The So-Called “Islamic State” and the Constitution: What Can the President Do? (Part One)
In this two-part commentary, Robert F. Turner from the University of Virginia looks at some points of fact and law in the debate over executive power and American involvement in fighting terrorists in Iraq and Syria.
As Americans watch the growth and barbaric behavior of the organization that calls itself the “Islamic State” (IS)—but may be neither—important issues of constitutional, statutory, and international law have arisen. Sadly, much of the public debate on this issue has been driven by ignorance and misinformation. If we are going to find an effective way to deal with this rapidly expanding threat, it is important that we clarify some widely misunderstood points of both fact and law.
Is America “at war” with the IS? Should Congress “declare war,” or at least enact a new Authorization for the Use of Military Force (AUMF) as it did against al Qaeda and related terrorist groups in 2001? Can the President use force without new statutory authority? Can the President authorize armed attacks against IS forces in Iraq? Can he lawfully authorize attacks on targets inside Syria without that country’s consent? These are important issues that warrant serious discussion.
Constitutional Background
This month we celebrate the 227th anniversary of the signing of our Constitution, which under our legal system is the ultimate source of legal authority—supreme, of course, to federal and state statutes, but also (for purposes of U.S. law) to international treaties and customary law. It is thus fitting that we begin our discussion with that document.
A reading of the constitutional text can produce confusion about the separation of powers related to war and foreign affairs. I wrote a commentary[1] on this blog last year that addressed these issue in some detail, and will not repeat those arguments here. But, in interpreting an 18thcentury document, it is important to understand that words sometimes change their meaning over time. Thus, modern readers might be surprised to learn that a signer of the Constitution described it in a letter to a friend as “awful”—unaware that the word originally meant “to fill one with awe” (or, in the modern vernacular, awesome). Thomas Jefferson once used the words “terrific character” to mean “cruel” and “vindictive,” which was true to the Latin root terrificus (“to frighten”). Today, awful and terrific have very different meanings, and we can be led astray if we fail to appreciate such changes when we seek to understand historic document.
The Grant of “Executive Power”
A classic example of this is the term “executive power.” Today, most Americans assume that when in Article II, Section 1, of the Constitution the Framers vested “The executive Power” in the president, it conveyed the power to “execute” or carry out the laws that would be enacted by Congress. But, to men raised on the writings of John Locke, Montesquieu, and Blackstone, the term “executive power” also included the general management of the nation’s external intercourse—what Locke described as authority over “war, peace, leagues, and alliances.” As Professor Quincy Wright noted in his classic 1922 treatise, The Control of American Foreign Relations: “[W]hen the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant . . . .”
Thus, when in April 1790 President George Washington asked Secretary of State Thomas Jefferson where the Constitution had vested the details of foreign policy not specifically addressed in the instrument, Jefferson noted that the Constitution had “declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate . . . .” From this, he reasoned: “The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”
Washington shared Jefferson’s memo with Representative James Madison and Chief Justice John Jay, and noted in his diary that both endorsed Jefferson’s view that the Senate had “no Constitutional right to interfere” with such decisions, “their powers extending no further than to an approbation or disapprobation of the person nominated [e.g., to be an ambassador] by the President, all the rest being Executive and vested in the President by the Constitution.”
This view was also embraced by Jefferson’s chief rival in Washington’s cabinet, Alexander Hamilton, who wrote in 1793: “It deserves to be remarked, that as the participation of the Senate in the making of Treaties and the power of the Legislature to declare war are exceptions out of the general ‘Executive Power’ vested in the President, they are to be construed strictly—and ought to be extended no further than is essential to their execution.”
The War Powers of Congress
In recent days there has been a heated debate about whether America is “at war” with the “Islamic State,” or whether this is instead a “counter-terrorism operation.” The answer depends upon what is meant by “at war.” We certainly appear to be engaged in an armed conflict, which in a generic sense can be described as “war.” But we are not in a legal “state of war,” for (as will be discussed below) such a legal relationship can only exist between sovereign states. To some, this debate is really about the vigor with which we will engage our adversary rather than legal technicalities, and I will address the problem of “hitting softly” in Part Two of this post (scheduled for publication tomorrow).
When on August 17, 1787, James Madison successfully moved in the Constitutional Convention to reduce the power given to Congress in Article I, Section 8, from the power “to make war” to the more limited power “to declare war,” he chose a term of art from the law of nations that had a very specific meaning. As Hugo Grotius explained in 1620, force used to “repel an invasion” or “to punish the actual author of some crime” did not require a declaration of war, which was only associated with all-out aggressive wars that are no longer lawful under international law. No country has clearly issued a declaration of war since the UN Charter went into force in 1945.
Historically, presidents have sent U.S. armed forces into harm’s way more than 200 times in our history, often using “force short of war” to deter aggression or protect American lives or interests. In contrast, Congress has issued a total of eleven formal declarations of war in only five conflicts: the War of 1812, the Mexican-American War (1846), the Spanish-American War (1898), World War I (1917 against Germany and Austria-Hungary), and World War II (1941 against Japan, Germany, and Italy; 1942 against Bulgaria, Hungary, and Romania).
Given the modern rhetoric in congressional debates about not wanting to give the president a “blank check,” it is worth noting that formal declarations of war have historically either declared or merely recognized a state of war and then authorized the President “to use the whole land and naval force of the United States” to prosecute the war. Put simply, formal declarations of war are by their nature “blank checks.”
Congress was given a veto or “negative” over a decision to launch an all-out aggressive war, and—through its powers to “raise and support an army” and “provide and maintain a navy”—authority to decide on the existence and composition of military forces. It also was given control over appropriations, which are needed to purchase weapons and supplies. But in settings other than “perfect” aggressive war, the Commander in Chief decides how to best use whatever military resources Congress has provided to protect the interests of the nation and keep the peace.
When in 1789 Madison introduced a bill in the House to create a Department of Foreign Affairs (later renamed the Department of State), the Constitution required that the President obtain the “advice and consent of the Senate” before appointing the department head. After a brief debate over where the Constitution had vested the power to remove a cabinet member from office, it was agreed that since the Senate’s involvement in the appointment process was an “exception” to the general grant of “executive power” to the President, the Senate would have no negative over a presidential decision to remove the secretary of state. Similarly, in the 1901 case of Fourteen Diamond Rings v. United States, the Supreme Court declared that a resolution passed by the Senate seeking to “interpret” terms of a treaty that had already been ratified by the President was “absolutely without legal significance.”
It may be worth noting at this point that, shortly after Madison’s proposal at the Philadelphia Convention to reduce the power of Congress from “make war” to “declare war” was approved, Pierce Butler proposed that Congress also be given the power to end wars. After some discussion, not a single state voted in favor of the idea. Congress has no obligation to provide the President with new money, personnel, or equipment; but it’s constitutional “negative” over a decision to launch an all-out aggressive war was intended to be construed strictly, and does not empower it by statute (including a conditional appropriation) to usurp any part of the commander-in-chief power.
There is more than a little irony in the current controversy over whether new congressional authorization is necessary to deal with the threat from the so-called “Islamic State,” as on January 30, 2007, then-U.S. Senator Barrack Obama introduced the Iraq War De-Escalation Act of 2007 (S. 433), that if enacted would have attempted to make President George W. Bush’s announced “surge” of more than 20,000 additional troops to Iraq illegal. (Eighteen months later, while running for president, Senator Obama acknowledged that the surge he had sought to block “succeeded beyond our wildest dreams.”)
The Obama bill (which only drew 3 cosponsors) did not make it out of the Foreign Relations Committee. But had it been enacted over a presidential veto, it would have in my view been flagrantly unconstitutional. As Madison documented in his Notes on the Federal Convention, one of the reasons for narrowing the power of Congress from “make war” to “declare war” was to make it clear that the conduct of war was exclusively an “executive” function. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court reaffirmed the principle that “Congress cannot direct the conduct of campaigns.” Deciding to deploy forces held in reserve (the 2007 “surge”) is at the core of the commander-in-chief power.
The War Powers Resolution and the Issue of a new AUMF
In my commentary last year on the President’s threat to use force against Syrian President Bashar Assad if he again used chemical weapons, I explained why the 1973 War Powers Resolution was a fraud and is unconstitutional. Readers interested in that (very important) issue can review that article or Google my name and “War Powers Resolution” to find several books and articles I’ve published on the issue over more than three decades. There was a time many years ago when I felt like a lone voice on this issue, but the only people who seem to take the 1973 statute seriously these days are members of the congressional opposition party.
It may be useful at this point to correct one common misperception about the War Powers Resolution. It is sometimes said that it authorizes the president to send U.S. armed forces into hostilities without legislative sanction for a period of up to sixty days. Under the Constitution, the president has considerable authority to deploy forces into harm’s way for more than sixty days without even notifying Congress, but the War Powers Resolution does not confer any additional authority.
Properly understood, in enacting the War Powers Resolution Congress was attempting to tie the president’s hands anytime he wished to send U.S. armed forces into situations outside our borders that might lead to hostilities save in the event of a direct attack “upon the United States, its territories or possessions, or its armed forces.” According to Section 2(c) of the statute, other deployments or uses of U.S. armed forces that might lead to hostilities would require either a formal declaration of war or “specific statutory authorization.”
Note that Section 2(c) does not even recognize presidential authority to rescue endangered American civilians abroad. I raised this point in a 1984 debate with the statute’s primary author, Senator Jacob Javits, who acknowledged that Congress could not constitutionally deprive the president of this power. He explained that the House was unwilling to acknowledge this presidential power, and the Senate decided not to press the issue.
To interpret the War Powers Resolution as authorizing presidents to use any force they wish for a period of 60 days is not only totally inconsistent with the clearly expressed purposes of the statute, it is also expressly negated by Section 8(d)(2), which provides that nothing in the resolution “shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities . . . .”
As I noted in last year’s commentary, the War Powers Resolution was portrayed as a response to the unpopular Vietnam War—ignoring the reality that in August 1964 Congress had by a 99.6% margin enacted specific statutory authorization, “as the President determines,” to “take all necessary steps, including the use of armed force, to assist any . . . protocol state of the [SEATO Treaty] requesting assistance in defense of its freedom.” The SEATO “protocol states” were South Vietnam, Laos, and Cambodia. When asked during Senate floor debate whether the statute would authorize the president to “use such force as could lead into war,” Foreign Relations Committee chairman J. William Fulbright—who had introduced the joint resolution—replied: “That is the way I would interpret it.”
Contrary to modern conventional wisdom, America went to war in Vietnam with overwhelming support from Congress and the American people. In the month surrounding the 1964 statutory authorization, Lyndon Johnson’s approval rate in the Gallup Polls shot up 30 points—an increase of 58%. And the Gallup Organization attributed the spike to LBJ’s decision to respond with armed force against North Vietnam.
(PART II OF THIS COMMENTARY WILL BE POSTED TOMORROW.)
Professor Turner holds both academic and professional doctorates from the University of Virginia School of Law, where in 1981 he co-founded the Center for National Security Law. He is a former three-term chairman of the ABA Standing Committee on Law and National Security and has authored two books on the War Powers Resolution. The views expressed are personal.
