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The Fog of War Powers

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In the aftermath of President Trump’s strike on a Syrian airfield, commentators continue to debate the scope of presidential war powers under the Constitution.  Yet many of these analyses should probably come with a consumer warning label – “my opinion only, not necessarily the law.”  Well, just what is the “law” of presidential war powers?  My own warning label is that I will discuss this issue solely under US domestic law.

I place law in scare quotes because to a degree unusual in US constitutional law, arguments about war powers tend to feature the recommendations of legal experts as to what the law should be rather than reporting what the law actually is.  This is because the debate has a serious problem which is far too often ignored.  To know what the law is with respect to presidential war powers, you must first be able to find that law.  The particular difficulty here is determining what the law is in a constitutional arena not strongly influenced by decisions of the Supreme Court.  What’s more, this particular sort of subject matter is not typically taught in our nation’s law schools.

In thinking about this problem, let’s put on our analytical pants one leg at a time and consider war powers from the perspective of each branch of government.  Because the Court has had little to say, we will, by necessity, concentrate on the legislative and executive branches.  Turning to Congress first, in the absence of a congressional authorization to use force (which Trump obviously didn’t get), the most relevant law is the 1973 War Powers Resolution (WPR).  Some commentators treat the WPR as if it throws a fine net over all presidential military initiatives.  But consider that some Senate liberals voted against the WPR because they thought it gave too much power to the president.  This is because the WPR, at least in theory, forced presidents to cease military action only after the expiration of its famous sixty-day clock.  Executive branch lawyers soon noticed this leeway and argued that the WPR in effect blessed the legitimacy of short-term, short of war uses of force.  Whether or not that’s the right reading of the WPR, it has become part of the existing constitutional architecture. This means that if Trump’s strike was a one-off, it would not present a problem in the constitutional order created by Congress.

As you might expect, the constitutional order created by the executive branch during the Cold War and after is even more lenient.  In the system that we have inherited, presidential war power is based both on historical practice and on the reality that much authority to act, at least short of war, was indeed democratically delegated to presidents by Congress and a concerned public through the institutional creation of the national security state.  In my book Long Wars and the Constitution, I argue that the best way to understand this delegation is that presidents had the discretion to use military force to advance the foreign policy and protect the national security of the United States on a global basis.  It is worth noting that President Trump’s rationale for the Syria strike, expressed in his brief WPR report to Congress, tracks this understanding in general terms.  By the way, we should note also the absence of reference in any of the administration’s statements to the promotion of international legal norms.

Yet a certain analytical fog obscures this consistent executive branch position.  To understand why, we must add political parties to the mix.  Since Vietnam, Democrats have been considerably more skeptical about the use of military force than Republicans.  In the Clinton and Obama administrations, executive branch lawyers got in the habit of releasing ever-more complex legal opinions justifying the use of force, building expectations among commentators that they were the true basis of the executive branch legal order.  These opinions, which came to be minutely scrutinized by commentators during the Obama administration, arguably expressed a more chastened view of presidential war powers than was true in the Cold War.  But it is an open question whether these fairly narrow opinions based on conventional legal reasoning could ever reflect accurately the full range of policy interests and constitutional values that typically formed the basis of presidential military action in the new era that existed after 1945.  The international legal norms now increasingly appealed to by commentators to evaluate such opinions are ones that most Americans have never heard of.  Although this is a topic for another time, I will just suggest here that there is a considerable democratic deficit at the heart of arguments based on such norms.

Republicans were historically not as reluctant to use force and in fact tried to repeal the WPR after they won control of Congress in the mid-1990s.  But this pro-executive tendency on the part of congressional Republicans was obscured by their determination to oppose Clinton and Obama in foreign affairs almost no matter what they did.  Yet to war powers commentators, the resistance displayed by Republicans toward Clinton’s 1999 air war in Kosovo (which, it must be remembered, occurred just after Republicans failed to remove him from office) and Obama’s 2011 intervention in Libya were not lamentable instances of super-heated partisanship in foreign affairs, but “precedents” showing that Congress was not interested in acquiescing to military actions that exceeded the limits of the WPR.

I suggest that the fog of war powers is lifting now that we have a Republican president willing to use military force consistent with the traditional objectives of the Cold War constitutional order.  It is worth emphasizing that in this order, the use of military force is not necessarily seen as calling for special legal justification, but rather one tool among others to advance US interests abroad.  As far as I can tell, Republicans, particularly those in the foreign policy establishment who served in the executive branch, never accepted the skepticism toward the use of force that continues to pervade the Democratic party.  If the Trump administration continues to trend in a more traditional Republican direction, we may again hear arguments, as we did in the Reagan and Bush 41 administrations, that the WPR itself is unconstitutional.  This would indeed be a change from the Clinton-Obama years, but one amply foreshadowed in past Republican administrations.

What therefore is the role of constitutional analysis in these circumstances?  I believe experience is showing that a polarized political environment puts pressure on the sort of arguments long considered standard in separation of powers law.  Specifically, it undermines the usefulness of practice-based arguments.  As long as members of Congress, particularly Republicans, have diminished interest in preserving Congress’ institutional role under the Constitution, then this traditional sort of analysis goes awry.  This analysis attempts to categorize actions of Congress as meaningful principled objections or, at the opposite extreme, acquiescence to executive branch initiatives.  But in a continually polarized environment, evaluating Congress in this way is simply not persuasive.  Republican objections, for example, to Clinton’s Kosovo operation and Obama’s Libya intervention were driven more by political aversion to the opposite tribe, so to speak, than constitutional principles.  In this environment, we need to use higher standards for what counts as a congressional objection or acquiescence.  If Congress is able to take collective action on a binding resolution, that obviously counts.  Everything else is mostly political noise.

So the constitutional order established by Congress in the WPR and the order established by the executive branch (although both branches contributed) in the Cold War both support the legality of President Trump’s Syria strike as a matter of domestic law.  Now we might wish for things to be different.  Perhaps we respect the eighteenth-century constitutional order more than contemporary political parties do or we think policy disasters have happened as a result of the substantial delegation of power to the executive branch in the Cold War.  But if we do, we will have to influence Congress and the president to either change the WPR, change the executive branch’s view of its responsibilities, or both.

 

Image: Chip Somodevilla/Getty

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About the Author

is the W.R. Irby Chair and Rutledge C. Clement, Jr. Professor in Constitutional Law at Tulane Law School. He is the author of Long Wars and the Constitution (Harvard University Press 2013).