History of Constitutional Framing Points to Broad Presidential War Powers
In conclusion to my series about executive war powers, I want to highlight the broader, more sophisticated account of the history of the Framing that undermines any simple claim that the Framers would want Congress to have the power over war because they were anti-executive.
First, the Framers would have understood the Constitution’s distribution of war powers against the background of the British Constitution, which had supplied many of the legal concepts present in the proposed document. Under the formal British system, as described by the widely read William Blackstone, the Crown exercised all of the war power, in which the declaration of war itself played the role of announcing to foreign enemies and domestic citizens a change in legal relations from peacetime to wartime.
Second, British governmental practice in the eighteenth century indicates that Parliament’s control over funding, rather than the role of the declaration of war, provided a sufficient functional check over executive war-making. During the century before the American Constitution, for example, Great Britain engaged in eight significant conflicts; in only one did the nation issue a declaration of war before the start of hostilities.
Third, the political context of the American colonies and newly independent states also would have led to the understanding that the executive possessed the bulk of the war power. Reading the Constitution to maintain the executive’s commander-in-chief authorities bears more consistency with the general development of American constitutional thought from the Revolution through the Framing. Under the British imperial system, colonial governors had exercised unilateral control over the military under their command, subject to control by the assemblies over funding. State experiments in fragmenting the executive, and frustration with the limited powers of the Continental Congress led nationalist reformers to seek the restoration of authority in a unified presidency. Reading the Framers’ treatment of war powers as vesting the power over war in Congress would run counter to this larger historical trend.
Fourth, details from the Framing debates themselves provide evidence that some of the Constitution’s supporters believed that it replicated the British system. When pressed during the Virginia ratifying convention, for example, with the charge that the President’s powers could lead to a military dictatorship, James Madison argued that Congress’s control over funding would provide enough check to control the executive.
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Re: History of Constitutional Framing Points to Broad Presidential War Powers
Again I hate to be the simplistic one, but when in your opinion Professor would a President HAVE TO seek a declaration of war from Congress to act?
If the answer is never, then what function does the Constitutional provision for congressional declaration of war serve?
I hope I'm not being a pest. I've read the whole series, and while the depth of analysis is staggering and appreciated, I'm not sure I've yet found the answer to the above.
Jan '11
Re: History of Constitutional Framing Points to Broad Presidential War Powers
Blackstone was heavily read in the colonies/states, but many of this philsophical ideas were wholly rejected by the founding generation. His discussion on the common law itself was embraced but not his legal philosophy. Their's was a more Cokian view of the law than a Blackstonian.
While British constititutionalism was in the background, the Founders actively rejected large elements of it, especially in it's eighteenth century guise. The legal aspects they often took of the British constituiton was their 17th century ideas with only elements of the 18th (in part, because, they considered the eighteenth century version to be wholly corrupt and irredemiable). Perhaps the key aspect they took from the British thinking was the fear of "arbitrary" government. Unchecked and unfettered will was how they basically defined it, and it could be found in an uncontrolled Parliament as well as an overly-perogative executive. The only way to controll both was to have written constitutions, stating, in most clear language, the powers and repsonbilities of government.
Jan '11
Re: History of Constitutional Framing Points to Broad Presidential War Powers
The colonial experience taught the founders that executive power was dangerous; simplistic but true. This is the reason why nearly all the state constitutions written during the Revolution severely limited the perogative powers of the Governor; they did not want replays of royal governors who could dispatch the militia on whims and unnecessary expeditions at great costs to the citizenry in both taxes and liberty. To be sure, they may have over done it and some balance was eventually restored.
Even the Massachussetts Constitution of 1780s, which created perhaps the strongeest governor of the founding period, made the governor the C-in-C of the State milita to "to lead and conduct them, and with them to encounter, repel, resist, expel, and pursue, by force of arms . . . within or within the limits of this commonwealth; and also to kill, slay, and destroy, if necessary, and conquer, by all fitting ways, enterprises, and means whatsoever, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this commonwealth." Notice: he has power to react with any means necessary, but he cannot start the conflict.
Jan '11
Re: History of Constitutional Framing Points to Broad Presidential War Powers
Finally, as with my other comments, the idea of soverginty plays an imporant role here. The purse was a controlling factor, and a major one if Congress had the spine. In England, after 1688, soverginty was located in the king-in-parliament. No such thing existed in America. Here, soverginty was divided between popular soverginty and state soverginty. At the federal level, this dual soveginty was embodied in Congress with the President acting in fullfillment of their soverginty with powers as commander-in-chief.
Re: History of Constitutional Framing Points to Broad Presidential War Powers
Tommy De Seno: Again I hate to be the simplistic one, but when in your opinion Professor would a President HAVE TO seek a declaration of war from Congress to act?
If the answer is never, then what function does the Constitutional provision for congressional declaration of war serve?
Congress needs to declare war to change the legal status of the country from peace to war. This has important functions under domestic and international law. The Third and Fifth Amendments, for example, on quartering soldiers and grand jury indictments contain exceptions for wartime. The distinction is maintained in federal statutes as well, such as those that allow the government to mobilize the economy. Under international law, a declaration of war converts the legal relationship between every American and enemy citizen into one of hostilities, and changes the rights and responsibilities of third parties, such as allies and neutrals.
Re: History of Constitutional Framing Points to Broad Presidential War Powers
The Framers would have had a very important declaration of war in mind at this time -- the Declaration of Independence. The Declaration of Independence reads very much as an 18th century declaration of war. It lists the grievances against the British King, claims violations of rights and law, and demands a remedy that would end hostilities. The Declaration came in 1776, even though the fighting between the rebelling colonies and British troops at Lexington and Concord began in 1775.
Jan '11
Re: History of Constitutional Framing Points to Broad Presidential War Powers
Well, that leads to an obvious question: If the executive is actually fighting a war, what difference does the legal relationship make? Our soldiers shoot at the enemy just the same. And if the legal relationship is important, why doesn't the Congress do it every time the executive starts fighting?
Dec '10
Re: History of Constitutional Framing Points to Broad Presidential War Powers
I seem to remember reading about two fighter pilots who were at Pearl Harbor when the Japanese attacked. They got into their planes and flew to meet the enemy. They were recommended for medals for this action, but the medals were denied because they did not wait for orders. Some formalities have to be observed.
May '10
Re: History of Constitutional Framing Points to Broad Presidential War Powers
As I think KC Mulville pointed out in an earlier thread, a military strike by order of the President irrevocably alters the relationship between our nation and the other. Whatever Congress decides to do, we are committed to a hostile and probably violent relationship with that government. If you're right, John, then the Constitution enables the President to force the hand of Congress.
Has Congress ever shut down a President's war with legislation, rather than politics?
Re: History of Constitutional Framing Points to Broad Presidential War Powers
John Yoo
Tommy De Seno: Again I hate to be the simplistic one, but when in your opinion Professor would a President HAVE TO seek a declaration of war from Congress to act?
If the answer is never, then what function does the Constitutional provision for congressional declaration of war serve?
Congress needs to declare war to change the legal status of the country from peace to war. This has important functions under domestic and international law. The Third and Fifth Amendments, for example, on quartering soldiers and grand jury indictments contain exceptions for wartime. The distinction is maintained in federal statutes as well, such as those that allow the government to mobilize the economy. Under international law, a declaration of war converts the legal relationship between every American and enemy citizen into one of hostilities, and changes the rights and responsibilities of third parties, such as allies and neutrals. · Mar 28 at 10:14am
Thanks that clears it up.
It would seem then that the President always has the right to attack/defend. The Congress gets to decide which legal status is most advantageous and votes accordingly.
Of what necessity then was passage of the War Powers Act? Redundant?
Dec '10
Re: History of Constitutional Framing Points to Broad Presidential War Powers
To my relatively uninformed mind, Professor Yoo's arguments seem consistent with history.
The practical reality is military commanders will obey the President's orders to initiate and engage in offensive military operations -- up to some unknown point -- without Congressional approval. I wonder where military commanders would draw a line.
The precedent was set a long time ago, and repeated, without Congress doing anything about it.
Outside of the 1973 War Powers Resolution, which may be unconstitutional and which Congress has avoided testing in court, the only way Congress can block the President is by withdrawing funding.
Obama is trying to set a new precedent, tossing away the tradition of at least consulting with Congressional leaders beforehand. claiming UN approval makes that unnecessary. Unless Congress challenges this precedent, future military commanders will obey orders to initiate and engage in offensive operations on that basis.
I think Congress ought to challenge this. However, I doubt they will unless the Libyan intervention drags on for more than about six months. If this happens it may become an issue in the 2012 Presidential race. Obama has a huge interest in bringing the Libyan intervention to a successful end as quickly as possible.
Oct '10
Re: History of Constitutional Framing Points to Broad Presidential War Powers
Aaron Miller: As I think KC Mulville pointed out in an earlier thread, a military strike by order of the President irrevocably alters the relationship between our nation and the other. Whatever Congress decides to do, we are committed to a hostile and probably violent relationship with that government. If you're right, John, then the Constitution enables the President to force the hand of Congress.
Has Congress ever shut down a President's war with legislation, rather than politics? · Mar 28 at 12:41pm
Vietnam. The War Powers Resolution was passed in the aftermath of Vietnam to constrain the President's ability to use military force without a declaration of war.