A brilliant piece in The New Yorker by Jeffrey Toobin about Supreme Court Justice Clarence Thomas. Thomas, appointed by George H. Bush, is arguably the most conservative Justice on the Court since the 1930s. He adheres to a very strict originalist and textualist reading of the Constitution, meaning that he believes it should be applied to the twenty-first century the way the Founders intended it for society in the late eighteenth century (whoever came up with this comically absurd idea should receive a prize). In addition to that, unlike the other textualist Justices Antonin Scalia and Samuel Alito, Thomas has no qualm about ignoring precendent in court rulings: when he thinks a previous decision is wrong in his interpretation of the Constitution, he will overturn it. In Thomas’ case, this also means historically exploring how the inhabitants of the thirteen American colonies two-and-a-half century ago meant this or that piece of law.
Adhering to a very strict originalist interpretation of the Constitution means that you believe that only a very small, limited government is constitutionally allowed (just like it was intended back then). If if were up to justices like Thomas, the US government would have no business regulating anything in the American economy or society (although they have, of course, no qualms about executive branch overreach when it comes to military affairs or torture). This leads to predictable conservative positions on such issues as gun rights and federalism, but also – and here it comes – on healthcare. The Obama administration has relied on a ‘broad’ interpretation of the Commerce Clause, which by New Deal-era judicial interpretation has allowed the federal government to intervene in the (trans-state) economy, to mandate individuals to buy health insurance. But it is very much the question whether the current conservative Court, including Justice Thomas, will uphold this interpretation of the Commerce Clause. It is very much possible that Obama’s healthcare reform law will sometime soon be judged unconstitutional by the Supreme Court.
Why is this piece on Clarence Thomas so relevant in this context? Well, because according to Toobin, Justice Thomas’ once extreme positions on various issues he has held since his 1991 confirmation have in the past twenty years become more mainstream. Take, for example, the gun rights issue. Among conservatives today, it is commonplace to argue that the lines in the Constitution about ‘the right to keep and bear arms’ apply to individuals, allowing personal gun rights. But just two decades ago (I didn’t know this), this was considered a radical position in a legal profession that held that the lines apply to state militias only, thus warranting more strict regulation on guns. It was Thomas who came up with the former interpretation, striking down Bill Clinton’s 1999 Brady Bill, and ever since, gun rights in the US have expanded. The same thing has happened on other issues: Thomas’ positions, at first considered radical, move the borders of the acceptable and allow judicial discourse to shift rightwards.
In the era that has seen the rise of the Tea Party out of protests against healthcare reform, the same thing could happen to Obama’s laws. Or, the piece warns, even more broadly to the entire 1930s New Deal-era constellation of laws and regulation that have awarded the federal government a role in protecting the people against the worst excesses of capitalism. Clarence Thomas and his wife are frequent speakers and ardent supporters of the Tea Party and other manifestations of extreme rightwing politics. These people want to take the economy back to the 1920s law of the jungle. In the words of Walter Russell Mead at the American Interest, their goal is to bring the Blue Empire down…
So read this must-read profile of Clarence Thomas to see why he has already been compared to Lord of the Rings’ Frodo – an overlooked actor slowly but steadily moving towards his goal, not taken seriously by his opponents until it is too late.
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.
The Wall Street Journal and The Washington Post both report that the Obama administration plans to ‘dramatically escalate’ the CIA-led drone bombing campaign in Yemen, without (just like in Libya) any form of congressional approval.
This leads Kevin Drum of Mother Jones to ask how it is that the massive operation of unmanned drones apparently allows a government to wage an undeclared and therefore illegal war in another country, and what it means for the future of robotic warfare.
I know I’m not the first to ask this, but exactly what theory of military action allows President Obama to do this without congressional approval? In Afghanistan and Nicaragua in the 80s, you could argue that we were merely funding allies, not fighting a war ourselves. In Grenada and Panama, you could argue that we were merely pursuing small-scale police actions. In Pakistan, you can argue that our operations are all part of the Afghanistan war. You might not like any of those arguments, but at least they’re something.
But what’s the theory here? This is obviously not a short-term operation (it began well over a year ago). It’s obviously not part of the Afghanistan war. You’d have to twist yourself into a pretzel to pretend that the post-9/11 AUMF applies here. (The fact that Congress is considering an extension of the 2001 AUMF in order to cover operations like this is a tacit admission that the old AUMF doesn’t apply.) Nor does the fact that Yemen’s president has given it his blessing really mean anything from a war powers standpoint.
In practice, the theory seems to be that unmanned drones are somehow not as real as actual manned fighter jets. After all, does anyone seriously believe that Obama could send sortie after sortie of F-22s over Yemen and not have anyone complain about it? I doubt it. But as long as they’re just drones, no problem. Given the inevitable growth of robotic warfare in both the near and long term, this doesn’t bode well for the future.
Glenn Greenwald responds:
Both The Wall Street Journal and The Washington Post report today that the Obama administration is planning to exploit the disorder from the civil war in Yemen by dramatically escalating a CIA-led drone bombing campaign. In one sense, this is nothing new. Contrary to false denials, the U.S., under the 2009 Nobel Peace Prize winner, has been bombing Yemen for the last two years, including one attack using cluster bombs that killed dozens of civilians. But what’s new is that this will be a CIA drone attack program that is a massive escalation over prior bombing campaigns.
The one point of Kevin’s with which I disagree is his last one: I absolutely believe that if he sent F-22s into Yemen to bomb, very few people would object. Not only has virtually nobody objected to prior bombing campaigns in that country, but he’s currently waging a war in Libya without a whiff of Congressional approval, and nobody seems to mind. That’s because — for all the Democratic mockery of Richard Nixon’s “If-the-President-does-it-it’s-not-illegal“ decree, bolstered by the Cheney/Yoo/Addington theory of presidential omnipotence — that’s exactly how this President is viewed, by his followers and himself. If he wants to fight a war somewhere, that — his will, his decree — is all that is needed. Such matters, as the once-discredited-but-now-vindicated John Yoo put it, “are for the President alone to decide.”
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).