Mariah Zeisberg - War Powers: The Politics of Constitutional Authority

WAR POWERS
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WAR POWERS
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The Politics of Constitutional Authority

Mariah Zeisberg

PRINCETON UNIVERSITY PRESS

Princeton and Oxford

Copyright 2013 by Princeton University Press

Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540

In the United Kingdom: Princeton University Press, 6 Oxford Street, Woodstock, Oxfordshire OX20 1TW

press.princeton.edu

Jacket illustration: S. E. H. Coyle, Dynamic Imbalance, 2010.

All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Zeisberg, Mariah Ananda, 1977

War powers : the politics of constitutional authority / Mariah Zeisberg.

pages cm

Includes index.

ISBN 978-0-691-15722-1 (hardcover) 1. War and emergency powersUnited StatesHistory. 2. Separation of powersUnited StatesHistory. I. Title.

JK339.Z45 2013

352.23'50973dc23

2012039981

British Library Cataloging-in-Publication Data is available

This book has been composed in Sabon LT Std

Printed on acid-free paper.

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

For Jeffrey Tulis, Christopher Eisgruber, and Maryrose Hightower-Coyle

Contents

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WAR POWERS
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Chapter 1

WHO HAS AUTHORITY TO TAKE THE COUNTRY TO WAR?

In early 2012 President Quaddafis suppression of popular uprisings in Libya began to arouse concern domestically and abroad. Attention began to focus on what, if any, the US response would be. By late February the UN Security Council adopted a resolution expressing grave concern about Libya, and the US Senate unanimously approved a resolution calling for the Security Council to impose a Libyan no-fly zone. On March 18 President Obama deployed troops to Libya.

The presidents domestic authority to intervene in Libya was conditioned by two authoritative texts: the US Constitution, which grants him the power to command the military, and Congress the power to declare war; and the War Powers Resolution of 1973 (WPR), which creates procedural and reporting requirements for deployments. The WPR declares that presidents may introduce US armed forces into hostilities only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States.

Instead of either challenging the constitutionality of the WPR, or discontinuing operations, the executive branch argued that the deployments did not amount either to hostilities or to war in the constitutional sense. By early June, a restive House resolved that the Libyan mission had not been legislatively authorized and stated the legislatures prerogative to withdraw funding.

The legislatures challenge and the presidents response constitute a revealing window into characteristic features of a constitutional war powers debate. Consider first that the debate was nowhere judicialized. Members of the House sued the president, but the US District Court threw the case out, noting its frustration at being asked to hear the case given

The debate pivoted around the meaning of warin the language of the Office of Legal Counsel (OLC), war for constitutional purposes.

The administration also gave reasons that spoke to the governing capacities of the branches. For example, it cited the presidents capacity to respond to rapidly evolving military and diplomatic circumstances.

To argue for the constitutionality of a presidents deployment because of its importance for domestic security interests would seem to violate one central effort of constitutional law: to seek answers about procedural authority precisely so as to avoid controversy over topics like Libyas security significance. Legal objections either condemned Obama for playing fast and loose with constitutional and statutory language, or challenged the integrity of the OLCs legal process.

It is true that the US Constitutions allocation of the power to initiate hostilities is ambiguous.

The Constitution also fails to provide for one authoritative institution to settle this controversy. Whereas the South African Constitution designates its Constitutional Court as the highest court on all constitutional matters, and specifies that the Court makes the final decision whether a matter is a constitutional matter,

In the domain of war powers, the agents who have advanced and judged claims of war authority are not courts but the elected branches themselves as they formulate and defend their policies to one another and to the electorate. They have often done so in ways that are transparently linked to institutional or partisan policy advantage. Presidents in the twentieth century have made vast claims for independent war-making authority. Truman, Ford, Kennedy, Johnson, Nixon, Reagan, George H. W. Bush, Clinton, and Obama all claimed the power to initiate hostilities without congressional authorizationa claim premised on the executives authority to decide on his own what constitutes a threat and an appropriate response to threat. Although it was unusual for nineteenth-century presidents to state it explicitly, presidents from Jefferson to Polk to Lincoln to Wilson behaved as if congressional authorization for military hostilities was optional. In fact, while George W. Bush is remembered for bellicosity, his effort to achieve congressional authorization to fight wars in Iraq and Afghanistan was notably sensitive to legislative prerogatives in war. Many presidents have behaved as though whether to engage in military hostilities is not a relevant question for Congress.

Congress, too, has been actively engaged on its own behalf. Early Congresses made assertions of constitutional authority that are breathtaking to modern ears. The debate between Pacificus and Helvidius, one of the first showdowns between the branches, concerned whether or not it is constitutionally appropriate for the president to offer a point of view about how a treaty should be interpreted. Partisans of Congress worried that a presidents speech about the meaning of a defense treaty would unduly contort the legislatures deliberative space. Many of Congresss esteemed membersSenators Vandenberg, Nye, Taft, Mansfield, Fulbrightwere known for their sustained challenges to executive war authority. In 1973 congressional solicitude for its own institutional honor reached a new level of mobilization in the War Powers Resolution. The Iran-Contra hearings and contemporary agitation about executive authority for interventions in Libya show us that even in the age of the imperial presidency, the legislative branch has its defenders.

The idea that constitutional fidelity means adhering to the meaning of determinate text, or adhering to the decisions of one authoritative, impartial adjudicator is sustained by reference to an idea about constitutional authority called the settlement thesis. The settlement thesis claims that the very point of constitutions is to resolve conflict over basic political questions like the allocation of power between institutions. For the Constitution to be authoritative in disciplining war powers