Yale Law Professor (and major constitutional scholar) Bruce Ackerman took to the New York Times op-ed page last week to describe as “a devastating setback for our constitutional order” President Obama’s assertion that — although he would welcome a congressional vote authorizing his new military strategy against ISIS — he does not need such a vote to proceed with the bombing.
I feel Prof. Ackerman’s pain. I wish that there was something that could reasonably be called “our constitutional order” on the issue of war powers. But I fear not. While Ackerman sees Obama’s latest plan for an undeclared war as a major blow, I believe the constitutional order regarding war powers has long since been effectively eviscerated.
The U.S. Constitution says relatively little on the subject, but it does rather famously (Article I, Section 8) assign to Congress “the power to…declare war.” It also empowers the president (Article II, Section 2) to act as “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.”
You might note, if you were feeling feisty, that the Constitution did not appoint the president as commander in chief of the Air Force, even though, in the current matter, the main work of degrading ISIS, at least in the early stages, will be conducted by air power.
Of course, the Framers of the Constitution had never heard of an Air Force, nor a bomber, and it would be silly to seek guidance from them on the use of air power. But it may be almost equally fruitless to seek their guidance on the general matter of a global superpower and its leader’s desire to degrade and ultimately destroy a non-state actor that, for various reasons, we cannot agree on the name of (ISIS or ISIL?).
Wisdom of the Framers
For the most part, the wisdom of the Framers, contained in the two scraps mentioned above, has been translated thus: War is a big deal. It would be dangerous to allow one man, even the president, to get the country into a war just on his say-so. So it should be up to Congress to decide on the fundamental question of when to go to war, which they would express by passing (or not) a declaration of war.
But you can’t run a war by committee, so once the war had begun, the chief executive, operating as commander in chief, would make the day-to-day decisions. The traditional understanding has also included the assumption that the president can use his commander-in-chief powers to deal with emergencies that arise until Congress can get around to debating a declaration of war.
If you are inclined to be quite literal, that understanding goes beyond anything made clear in the constitutional language. Saying that Congress has the power to declare war is not a clear statement that the president is not supposed to do anything without such a declaration. As for the idea that the president has powers to wage a short-term emergency war, there’s not a syllable in the Constitution that says anything like that. The omission of any such language is especially noteworthy because it did assign to the state – yes, to the states! – the power to engage in a war without prior congressional action (Article I, Section 10) if they are “actually invaded, or in such imminent Danger as will not admit of delay.”
Nonetheless, the basic, original plan seems wise, looked at from the perspective of 1787. And it worked fairly well (with plenty of exceptions) for much of U.S. history. Five times Congress declared war (War of 1812, Mexican-American War, Spanish-American War, and the two World Wars). Presidents did mess around on the edges, using military force many times without a declaration, but most of them were relatively minor, until you get past World War II.
The world changed
The Cold War, the emergence of full U.S. superpower status, and the nature of modern warfare made hash (in my view) of the original understanding. The Framers envisioned an America that would have a small standing military and most of its military power would consist of state militias that could be nationalized when needed.
They imagined a USA that would be at peace most of the time (now the United States is basically never really at peace), a world in which Congress could debate peace or war decisions during some long run-up to hostilities while enemy navies needed weeks or months to cross an ocean. They imagined a much less powerful presidency.
They imagined a world in which wars would be between nations and armies. One of the most amazing developments of recent years is that those kinds of wars — between nations and armies, fought across borders, seeking territory — have almost completely vanished from the earth. During the Cold War, at least we had the Soviet Union. The United States is now engaged in a perpetual war against non-state actors.
Obama, who is a lawyer and has taught constitutional law classes, is taking the fairly absurd legal position that his campaign to degrade ISIL is already sanctioned under the resolution Congress passed after the 9/11 attacks authorizing military action against Al Qaida and others who “planned, authorized, committed or aided” in the 9/11 attack.
Obama’s legal position is that this covers ISIS, which the administration declares is an Al Qaida “affiliate.” As Ackerman points out, ISIS broke off from Al Qaida and the two groups now regard each other as rivals and enemies.
As I mentioned above, Obama says he would welcome a congressional vote of support. Ackerman thinks he definitely needs such a vote and points out that President George W. Bush got advance authorization for the use of force against both Afghanistan and Iraq. That’s true, but Bush never said that he lacked the authority to begin those operations without such a vote. And his father, the first President Bush, took the same position heading into his war to reverse the Iraqi conquest of Kuwait.
Obama has the same position. He would welcome congressional approval, but he doesn’t need it. And, judging by the noises out of Washington, he may get such a resolution, which will perhaps help Prof. Ackerman believe that the constitutional order is still standing.