trying” to limit Presidential power to only three situations and why it fails:
From: Authority to Use Military Force in Libya
(emphasis added)
(I bolded)
But that’s exactly how Presidential gloss is formed, through circular reasoning. The President openly using power that’s not explicitly denied by Congress, again, and again. So openly doing, citing and doing again, citing those two and doing again, citing those three and doing again, ect.; all with approval or lack of objection by Congress, can at some point add gloss to his power. This memo is just another in a long line of memo’s claiming this power.
An authorization under the WPR has to make specific reference to the WPR. That’s what the WPR says. Since a cutoff of funds does not authorize anything under the WPR, it isn’t a retroactive authorization.
This touches on an issue which CoolHandCox raised in a previous post, which is whether a previous Congress can bind future Congress’s in this manner. IMO, the answer is no. Since the ability to declare war and regulate the forces is a Congressional power conferred by the Constitution, each Congress has the ability to set its own standards for authorizing the deployment of military force each time it decides to do so.
Ravenman, I’m having trouble finding where the WPR states that the form of statutory authorization requires an explicit reference to the WPR. Can you cite me where it occurs? Thanks.
As to the OP’s question of whether the WPR is constitutional, I’d point out that some parts are not, and some parts very likely are.
As far as Libya is concerned, the 60 day clock requiring the removal of troops is not unconstitutional according to the Executive. Per a 1980 OLC memo, they said that Congressional limitation on the use of armed forces was constitutional (and prior SC cases suggests this is true). No President since 1980’s has disputed it, including Obama with Libya (Nixon initially stated it was unconstitutional - the Executive office reversed that stance in 1980). Here’s the 1980 OLC Memo (PDF!). Here’s the relevant language:
This might explain why the President insists there are no longer hostilities to trigger the WPR (and that pesky 60 day clock).
The WPR itself says if one part is invalid, it shouldn’t effect the other parts. That’s probably accurate. So here, if there are in fact hostilities, then Obama has clearly violated the 60 day clock, because he does not dispute the constitutionality of that particular 60-day clock limitation, even if other sections are unconstitutional.
But why is that an odd result? The WPR could be rewritten to authorize any action of less than 60 days, which would remove the unconstitutionality of an under-60 action. Since it isn’t written that way, then the President would be acting unconstitutionally (unless he has some other Constitutional power to deploy for under-60 days).
Can you explain why? Congress (much to my dismay) uses retroactive authorization all over the place (e.g., Bush II wiretapping).
…
So, the problem I’m having with the quoted section is that all the actions mentioned have fig-leaf retroactive authorizations (in my view… Ravenman probably wouldn’t agree that those were retroactive authorizations). It’s extremely time-consuming to track down every piece of legislation associated with a particular military action, so I’m thinking that there are probably a few actions out there without any sort of authorization, but I’m relying on secondary/internet sources to figure exactly what Congress did or didn’t do. If it were the case that there were multiple under-60 actions that happened after the WPR was passed, then I’d have to concede that gloss has attached to at least that.
Sure. But from my point of view, the WPR breaks the chain of gloss. So, I want to see exactly what they are citing back to.
I cannot. I can’t find anything really online about retroactive authorization in general. There might be an answer in The Prize Cases, somewhere, but I’m mentally not in the mood. To be sure, I know Congress uses retroactive authorization, and I know it works; we’re just disagreeing over its effect in regards to the WPR/gloss.
Do you have anything that shows it does work the way you claim (maybe the actual authorization language for one of the WPR authorizations)? I’m not saying you’re wrong, just being lazy.
Here is an exhaustive list of authorizations for the use of force and declarations of war.
There seems to be one which is retroactive, and really, it isn’t a very enthusiastic blessing. The Lebanon resolution clearly puts limits on the deployment of US forces, even though forces had already been deployed when the resolution was passed. The resolution really was more about establishing conditions for the removal of troops, rather than keeping them there indefinitely.
That’s a great list! Exactly what I was looking for.
Re: 1983 Lebanon, I’m betting that falls under the Presidents constitutional powers to respond to an attack; so in my mind, WPR retroactive authorization wouldn’t be needed.
Also, and I just glanced, but there doesn’t seem to be a lot of authorizations in general compared to the amount of times troops have been sent into hostilities by the President.
I assume you’re responding to the Beirut bombing of the Marine barracks. That happened about two weeks after the use of force resolution was passed, and that use of force resolution was passed after the Marines were already sent to Lebanon.
Now, it’s true that this doesn’t include a specific WPR authorization, but this language lays out another form of authorization for the continuation of forces in Somalia. I suppose it doesn’t explicitly state that the deployment up until that point is okay, but it remarks on the US forces “significant contributions,” so it’s not a statement of disapproval. This is what I mean by fig-leaf authorization. It’s not the way I would like things to be run, but the bill acknowledges the deployment and puts new restrictions and reporting requirements on the deployment, and in my view that amounts to a retroactive authorization.