President Obama and the constitutional power to declare peace
Chris Edelson from American University looks at President Obama’s statement that the U.S. military would remain neutral in the Ukraine controversy, and if he needed to consult with Congress before making it.
President Obama has announced that the United States will not be “getting into a military excursion in Ukraine”. While making clear that he rejects the legitimacy of Russia’s actions, Obama is emphasizing diplomacy and sanctions, in coordination with U.S. allies. This is a wise approach—taking military action against Russia could lead to serious miscalculations and errors (in fact, even non-military initiatives carry risk). The American public seems to recognize this—polling shows Americans support sanctions but overwhelmingly reject the idea of military action.
But, policy considerations aside, does President Obama have the constitutional authority to effectively “declare peace” against Russia? It may very well make sense, in this case, to reject the use of military force—but does that mean the president can always take such action, recognizing a state of peace that prevents Congress from declaring war? There is precedent here, and though it does not necessarily give a clear answer, it may provide helpful guidelines.
In 1793, with Great Britain at war with revolutionary France, there was a question as to whether the new United States had a treaty obligation requiring it to assist France, which had helped the United States gain independence from Britain. Rather than consulting Congress (which was not in session), President George Washington turned to his cabinet for advice. Although Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson had very different views about republican France, they agreed that Washington could issue a proclamation requiring American citizens to stay out of the conflict, and threatening criminal prosecution of any Americans who became involved by supporting one side or the other. Jefferson argued that the proclamation should avoid using the word “neutrality”, and Washington agreed –though the proclamation issued in 1793 is known as Washington’s Neutrality Proclamation.
After Washington issued his proclamation, critics argued that Washington had exceeded his powers by acting unilaterally. The famous “Pacificus-Helvidius” debate between Alexander Hamilton and James Madison ensued. Hamilton argued that Washington, as president, possessed all the “executive power”, as provided in Article II—apart from power traditionally considered “executive” but expressly assigned to Congress by the Constitution (e.g. the power to declare war or ratify treaties).
Hamilton reasoned that, because the power to interpret treaties (outside of litigation) and declare neutrality is not expressly assigned to any other branch, it must belong to the president as part of the executive power. He observed, however, that the President and Congress have “overlapping or concurrent powers” in this area. When the president acts first (as Washington had) by “declaring peace”, Congress is not bound to defer to the president’s decision, although Hamilton argued that Congress should consider the president’s initial action as having “establish[ed] an antecedent state of things which ought to weigh in [any subsequent] legislative decisions.” In other words, Congress should take into account what the president had done before changing course.
Madison (supported by Jefferson) objected that Hamilton was attempting to assign the “royal prerogatives [of] the British [king]” to the American president. In fact, Hamilton had not gone so far as Madison suggested—Hamilton clearly recognized limits on presidential power that did not constrain the British executive, and he rejected the idea of plenary presidential power by emphasizing that Congress remained free to declare war even after Washington had issued his proclamation. But Madison and Jefferson were surely right to worry that Hamilton’s model—the president may act first, and Congress must take into consideration what the president has done before acting itself—might allow the president to force Congress’s hand by taking unilateral action that Congress could not easily undo.
The same concerns apply today (in fact, there is a similar question regarding the meaning of an international agreement that could compel the U.S. to come to Ukraine’s aid). If President Obama—and, of course, his successors—have the authority to unilaterally rule out military action in a certain context, could they make it more difficult for Congress to act?
Perhaps this is not a concern, given the many cautionary tales that warn against the use of military force. Presidential authority to “declare peace” may not seem dangerous. However, the principle established may be a dangerous one—the principle that, on matters of war and peace, the president may act unilaterally, without Congress’s approval. This is not what Hamilton had in mind—he recognized that “the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War”. But advocates of broad presidential power have gone beyond what Hamilton envisioned, claiming that presidents have unilateral authority not only to declare peace but to authorize the use of military force. President Obama has claimed that authority himself.
Even if we agree that the best course of action with regard to Russia and Ukraine is for the United States to rule out the use of military force, it is still advisable for the president to consult with Congress, rather than acting unilaterally. Ultimately, Washington himself recognized this as essential: when his administration attempted to prosecute Americans who violated his proclamation, jurors refused to convict. President Washington was forced to seek approval from Congress – which provided it a year later with the Neutrality Act. President Obama would do well to follow this model—outside of an emergency context, consultation and cooperation with Congress is the best course of action. That does not mean the president must meekly defer to Congress—only that neither branch is empowered to act alone.
Chris Edelson is an Assistant Professor of Government in American University’s School of Public Affairs. His research focuses on presidential power and other questions of U.S. constitutional interpretation. His first book, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror was published in 2013 by the University of Wisconsin Press.
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