The Living Constitution And The War Power

By Big Tent Democrat, Section Constitution
Posted on Tue Mar 22, 2011 at 06:51:51 PM EST
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Over the years, I have written often about The Living Constitution. See, e.g. On Constitutional Interpretation: Originalism v. A Living Constitution; Scalia's Nonsense on Originalism,Dred Scott,Originalism and A Living Constitution, Constitutional Interpretation: Originalism v. A Living Constitution, Uncertainty In Life:Justice Souter's Harvard Commencement Address. I spilled tens of thousands of words on the subject, but Justice Souter's commencement address at Harvard last year wonderfully described the philosophy that I believe underpins the Living Constitution idea:

[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

[. . .] If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

Brilliant words from one of the finest of our modern Justices (now about that Twombly decision. . . .) It is important to realize that this concept does not always redound to consequences that we may feel are optimal. One of those for me is the modern understanding of the war power under the Constitution. The words are simple enough. Article I, Section 8 of the Constitution provides:

The Congress shall have power [. . .] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water [. . .]

The power to authorize a military conflict lies exclusively with the Congress, according to the text. The President does not have such power. The President's power, as stated in Article II, Section 2 of the Constitution:

The President shall be commander in chief of the Army and Navy of the United States.

I suppose it is possible to argue that being the Commander in Chief of the Armed Forces means being able to order them to engage in military action, but it seems to me an implausible reading, given the fact the the Congress has the exclusive power to declare war.

This division of power was described by Alexander Hamilton in Federalist 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

For more on this division, see my 2007 post, The War Power: What The President Can Do; What The Congress Can Do.

All pretty words. But it does not work that way anymore, if it ever did. As Scott Lemieux states, "[u]nder current practices, the AUMF George W. Bush obtained prior to the Iraq disaster was constitutionally sufficient, and for short-term smaller-scale conflict congressional approval probably isn’t required." But current practice is not consistent with the text, purpose or spirit of the Constitution. Obviously, President Obama, in not seeking Congressional authorization for the Libya military intervention, is not doing anything that has not been done many time before, but that does not make it right, wise or good policy. Here, President Obama should have followed his now much cited statement:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

The Living Constitution with regard to the War Power has been adapted in a way that I believe is deleterious to the Republic. But this need not be the end of the story. Mistakes can be corrected. The President can help in this project by seeking Congressional authorization of the Libya intervention. I hope he does.

One final note: some have cited the War Powers Act as providing the legal support needed by the President to take the actions he has taken. I disagree. I believe the War Powers Act requires a finding of a serious threat to the Nation, just as the President stated in 2007. But even if one believes the War Powers Act granted the Presidency such authority, legislation in conflict with the Constitution can not stand. The interpretation of the War Powers Act forwarded by those arguing it empowers the President to act militarily without Congressional approval posits an unconstitutional delegation of legislative power to the Executive Branch.

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The Living Constitution And The War Power | 15 comments (15 topical)

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Hoping that the Chief Executive (5.00 / 2) (#4)
by Maryb2004 on Tue Mar 22, 2011 at 07:54:58 PM EST

does the right thing is a poor way to run a Republic. Congress should do the right thing - cut off funds for Libya unless he gets authorization. Or impeach him. But hoping they will do the right thing is also a poor way to run a Republic.

The fact is that the public doesn't seem to give a sh*t about the unconstitutional shift in power. So maybe that means that the Constitution has changed - the people have ratified this de facto change even if no amendment has ever been adopted.

I find the whole thing depressing.

Can we hope for both? (5.00 / 0) (#6)
by Big Tent Democrat on Tue Mar 22, 2011 at 08:03:16 PM EST

Congress and the President doing the right thing?


: That's just crazy talk (5.00 / 1) (#7)
by jbindc on Tue Mar 22, 2011 at 08:06:13 PM EST

Stop that!

: Sure. (none / 0) (#8)
by Maryb2004 on Tue Mar 22, 2011 at 08:20:18 PM EST

After all, there's not much else for us to do.
Is there?

: sure we can: (none / 0) (#10)
by cpinva on Tue Mar 22, 2011 at 09:38:16 PM EST

Can we hope for both? Congress and the President doing the right thing?
of course, we can hope for a lot things. getting them is another issue entirely.

Going back to 44 BC... (none / 0) (#12)
by rhbrandon on Wed Mar 23, 2011 at 07:11:56 AM EST

"Hoping that Caesar would do the right thing" was a poor way to run the Roman Republic. When it was all over, it really wasn't a republic anymore.


According to an NPR speaker (none / 0) (#16)
by oculus on Wed Mar 23, 2011 at 11:27:47 AM EST

yesterday, the $$ for Libya are coming from current Dept. of Defense funds, but that won't be sufficient if, in fact, we are in Libya more than 4 days, or whatever.


He's even lost Richard Cohen (5.00 / 1) (#13)
by jbindc on Wed Mar 23, 2011 at 08:59:45 AM EST

Cohen says Obama has a "muddled message" on foreign policy and calls it the Berle Doctrine (as in Miltion Berle):

In the Oval Office, President Obama keeps busts of his heroes -- Abraham Lincoln and Martin Luther King Jr. He should add one of Milton Berle, the so-called Mr. Television of the 1950s. Berle used to signal his studio audience to both continue and stop applauding by holding up one hand to wave them on and another to quiet them. This is the president's Libya policy in a nutshell.
The Berle Doctrine, the closest thing this administration has to a coherent foreign policy, has almost certainly cost lives. It entailed a heroic amount of dithering as the Obama administration first went to war with itself -- to intervene or not to intervene -- with the so-called boys (Bob Gates, Tom Donilon) arguing with the girls (Hillary Clinton, Susan Rice, Samantha Power), a summer-camp metaphor unbecoming the seriousness of the situation. Clinton ultimately got her no-fly zone but claimed no credit. "We did not lead this," she said in Paris.

SNIP

The change that Obama promised has settled on us all like an irritating drizzle. His ideas were untested by either age or experience. It is one thing to decry American unilateralism and quite another to await international action when time is of the essence. It is not necessary for America always to lead, but it is sometimes necessary for it to do so -- and always necessary for the president to know when that moment has arrived. Obama seems not to know. He often solves problems by ignoring them.

Ouch.

Of course, Cohen fails to mention that he had a hand in helping sell the "experience doesn't matter" meme, but no one's perfect.

congress has become unable to (5.00 / 1) (#15)
by Capt Howdy on Wed Mar 23, 2011 at 09:35:56 AM EST

tie their shoes. I can understand why waiting for them was not the first choice.

and I think what the did was the right thing to do.
no argument about constitutionality.

Overall I agree (none / 0) (#1)
by seabe on Tue Mar 22, 2011 at 07:06:42 PM EST

But I've also seen this cited:

"The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein"

http://www.law.cornell.edu/uscode/22/usc_sec_22_00000287---d000-.html

: Not sure how that changes my point (none / 0) (#2)
by Big Tent Democrat on Tue Mar 22, 2011 at 07:17:29 PM EST

From your cite "Provided, That, except as authorized in section 287d-1 of this title, nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements. "
Beyond that, I think this would not be constitutional if interpreted as you suggest others have argued. Delegation of legislative power.

So, leaving aside the legality of it, (none / 0) (#3)
by shoephone on Tue Mar 22, 2011 at 07:20:31 PM EST

Did the president not seek Congressional approval first because:

The time factor for stopping Ghaddafi from committing a "massacre" was too imminent, or because,
He doubted he would be able to get congressional approval at all

I'm certain that Clinton, Rice and Power were basing their position on reason #1. Not sure about Obama's reasoning.

: item #1 would be irrelevant, (5.00 / 1) (#9)
by cpinva on Tue Mar 22, 2011 at 09:36:28 PM EST

because it had nothing whatever to do with the US, period.
the erosion of the war powers act is a danger the framers attempted to avoid, by limiting the executive's ability to unilaterally declare war.

: maybe because (none / 0) (#14)
by Capt Howdy on Wed Mar 23, 2011 at 09:33:09 AM EST

as George Will points out recently congress has not exercised that right since the 40s.

Except (none / 0) (#5)
by jbindc on Tue Mar 22, 2011 at 08:01:26 PM EST

The White House claims they told members of the Congressional leadership on Friday about the action and also sent a letter, thus complying with the notification portion of the War Powers Act.

I don't think that passes muster, but that's their story and they're sticking to it.