Friday, June 01, 2012
Friday Myrmidons Blogging
In light of the 200th anniversary of our first declaration of war and President Obama's ongoing undeclared drone war, I've been thinking about constitutional war powers. What follows is a loose narrative that may or may not be coherent.
The Committee of Detail issued its report to Convention on August 6th, 1787, presenting an initial draft of the Constitution based on the Virginia Plan with a variety of modifications (including addition of the Necessary and Proper Clause). This is the original form of enumerated war powers [emph mine]:
[Article VII, Section 1]
To make rules concerning captures on land and water;
To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offenses against the law of nations;
To subdue a rebellion in any State, on the application of its legislature;
To make war;
To raise armies;
To build and equip fleets;
To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;
[Article X, Section 2]
[The President] shall be commander in chief of the Army and Navy of the United States, and of the Militia of the several States.
Delegates proceeded to tackle each clause in order, and began debating "to make war" 9 days later [emph mine]:
Mr. PINKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations...
Mr. BUTLER. The objections agst. the Legislature lie in great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.
Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.
Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.
Mr. MASON was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."
On the motion to insert declare-in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. PINKNEY'S motion to strike out whole clause, disagd. to without call of States.
Mr. BUTLER moved to give the Legislature power of peace, as they were to have that of war.
Mr. GERRY 2ds. him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.
On the motion for adding "and peace" after "war" N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md. no. Va. no. N. C. no S. C. no. Geo. no.
Interesting debate, particularly about the power to make peace. Was Pierce Butler the Dennis Kucinich of his epoch? Anyway, 10 days after Congress' war powers were first debated, the Convention hardly touched the President's:
Mr. SHERMAN moved to amend the clause giving the Executive the command of the Militia, so as to read "and of the Militia of the several States, when called into the actual service of the U. S." and on the Question
N. H. ay. Mas. abst. Ct. ay. N. J. abst. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. no. Geo. ay.
That's it. There was apparently no meaningful discussion (beyond maybe sidebar conversations that Madison didn't capture), just a tweak to the command of state militias when they're called up. This does, however, demonstrate an explicit "two key" process to unleashing force: Congress has the power of "calling forth the Militia", and only then the President had something to command. Does that also apply to war with standing forces?
Regardless, delegates returned to Congressional power on September 5th, adding the power to grant letters of marque, etc. So they gave much more consideration to the Legislature's role in military matters--declaring war, raising and funding armies and navies, organizing militias--than to the Commander-in-Chief's.
This bifurcation of responsibility was seen in (nonviolent) action just a few years after the Constitution was ratified, when President Washington proclaimed our neutrality in the conflict between Britain and France. Treasury Secretary Alexander Hamilton wrote at the time (as Pacificus):
[T]he right of the Legislature to declare war includes the right of judging whether the Nation be under obligations to make War or not--it will not follow that the Executive is in any case excluded from a similar right of Judgment, in the execution of its own functions.
If the Legislature have a right to make war on the one hand--it is on the other the duty of the Executive to preserve Peace till war is declared...
Secretary of State Thomas Jefferson resigned over Washington's official proclamation of neutrality (he preferred to simply remain neutral in fact, without declaration). As President in 1801, though, he and his Cabinet ran into similar issues with how to exercise concurrent powers regarding the Barbary Pirates (we'll skip Adams' Quasi War with France for now) [emph mine]:
May 15, 1801. Shall the squadron now at Norfolk be ordered to cruise in the Mediterranean. What shall be the object of the cruise.
Lincoln [AG]. Our men of war may repel an attack on individual vessels, but after the repulse, may not proceed to destroy the enemy's vessels generally.
Gallatin [Treasury]. To declare war and to make war is synonymous. The Executive can not put us in a state of war, but if we be put into that state either by the decree of Congress or of the other nation, the command and direction of the public force then belongs to the Executive.
Smith [Navy]. If a nation commences war, the Executive is bound to apply the public force to defend the country.
Dearborne [War]. The expedition should go forward openly to protect our commerce against the threatened hostilities of Tripoli.
Madison [State]. That the cruise ought to be undertaken, and the object openly declared to every nation. All concur in the expediency of cruise.
Whether the Captains may be authorized, if war exists, to search for and destroy the enemy's vessels wher ever they can find them? All except Mr. L. agree they should ; M. G. and S. think they may pursue into the harbors, but M. that they may not enter but in pursuit.
5 days later, under authority of Congress, Acting Secretary of the Navy Robert Smith sent an order to the squadron's commander:
SIR! The United States being at peace with all the world, Congress passed a Law, during their last session, providing for a Naval Peace Establishment, by which the President is authorized to keep in constant service, a proportion of the Navy of the United States.
[S]hould you find on your arrival at Gibraltar that all the Barbary Powers, have declared War against the United States, you will then distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce & chastise their insolence - by sinking, burning or destroying their ships & Vessels wherever you shall find them.
That December, Jefferson noted in his First Annual Message:
Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race, and not to its destruction.
Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.
The President's age-old nemesis, Alexander Hamilton, took issue with this stance (this time as Lucius Crassus):
The message of the President, by whatever motives it may have been dictated, is a performance which ought to alarm all who are anxious for the safety of our government, for the respectability and welfare of our nation. It makes, or aims at making, a most prodigal sacrifice of constitutional energy, of sound principle, and of public interest, to the popularity of one man.
The first thing in it, which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews.
[W]hen a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary. This inference is clear in principle, and has the sanction of established practice. It is clear in principle, because it is self-evident, that a declaration by one nation against another, produces at once a complete state of war between both, and that no declaration on the other side can at all vary their relative situation; and in practice, it is well known that nothing is more common than when war is declared by one party, to prosecute mutual hostilities without a declaration by the other.
I think LC's a little uncharitable in his reading of Jefferson's message, but we do see how even the founding generation, even while agreeing on the general principles of separate war-making powers, had different opinions on just where the line was between them.
A Supreme Court ruling delivered during Jefferson's tenure, regarding a case dating back to the Quasi War, noted:
It is by no means clear that the President of the United States, whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States to seize and send into port for adjudication American vessels which were forfeited by being engaged in this illicit commerce.
"But..." The opinion goes on to observe that Congress did in fact lay down some restrictions on seizure of vessels that the C-in-C had to faithfully execute, so any order to officers contradicting the Legislature's construction of its war powers would be illegal. Oddly enough, the Court held the officer liable for carrying out illegal orders--the "I was just following orders" defense didn't wash and he had to pay damages for his actions. So yeah, the Executive has a great deal of latitude, particularly when hostilities are launched against the United States, but when Congress lays down explicit rules about conducting the conflict, he has much less.
And even recogizing the significant power held by the C-in-C, there are inherent dangers that the Framers tried to mitigate by distributing the ability to wage war between branches. As Congressman Abraham Lincoln wrote just after the Mexican-American War:
The provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.
Man, Hamilton would take issue with that, too (he really loved him a strong President)! And Lincoln himself would trip over that boundary line as he moved from the Legislative branch to the Executive when he initiated a blockade against the Confederacy, which the Supreme Court found constitutional (he also suspended habeas, but we can ignore that in this context) [emph mine]:
By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral."
This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
The opinion went on to note that Congress had--while not claiming any requirement to do so--sanctioned Lincoln's actions after the fact. To me this shows that more than independence, there is interdependence between the branches' powers, and when they work in concert their actions carry more legitimacy even if it's not always necessary.
Lacking a definitive answer from the Judiciary--which for the most part has applied the political question doctrine to war powers--it's been up to the Leg and Exec to assert their respective authority and find a balance between giving the C-in-C the flexibility to respond to quickly changing situations and the need to keep reins tight enough to prevent despotism. A big problem is the ambiguous text of our Constitution, which doesn't explicitly lay out how a conflict should progress and is rather vague on presidential powers, which lead to Justice Jackson to write in the Steel Seizure Case:
That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But, as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic.
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.
Heck, there's not even a spelled-out way to declare war. So you've got Madison's war vs Bush's, both with Congressional imprimatur despite the vast differences in language (and length). You've also got Truman's war, which had no Congressional declaration or authorization.
And you've got Representatives trying to put some teeth into the War Powers Resolution, Senators named Obama trying to force an end to the Iraq War, and Presidents named Obama unsurprisingly ditching Congress to wage war in Libya (and now Pakistan).
I'm not sure there really is a way to stop presidents from swinging their dicks around in this (declining) imperial age, at least from a constitutional perspective. I suspect even President Kucinich or President Paul would feel compelled to let loose myrmidons of the United States at some point. Until we as a society demand more nonviolent solutions to domestic and foreign problems, it will always be easy to make war, and that will require more than just voting "the right way."
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