The Warmaking Power, The Constitution And The War Powers Act

Balkinization provides a copy of the 1980 Office of Legal Counsel Opinion (PDF) on the constitutionality of the War Powers Act. Jack Balkin notes this passage:

We agree that the term "hostilities" should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad.[. . . W]e also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by "guerrilla" operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to "command, coordinate, participate in the movement of, or accompany" the forces of the host government in operations against such guerrilla operations. 16 50 U.S.C. 1547(c).

[. . .] The structure and thrust of those provisions is the "introduction" of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read "introduction" to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.

(Emphasis supplied.) Obviously, it was the Obama Administration that introduced US military power into Libya. This was no act of self defense. It is beyond debate, in my view, that the 1980 OLC opinion conflicts with the Obama Administration argument that the United States is not engaged in "hostilities" covered by the WPA. More . . .

Also, at Balkinization, Sandy Levinson writes a post titled Life In A Constitutional Dictatorship:

It is now crystal clear that Obama does not represent a true repudiation of the Bush Administration, but, rather, a (somewhat) kindler and gentler version of its claims vis-a-vis presidential power and what is defined by the White House as "national security." James Fallows, in an excellent comment on the remarkable assertion that the War Powers Act is irrelevant because Libya doesn't constitute the kind of "hostilities" adverted to, writes that "[t]he central concern, and the major threat to our politics, is that once again we are going to war essentially on one person's say-so." He is correct, even if one grants full credit for Obama's having sought out acquiescent lawyers who turn out, however, not to be employed by the Office of Legal Counsel or the Department of Defense.

Levinson's title and focus on the issue of "one person's say-so" with regard to taking the country into military hostilities reminds me of my post about the Bush Administration's extraordinary claims regarding the President's Commander in Chief powers, A Little Bit of Monarchy:

In Federalist 26 Alexander Hamilton wrote:

[. . .] As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that ``the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.''

In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too well informed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.

[. . .]Despite the clear and unmistakable words of Hamilton; despite the clear and unmistakable grant of authority to the Congress regarding the raising of military forces, the promulgation of Rules for the governing and regulation of the military, and for the declaration of war, and despite the ringing statements of the Supreme Court in Hamdi, some Conservatives and Republicans insist that the President, when acting in his capacity as Commander in Chief, has plenary power, unchecked and unfettered.

(Emphasis supplied.) Sadly, now that the President is a Democrat, some "liberals" have adopted this view of Presidential plenary power as Commander in Chief. It was not always so.

When discussing the Bush Administration's claim of unfettered Presidential power as Commander in Chief, "liberals" would cite the various opinions in Youngstown v. Sawyer. In this post, Does War Make Presidents Kings?, I cited to Justice Frankfurter's concurrence in Youngstown:

By the Labor Management Relations Act of 1947, Congress said to the President, "You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation." . . . But it is now claimed that the President has seizure power by virtue of the Defense Production Act of 1950 and its Amendments. And the claim is based on the occurrence of new events - Korea and the need for stabilization, etc. - although it was well known that seizure power was withheld by the Act of 1947, and although the President, whose specific requests for other authority were in the main granted by Congress, never suggested that in view of the new events he needed the power of seizure which Congress in its judgment had decided to withhold from him. The utmost that the Korean conflict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.

(Emphasis supplied.) These clear strictures, once shouted by "liberals" during the dark days of Bush, are now ignored by some.

Today, some, like John Yoo and Jay Bybee in defense of President Bush's "inherent" power os President, will cite The Prize Cases as supposed support for the notion that a President can start a war. In 2005, I addressed the Yoo/Bybee argument on the Prize Cases:

A Supreme Court opinion cited by Yoo/Bybee to support their assertions of plenary Presidential power is The Prize Cases, decided in 1863. To Yoo/Bybee, the Prize Cases stand for the proposition that the President has unfettered power to act to defend the security of the Nation. But what did the Prize Cases actually say? The Prize Cases involved the seizure of certain vessels who tried to defy the blockade of the South declared by President Lincoln prior to the formal declarations by Congress of an insurrection. Subsequently, four months later, Congress did make such declaration. So does this buttress Yoo/Bybee's point? Let's see:

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 [p669] 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.

. . . Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands."

. . . If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States. [p671]

. . . On this first question, therefore, we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion which neutrals are bound to regard.

If this is support for the Yoo/Bybee view, I don't see it. Lincoln took up arms, via blockade, against the insurrection, formal and declared, of the Southern states. What that has to do with the matters at hand is not clear at all to me. Moreover, Congressional acts are cited as authority for the President's actions. Surely this does not argue for unfettered Presidential Commander in Chief power. In essence, the Prize Cases, the Apollon case and others cited by Yoo/Bybee relate to the President's ability to act in defense of the country when the country is attacked. Think Pearl Harbor. The question of waiting days or weeks for Congressional action to act in defense of the Nation is what those cases were about. If Bush were to have acted to stop the 9/11 attacks without Congressional authorization then the analogy would hold. But unless Bush is acting in ways to stop specific attacks that are imminent and by known parties now, then these analogies do not hold. What Yoo/Bybee argue for is that the President can turn the country into a police state by invoking Commander in Chief powers. And this is simply ludicrous.

While I oppose the Libya action initiated by the President, the policy is not the thing that most concerns me now. What concerns me now is the de facto expansion of the power of the President to unilaterally initiate war on behalf of the Nation. It should not be countenanced by anyone, regardless of party.

Speaking for me only

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    We were promised "something interesting (5.00 / 2) (#1)
    by oculus on Tue Jun 21, 2011 at 10:11:56 PM EST
    today."  And we got it.  Thank you.

    Ugh, I only made it halfway through (5.00 / 2) (#2)
    by Militarytracy on Tue Jun 21, 2011 at 10:47:34 PM EST
    it makes me so mad I can't see straight.  The fruckin fruitcake obots at Orange can't wait to wade into the middle of some killing for a worthy cause they uhhhhhhh ummmmmm think.....they are just going to trust "the One" with all of this.  Afterall he has never been tempted to get into bed with some big money interests and phuck all the little people.  People are dying in Libya.  I want it in stone what the hell we are doing there and it had better not be for one single oil company EVER....people are dying for this....people are dying and it is their country, it is their lives and their freedoms and their families and their children they are fighting for. God help me if I allow the stepping on them and the further robbing of them bringing them firepower.

    I will read the rest tomorrow morning.

    Do we really believe (5.00 / 2) (#3)
    by NYShooter on Tue Jun 21, 2011 at 11:47:35 PM EST
    simply because we don't approve of their form of government, that Iran wouldn't be abrogating its sacred duty to its it's citizens and its sovereignty by not seeking to empower itself with nuclear weapons?

    The world now has to contend with an awkward, untrained, untested, and inexperienced Community Organizer whose exposure to violence started, and ended, with an errant elbow while executing a fade away jump shot.

    I labeled him a megalomaniac when, during the primaries, he took personal control of the placement of Greek columns in a stadium he was to speak at. He also took an inordinate, active interest in the posters bearing his likeness, making sure the blow-dried paint technique used gave off the proper halo-like haze around his head.

    We live in unbelievably dangerous times.  

    I've had a bad feeling (5.00 / 1) (#4)
    by cal1942 on Wed Jun 22, 2011 at 12:06:50 AM EST
    for some years now that the Constitution is being eroded away.

    At the root, IMO, is the massive economic gap that enables concentrated wealth to dictate policy and the Constitution is being ignored or subverted (Citizens United) to make the policy possible.

    I remember thinking that Eisenhower's farewell address (winter term freshman) warning about the growing influence of a military-industrial complex was unwarranted.  I believed that process would prevent any undue influence.  I was 18 and so terribly naive.

    It wouldn't surprise me if one day the military intervened in a Presidential election.  

    When I came to this country, the (5.00 / 3) (#5)
    by NYShooter on Wed Jun 22, 2011 at 01:17:26 AM EST
    Eisenhower/Stevenson election was just taking place. And, as a young boy in first grade, whenever a grown up asked me, "who's the greatest American President ever?" naturally I said George Washington....AND....President Eisenhower.

    And what did those two Leaders hold in common? Their absolute, forged in the crucible of real life experience, admonition to avoid "foreign entanglements." (and the influence of the military)

    true in the 18th. century, true in the 20th. century, and true today, more than ever.


    This "one person's say-so" as Fallows (none / 0) (#7)
    by Anne on Wed Jun 22, 2011 at 09:44:00 AM EST
    describes it seems even more worrisome now that we know that the party affiliation of the president is no guarantee that he or she will make the right/best decision.  And now we have Obama bypassing the formal OLC opinions - which would be binding, I believe - in favor of informal opinions from them and other advisors that allow him to cherry-pick the one that meshes with what he wants to do.

    Since the president is so fond of benchmarks and triggers, and money seems to be the only thing that gets anyone's attention anymore, it may be time to give him an incentive he can relate to: seek and obtain the approval of Congress for the Libyan involvement by a date certain, or funding ends immediately.

    The real question is whether the votes are there and he would get the approval - and if not, then what?

    SITE VIOLATOR (none / 0) (#9)
    by shoephone on Mon Dec 05, 2011 at 12:16:45 AM EST