War Powers, Congress, and the Executive

[GomiBoy]

So I was reading. And thinking. Ok, it was slow at work and I was bored. But anyways,

John Woo, the former Deputy AG, concluded in his findings on behalf of the Executive post 9-11, that the President in responding to an emergency like can pretty much do whatever he wishes wherever he wishes to whomever he wishes. From here. Of course, this is one of the President’s lawyers, so I think he might have been writing on behalf of his client, but it sure seems to have taken off as a basis for the philosophy of pre-emptive attack.

In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President’s constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. (32) In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

[RIGHT] JOHN C. YOO

Deputy Assistant Attorney General[/RIGHT]

I actually agree with this, mostly. The President is empowered by the Constitution to be the go-to guy in time of Emergency. He is also clearly empowered as the CinC, and the Federalist Papers clearly show the wishes of the Founders to have a single commander in time of war or emergency of all the military. All fine there then (although I find the language ‘placing any limits on the President’s determinations’ to be incredibly and unnecessarily arrogant, but c’est la vie). There’s a bit of a legal jump to give the President the power to attack anyone anywhere, related or not to the original attacks, that I don’t think would stand up to legal scrutiny, but I can accept the broad point espoused which is that it is solely the duty of the President to respond.

The problem I have is this – who defines the emergency? Who defines when it ends? 9-11 was pretty obviously an emergency that required a strong and immediate response – Bush couldn’t wait to do something until Congress convened and debated about it. We had to do something to respond. But what? Was his duty solely to defend the US until such time as Congress could convene and do what they must? Since there was no obvious military threat (Afghanistan may have been where they were hiding, but it’s not like they were going anywhere or going to invade us the next day) did his duty solely extend to defence of the US and our assets abroad? I’m not questioning the response, as it was later supported by Congressional resolution, just wondering what exactly is the duty of the President should an attack happen again?

Now in comes the War Powers Act. For times when Congress is unwilling to declare war, the President can use military force for up to 60 days. The purpose of this is to allow the President to immediately respond to a growing threat, yet still give time for Congress to ultimately judge if this is a cause that they support. If they vote a resolution supporting aggressive action, it’s all legal. If they don’t, the President has another 30 days to bring the boys home. Considering the last ‘declared’ war in US History was WW2, how did this situation come about?

So I read some about John Hart Ely, who wrote a book called “War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath.” Remarkable guy. One of the most quoted legal scholars in the history of the US, used to be the dean of Stanford Law School. Now, I haven’t been able to find a direct quote, but his book was reviewed and analyzed here

Many areas of constitutional law generate issues of Byzantine complexity, but this one does not. “The power to declare war was constitutionally vested in Congress. The debates, and early practice, establish that this meant that all wars, big or small, 'declared in so many words or not–most weren’t, even then–had to be legislatively authorized. Indeed, only one delegate to either the Philadelphia [Constitutional] convention or any of the state ratifying conventions, Pierce Butler, is recorded as suggesting that authority to start a war be vested in the president” (p. 3, notes omitted). Butlers view was at once repudiated.

More (same source):

But if most presidents on this issue obeyed the constitution, how did we get where we are today? The key figure in the transition is that much-overrated haberdasher, Harry Truman. During the Korean “police action,” Truman went out of his way not to seek Congressional approval for his actions. His supporters claimed that as Commander-in-Chief it was within his power to start wars without congressional approval. Ely, not one to mince words, calls this an “outrageous rationale” (p. 152).

Since Truman, the presidential record has been a sorry one. With the exception of Dwight Eisenhower, presidents have continued the path of usurpation pioneered by the man who gave us Hiroshima. But the blame for the violation of the Constitution does not lie solely with our recent presidents. Congress has colluded with them: as Ely sees matters, Congress prefers that the president assume the burden of committing our troops to battle. If a war turns out badly, he, not Congress, will be blamed; if it turns out well, Congress can bask in the presidents reflected glory. In addition, individual members of Congress aim primarily to serve the interests of their constituents: they have little to gain by voting to send troops into combat. Presidential usurpation of the war power suits many Congressmen quite well.

Should we go along with the new order of things? Ely thinks not. The original understanding of the war powers clause makes eminent good sense. The framers of the Constitution wished to make wars difficult to start. It is easier for a single person to plunge the country into war, should the decision rest with him alone, than for a group continually sensitive to popular approval to do so.

And the final bit (same source):

Defenders of the present order will no doubt dismiss the appeal to Congress as an anachronism. Do not the imperatives of modern war demand swift and sudden action? How can one insist on a leisurely appeal to Congress, when the fate of the world may require instant response?

As usual, Ely has anticipated the objection: “Occasionally–though nowhere near as often as enthusiasts would have us believe–military emergencies can develop faster than Congress can convene and react. This was also true in the late eighteenth century–it was probably truer than it is today. . . . The founders understood this, though, and consequently reserved to the president authority to respond on his own to 'sudden attacks until there was time for Congress to convene and confer. In such situations the president could respond militarily and seek authorization simultaneously” (p. 6, note omitted).

So has the War Powers Act moved away from the Founder’s intention? Have we, in fact, turned ourselves into a country ready-made for war at a moment’s notice without any of the discussion or reticence that would be required from a deliberative and popularly elected body like Congress?

And finally, have we been plunged into a state of eternal warfare and eternal emergency, from which there is no end, and due to which no limit to the freedoms we stand to loose?

[John_Mace]

No. Congress can act fast when it needs to. If we need to change the constiution, we have an amendment process for that.

If we’re attacked outright by a foreign power, I have no doubt that Congress can turn around a declaration of war in short order. If we’re attacked sureptitiously, then we NEED to take the time to determine exactly who is responsible. And, if we want to wage a pre-emptive war (eg, Iraq), then we ESPECIALLY need Congress to authorize that action. Even in that latter case we’ve seen that Congress isn’t an effective breaking mechanism on an overzealous President.

[MEBuckner]

@John Mace

No. Congress can act fast when it needs to.

Indeed. It was almost a month before we attacked in Afghanistan after the September 11 attacks. And back in 1941, Congress declared war on Japan on December 8.

[GomiBoy]

@MEBuckner

Indeed. It was almost a month before we attacked in Afghanistan after the September 11 attacks. And back in 1941, Congress declared war on Japan on December 8.

So should the war powers act be abandoned? Is it contrary to the wishes of the Founders, and not enough of a brake on the process of going to war as they wished?

[MEBuckner]

Congress should have grown a spine a long time ago, but at this point I fear we’ll never get things back to where the Constitution says they should be. Granted, although every President of either party routinely asserts an alleged prerogative as “commander-in-chief” to basically invade China without Congressional approval if they feel like it, as a practical matter for really serious military action Presidents tend to seek some sort of Congressional resolution beforehand. You could argue that these “resolutions” are really good enough, constitutionally speaking, even though they don’t actually come right out and say “we declare war” in so many words. However, no Congressman could plausibly argue “well, sure, I voted to declare war on Ruritania, but I just wanted to give the President authority to credibly threaten the use of force so he could make diplomacy work; I didn’t think he’d actually go and, you know, wage war”. Formal declarations of war would force a certain moral clarity on everyone; but for that very reason few politicians really want them.

[SteveG1]

It reads like John Woo is just another one of Bush’s people trying to justify giving him (Bush) the power to do whatever he pleases - because we are at war. Just like Ashcroft and Gonzales tried to do.

Sandra Day O’Connor and the Supreme Courtalready answered this, but the message didn’t sink in.

A state of war does not give the president a blank check.

A state of war does not suspend the Constitution or the law. Especially a state of war that was created by that very same president for extremely dubious, unclear, and suspect reasons. This administration is slowly inching towards giving the president dictatorial powers. A loose cannon such as Bush or Cheney, needs more oversight and control by Congress and the Court - not less.

[David_Simmons]

I have neither the training nor the specific background to counter Yoo’s analysis. However I do know that the analysis of complex subjects seldom, and more likely never, yields as clear-cut an answer as he gives. There are always exceptions. My concrete difficulty is that his analysis allows one individual to take an action with dire consequences for the nation without any checks or balances at all. And I think the provision of such checks and balances on the actions of government officials are an even more fundamental intent of the framers than Woo’s cites. For example, the framers gave the power to make war to the Congress without any qualifiers. Had they intended qualifications the certainly had ample opportunity to add them.

It does seem to me that the President’s power as Commander in Chief is to determine how and not whether a war should be conducted. Yes, if US forces abroad or US territory are attached they certainly have the right of immediate defense and the conduct of that defense is ultimately at the direction of the President. However to go beyond immediate defense into launching an attack on foreign territory because of the initial attack on the US requires Congress’ approval.

[GomiBoy]

@David Simmons

I have neither the training nor the specific background to counter Yoo’s analysis. However I do know that the analysis of complex subjects seldom, and more likely never, yields as clear-cut an answer as he gives. There are always exceptions. My concrete difficulty is that his analysis allows one individual to take an action with dire consequences for the nation without any checks or balances at all. And I think the provision of such checks and balances on the actions of government officials are an even more fundamental intent of the framers than Woo’s cites. For example, the framers gave the power to make war to the Congress without any qualifiers. Had they intended qualifications the certainly had ample opportunity to add them.

It does seem to me that the President’s power as Commander in Chief is to determine how and not whether a war should be conducted. Yes, if US forces abroad or US territory are attached they certainly have the right of immediate defense and the conduct of that defense is ultimately at the direction of the President. However to go beyond immediate defense into launching an attack on foreign territory because of the initial attack on the US requires Congress’ approval.

Actually, the War Powers Act gives the President the power to wage war for 60 days without any Congressional approval. Woo states that in time of undefined emergency, this power can be used to attack anyone anywhere at any time, including for pre-emptive defence.

My question, I guess, is this - is this wrong? Was this what the framers wanted?

[David_Simmons]

@GomiBoy

Actually, the War Powers Act gives the President the power to wage war for 60 days without any Congressional approval. Woo states that in time of undefined emergency, this power can be used to attack anyone anywhere at any time, including for pre-emptive defence.

My question, I guess, is this - is this wrong? Was this what the framers wanted?

I don’t know how to get at what the framers wanted excecpt by reading what they wrote. The didn’t say anything about giving the President the power to go to war for some short time in the absence of Congressional action. And I don’t quite see how the power to direct the operation as Commander in Chief once a war is declared can be extended to include declaring the war. That again is placing all power in one person because once war starts how can Congress possibly say - Oops, sorry, call the troops home. - ?

Again, if our military or territory is attacked the right of immediate defense is there and doesn’t need a war powers act to be used. It seems to me that the War Powers Act is another of those hasty and unwise reactions that occur now and then. Remember the Maine, put all the west coast Japanese in confinement, finally resulting in - OK, shoes off everybody.

[Bricker]

@GomiBoy

My question, I guess, is this - is this wrong? Was this what the framers wanted?

Is the intent of the framers relevant?

I thought we had a Living, Breathing, Walking, Talking, Animatronic Constitution, one that evolves so fast you can actually see the text change if you look closely.

[pantom]

Well, the parts relating to this haven’t been amended, and someone help me out here, but I don’t think this has come before the Supremes recently, has it?
You don’t need intent. Look at the rings they put around the President:

1 - He can’t declare war. Only Congress can.
2 - He can’t raise revenues. Only Congress can.
3 - Appropriations for an army must be reapproved at least once every two years, which according to A Hamilton was to force the Congress to vote on a standing army at least once in its term, and thereby be on record as approving said army. No such provision was put in for the Navy (which is probably why the Marines were always being sent in, now that I think of it).

He can’t declare war, he can’t raise money for an army on his own, and if he manages to get Congress to give him one, he has to get it reapproved at least once every two years.
I don’t think it gets any clearer than that. Seems to me their worst nightmare was a President waging war on his own. They would’ve gagged on the War Powers Act.

[David_Simmons]

@pantom

Well, the parts relating to this haven’t been amended, and someone help me out here, but I don’t think this has come before the Supremes recently, has it?
You don’t need intent. Look at the rings they put around the President:

1 - He can’t declare war. Only Congress can.
2 - He can’t raise revenues. Only Congress can.
3 - Appropriations for an army must be reapproved at least once every two years, which according to A Hamilton was to force the Congress to vote on a standing army at least once in its term, and thereby be on record as approving said army. No such provision was put in for the Navy (which is probably why the Marines were always being sent in, now that I think of it).

He can’t declare war, he can’t raise money for an army on his own, and if he manages to get Congress to give him one, he has to get it reapproved at least once every two years.
I don’t think it gets any clearer than that. Seems to me their worst nightmare was a President waging war on his own. They would’ve gagged on the War Powers Act.

In fact two years is the maximum. If Congress wants to it can appropriate money to be disbursed only for a six month period, or any other, and under the condition that the President come or send representatives to explain what was accomplished with the last six months allotment and what is expected to be done with the next.

Congress has badly mangled its oversight responsibility. It’s definitely one of the feasances, mis or mal or non. Maybe we should find a way to impeach them,