We recently posted about the U.S. presidential power to make war without formal Congressional declarations of war (as is the case in Libya). Reviewing the history of the twentieth century – with the notable and, admittedly, important exceptions of World Wars I and II – this turns out to be more of a rule than an exception.
Matthew Yglesias takes it back even further, to the nineteenth century, demonstrating that then, too, American presidents often engaged in wars or military activitites without Congressional declarations of war, with Congress merely providing the funds. Thus demonstrating again Scott Lemieux’ thesis that Congress always more or less obliges with this part of executive policy, but that it has the power to halt military operations if it wants to – like in the case of South Vietnam under Carter.
- Edit: On second thought, is this really so peculiar to the US? I doubt whether the Dutch politionele acties in Indonesia in the late 1940s, which despite the name were decidedly military actions, involved a parliamentary declaration of war. Although it must’ve had parliamentary approval. Or the Falkland wars, for that matter. Does anybody have any information?
Not a lot of people know about the so-called “Quasi-War” fought between the United States and France during the John Adams administration, but I think it’s an important episode to recall for the purposes of ongoing debates about the Obama administration’s protestations that the ongoing war in Libya somehow really isn’t a war.
The point isn’t that Obama is right—he’s wrong—but that this is how the game’s always been played. From the administration of the second president ever, we were fighting an undeclared war on presidential authority. And of course Adams’ congressional opponents complained about it. And when they took over the White House, they certainly changed the basic orientation of American foreign policy. But they didn’t really change the practice around this declaration of war business. Instead the new undeclared war was one against Barbary Pirates. Which isn’t to say that congress wasn’t involved in the fight against the pirates. The key point was that congress appropriated funds to send the obtain and dispatch the ships. And from thence onward, despite the fact that we sometimes did get formal declarations of war (World War One and World War Two) and sometimes had a special congressional vote (Gulf War One and Gulf War Two) and sometimes had wars purely on executive recognizance (Civil War, Korea) that congress has always played an important role in the process as the institution that runs the appropriations process.
Which is to say that congressional authorization for the Lincoln administration’s prosecution of a war against the CSA took the form of appropriations and other measures to create the Union Army. And in the case of something like Libya, congressional authorization takes the form of the fact that we just this week had a giant political fight about appropriations in which nobody in the opposition leadership made the slightest gesture in the direction of a “rider” that would prevent the president from prosecuting that war or limiting his discretion in initiating new wars. This is what happens almost every year—Congress appropriates funds for a military, and does little to tie the president’s hands in terms of how he uses it. When congress wants to tie the president’s hands—as it did in the seventies when it stopped the Ford administration from continuing involvement in the defense of South Vietnam—congress gets its way. But most of the time Congress doesn’t want to tie the president’s hands.
Ever since the start of the Libyan military intervention, critics in the US (from both the left and the right) have contended that in the American constitutional context it is ‘illegal’. That is, according to the Constitution only Congress has the power to declare war, and since President Obama has not gone to Congress to ask for such a declaration but rather ordered the deployment of military forces unilaterally, this war is to be considered domestically unconstitutional. Particularly on the left, this is seen as evidence of the continued growth of the ‘imperial presidency’ under Obama, and it comes particularly hard since Obama is a constitutional scholar and previously criticized Bush for unilaterally going to war in Iraq (there was a 2002 Congressional vote to authorize the use of military force in Iraq, but this was not a declaration of war).
There is a difference here with other countries. In the United Kingdom, for example, David Cameron asked the House of Commons for permission to deploy military forces (he got it near-unanimously), and in the Netherlands, an ‘article 100 letter’ was submitted to the Second Chamber by the cabinet. Here, parliaments got a vote on matters of war and peace, and that should always be the preferred manner (when time and necessity allow it).
Scott Lemieux at the American Prospect, however, points out that Obama is hardly the first president to go to war without an explicit Congressional declaration of war. In fact, Congress hasn’t formally declared war since World War II. Instead, it has always delegated the power to use military force to the president. This was the case in Korea, Vietnam, and Iraq (twice), although it sometimes happened ex ante and sometimes ex post (worryingly enough). The War Powers Resolution, enacted post-Vietnam, limits the president’s use of troops abroad without approval to 60 days, but this seems to be dead letter.
Lemieux argues, however, that the power to limit the president’s use of military force rests primarily with Congress itself, and that it should act if it wishes to do so. Also, we should really start to worry when the executive starts to act against the wishes of Congress (which Bush did with its illegal wiretapping program, and Obama seems to continue). True that may be; but I’m still happy to live in a country in which the executive sees it as a constitutional obligation to go to parliament when war is declared. Moreover, Hillary Clinton’s remarks that the administration would continue bombing even if Congress would vote against it are pretty worrisome (read Glenn Greenwald on this). This administration, like the one before it, seems to believe that there is nothing Congress can do to limit its powers (even though this time, there is a humanitarian rationale and a UN resolution).
Nevertheless, Lemieux’s an interesting piece if you’re interested in history and American constitutional law.
The actual text of the Constitution gives substantial authority over war powers to Congress. Legal scholars such as Yale’s Bruce Ackerman and the University of Colorado’s Paul Campos have each made a credible case that Obama’s unilateral military action subverts or directly violates the Constitution. But from the standpoint of established practice, President Obama’s intervention in Libya is hardly an anomaly. For many decades, presidents have used the large military at their disposal to initiate conflict, often without congressional authorization. The explicit power to declare war has not been invoked by Congress since World War II.
The modern rise of unilateral presidential power is the subject a recent provocative book by legal scholars Eric Posner and Adrian Vermuele, The Executive Unbound. In Posner and Vermuele’s view, James Madison’s constraints on executive power — the “checks and balances” you’re always hearing so much about — are essentially no longer operative; by and large, it’s the president, not a majority of both houses of Congress, that decides to go to war.
Whether or not this is what the framers intended, this is the reality. So the question we need to ask now is how we got so far from the essential structure of the Constitution.
Surprisingly, it’s not that the president has systematically ignored or overridden Congress. In fact, the presidency has become the dominant war-making power precisely because this is how a majority of legislators want it. The president initiated major wars in Korea, Vietnam, and Iraq (twice), and in all of these cases — sometimes before the fact, sometimes after — Congress has passed the buck, delegating to the president the power to authorize force rather than declaring war itself. Senators and congressmen and women are similarly happy to pass on the blame when things go bad. Hillary Clinton’s assertion that her vote for the 2002 authorization for President George W. Bush to use force in Iraq was not an authorization for the preemptive war Bush actually fought is an instructive illustration of how Congress tries to have it both ways.
Even courts have found that Congress has abdicated its power to the executive. In his famous concurrence in Youngstown Sheet and Tube v. Sawyer, a case that involved President Harry Truman’s seizure of steel mills during the Korean War, Justice Robert Jackson noted that the Court “may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.” Statutes passed by Congress matter only if Congress asserts its power in showdowns with the president. Generally, it hasn’t.
As Posner and Vermuele point out, Congress has occasionally reacted after the fact to presidential abuses of power. The post-Vietnam War Powers Resolution, for example, only authorizes the president to send troops abroad for up to 60 days without congressional approval. But these legislative exercises have been toothless, if not dead letters. Without any enforcement mechanism, the War Powers Resolution and other congressional acts are essentially symbolic. More recently, the reaction to the airstrikes against Libya is quite typical: Individual legislators may grumble, but there’s no legislative action.
Read more here (and read Glenn Greenwald for a counterpoint).