June 21, 2011

War Powers and Libya

Congress is entitled to restrain the president’s military adventures abroad.

When it comes to U.S. involvement in Libya, the Obama administration has made a mess in dealing with its obligations under the War Powers Resolution (WPR), a law designed to check the president’s ability to commit America to war without the consent of Congress. Before I read the unsigned statement that President Barack Obama sent to Congress under the bland heading, "United States Activities in Libya," I was prepared to give the president and his legal team the benefit of the doubt. But his embarrassingly thin legal analysis calls into question the constitutional competence of those members of his divided legal team who concluded that the president is entitled to go it alone in Libya without further Congressional authorization.

Epstein
Illustration by Barbara Kelley

Here is an excerpt of the statement:

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution’s 60 day termination provision [that provision states that the president can engage in war for 60 days without Congressional authorization]. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of the United Nations Security Council Resolution that authorized the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

There are two ways to deal with this effort to justify the president’s actions in Libya. The first asks whether the actions comply with the WPR. The second asks whether that resolution (which became a law after Vietnam over the veto of President Richard Nixon) is consistent with the requirements of the Constitution. Let’s take them in order.

The president needs to make peace with Congress, not with foreign nations.

On its own terms, the president’s statement is a constitutional joke. At no time does it give any account of what the critical term "hostilities" means, except to say that whatever its meaning, it constitutes a high threshold that is not met in Libya. The trusty thesaurus offers the word "fighting" as a synonym for "hostilities," which is just what we are doing in Libya today. There is no evidence in the WPR text that the term "hostilities" does not have its ordinary English meaning. The term is first used in connection with the statement that the WPR "will apply to the introduction of the United States Armed Forces into hostilities." The word "introduction" suggests that the WPR kicks in when hostilities begin such that Congress preserves its power to have a say before these hostilities escalate into something bigger. The particular context reinforces the ordinary meaning and thus undercuts the president’s claim that small hostilities—which these aren’t—fly below the radar. The president’s statement gets everything exactly backwards.

The president does no better when he tries to bolster his position by noting that the United States is playing second fiddle to the Europeans. That’s because the want of American leadership has no possible relevance to whether the president injected U.S. forces into hostilities. The president needs to make peace with Congress, not with foreign nations. The failure to get Congress to sign off on the war is not cured by running off to NATO.

Yet the president offers not a shred of evidence to support his twisted constitutional logic. Hats off to those in his administration—Eric Holder, Caroline Krass, and Jeh Johnson—who stood up to the president. And shame on those, like Harold Koh, who should know better.

The more serious defense of the president’s position is to deny the constitutionality of the WPR in the first place. Thus the Wall Street Journal rightly ridicules the president for the "worst defense of Presidential power ever offered." But the Journal never bothers to justify its own view that the WPR is unconstitutional. That issue has a very complex history to say the least.

A learned string of emails from Charlie Savage of the New York Times has called my attention to a related point. The presidential attacks on the constitutionality of the War Powers Act are directed toward section 2 of the Act, which limits the power of the president to initiate hostilities against foreign nations. Oddly enough, it does not seem to cover the need under section 5 of the WPR for the president to obtain authorization from Congress to garner the support of the president after 60 days to continue with the hostilities—which was the precise point of the presidential statement.

In the grand scheme of things, the key institutional point is that every president since Nixon has insisted on challenging section 2 of the WPR. But so what? No sitting president, of either party, wants its wings clipped by Congress. Their conclusion carries no more weight than Congress’s say-so that section 2 of WPR is constitutional.

To move beyond both sets of self-serving statements, it helps to look at the constitutional arguments arrayed on both sides of the Section 2 debate. Start with the constitutional text that assigns to Congress the power "to declare War, grant Letters of Marque and Reprisal, and make rules concerning captures on Land and Water." On Obama’s side, the president is the commander-in-chief of the army and navy, and the militia when called into the active service of the United States.

Hats off to those in the Obama administration—Eric Holder, Caroline Krass, and Jeh Johnson—who stood up to the president.

The initial question is whether the power to declare war counts as legislation subject to presidential veto. The power to declare a particular war is not to pass a general law, but rather to change the relationship between the United States and one or more foreign nations. On this view, there was nothing for President Nixon to veto back in 1973. This view, moreover, gains strength because the power to declare war is bracketed with the Congressional power to grant letters of marque and reprisal—commissions from the United States to private individuals to capture property owned by a foreign state or its citizens. These individual letters don’t remotely resemble legislation. So once again, it looks as though the president has no role to play in issuing them to private parties, for they fall outside the control of the president in his role as commander-in-chief.

So if Congress gets to declare war, just how does it do it? An explicit declaration meets the test, but nothing in the Constitution precludes "implied declarations" of war, which could be useful to initiate action without triggering any international treaty obligations tied to a formal declaration of war. The most obvious form of an implied declaration is the appropriation of funds for particular military efforts, as in Vietnam. That action makes no sense for wars Congress never authorized.

Yet must Congress act only on a case-by-case basis? Or can it issue a standing resolution that allows the president to act without a prior explicit authorization of the event? It is this last approach that the WPR implements. Clearly, in some cases, the president has the power to respond to a foreign attack on this nation without waiting for Congress to declare war. But can the president issue a preemptive strike against a possible enemy without Congressional authorization? The United Nations Charter takes a dim view of that practice, but so what? If the ancient law of assault and battery is any guide, no individual has to wait until he has been hit in the face to use force. So too with nations. Exactly how all this plays out depends on context, but the strength of the WPR lies in its effort to add some meat to the bare bones of the constitutional scheme. Thus the WPR looks about right when it states that the President of the United States cannot act unilaterally unless one of three conditions holds: "1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States."

The WPR then sets out a program that requires the president, if he has ventured off on his own, to report to Congress within 60 days (unless he needs an extra 30 days for an orderly withdrawal of troops). Perhaps one can quibble with the details of the WPR, but the only way in which it is unconstitutional is if the president as commander-in-chief may wage a war that Congress has never declared. That bizarre position inflates the constitutional powers of the president to unrecognizable proportions. What can we make of any system of checks and balances if the power not to declare war somehow fails to operate as a limitation on the president’s powers?

The president’s statement on War Powers and Libya is a constitutional joke.

Just that position is taken by my good friend John Yoo, writing in the Wall Street Journal, who attacks the Republicans for "playing politics" with the WPR. Simply cut off funds for the Libyan operation, Yoo claims. But surely that misses the point. The ability to cut appropriations will not stop a president who can use preexisting funds to carry out foreign hostilities covered by the WPR. Nor does the appropriations power stop the president from initiating major aggressive action with a single blow against some other nation. These difficulties are not cured, moreover, by letting Congress retaliate by facing down the president on the debt limit or some other action, as Yoo suggests. Why should Congress have to contaminate a second area of endeavor because it cannot get its voice heard on the first?

The current standoff then is quite unsatisfactory, and the grim news is that the tools for its intelligent resolution are weak at best. Yoo and countless others are right to insist that the courts have no part to play in this struggle between the two branches of government. Impeachment as a political remedy is over the top for these critical situations, even though some form of Congressional censure would seem appropriate notwithstanding its utter lack of defined consequences.

The blunt truth of the matter is that the Constitution provides at most a rudimentary road map for those willing to follow it, but contains few, if any, sanctions for those determined to deviate from it. The WPR resolution is best understood as a Congressional concession to the practical dominance of the president in the area of war. In the present political climate, therefore, it’s especially important to keep pressure on those who seek to displace the WPR. It is thus wrong for the president to toy with the language of the WPR, or for constitutional skeptics like John Yoo to wish away portions of the constitutional structure by assuming the president can operate largely free of Congressional restraint on matters of war. Both positions are wrong. These constitutional niceties change the structure of political discourse. Congress, and popular opinion should keep the heat on.


Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).


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