Going to War:
The President and the Constitution
Edward J. Harpham
Dean of The Honors College
Associate Provost
Professor of Political Science
The University of Texas at Dallas
Talk prepared for President’s Day. Brookhaven College. Dallas County Community College.
Dallas, Texas. February 16, 2015.
Syria and Obama’s Dilemma: 2013
Obama’s Red Line
August 20, 2012, President stated off script.
“We have been very clear to the Assad regime, but also to other players on the
ground, that a red line for us is we start seeing a whole bunch of chemical weapons
moving around or being utilized. That would change my calculus. That would change
my equation.
“…We have communicated in no uncertain terms with every player in the region that
that’s a red line for us and that there would be enormous consequences if we start
seeing movement on the chemical weapons front or the use of chemical weapons.
That would change my calculations significantly.”
April 25, 2013, a White House Official said
“We go on to reaffirm that the President has set a clear red line as it relates to the
United States that the use of chemical weapons or the transfer of chemical weapons
to terrorist groups is a red line that is not acceptable to us, nor should it be to the
international community.”
Obama on the “International Red
Line” (September 4, 2013)
“First of all, I didn’t set a red line; the world set a red line. The world set a red
line when governments representing 98 percent of the world’s population
said the use of chemical weapons are abhorrent and passed a treaty
forbidding their use even when countries are engaged in war.
“Congress set a red line when it ratified that treaty. Congress set a red line
when it indicated that — in a piece of legislation titled the Syria
Accountability Act — that some of the horrendous things that are happening
on the ground there need to be answered for.
“And so when I said in a press conference that my calculus about what’s
happening in Syria would be altered by the use of the chemical weapons,
which the overwhelming consensus of humanity says is wrong, that wasn’t
something I just kind of made up. I didn’t pluck it out of thin air. There’s a
reason for it.”
What is the “Red Line”
– Used by Nixon in Cambodia in 1970
– Used by Israelis in 1978 in Lebanon
– Secretary of State George Schultz used “red line”
in reference to Iranian attack on a US tanker on
10/17/1987
– The idea of the “red line” has been used by every
president since Reagan
• Involves the executive unilaterally promising war on
behalf of American people (without congressional
approval)
• Red lines are about discretion.
The Constitution and the Red Line
Article I Section 8 Clause 11: Congress shall
have the power “To declare war, grant Letters of
Marque and Reprisal, and make Rules
concerning Captures on Land and Water”.
Article II Section 2 Clause 1: “The President
shall be Commander in Chief of the Army and
Navy of the United States”.
The Problem
• There appears to be a sharp line drawn in the
Constitution between the role of Congress in declaring
war and the role of the President as Commander in
Chief.
• Offensive force (Congress) v. defensive force
(Executive).
• But appearances are deceiving.
• In an era of global terrorism, the sharp line has been
blurred.
• Constitutional questions have been raised about the
expanding discretionary authority for the president in
going to war.
Declaring War Versus Authorizing the
Use of Force I
• Under International Law, war (the appeal to force to address issues)
and peace (cooperation and negotiation of disagreements) are
considered to be two distinct forms of relations between states.
• A declaration of war thus changes this relationship.
• A declaration of war automatically brings in to effect certain
statutes conveying special powers to the president regarding trade,
armaments, commerce, and communications among other things.
• An authorization to use force does not create a state of war
• Declarations of war are generally no longer seen as prerequisite for
using force. The idea of a state of war has become muddled.
• Some argue that authorizations to use force now have the same
effect as declaring war.
Declaring War Versus Authorizing the
Use of Force II
• Declarations of War (5 times against 11 countries)
– Armed attacks against USA
– Threats to USA rights or interests
– Triggers standby authority to President
• Authorization of the Use of Force
– Sometimes congress gives less authority than requested
– Does not appear to trigger standby authority, although
executive has argued since 2001 that this is an exception
• Both waive time limitations imposed by War Powers
Resolution
Declarations of War
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War of 1812
Mexican American War of 1846
Spanish American War of 1898 (note that it was sparked not by an attack on the
USA but a demand for Cuban independence and American interests in Cuba)
World War I
World War II
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President requests declaration and gives reasons
19th century: passed by Congress as a Bill
20th century: passed by Congress as a joint resolution
– “authorized and directed to employ the entire naval and military forces of the United States
and the resources of the Government to carry on war against [the ‘Government’ of the
particular nation]; and to bring the conflict to a successful termination all of the resources of
the country are hereby pledged by the Congress of the United States”
•
Signed by president
Authorization the Use of Force I
• Adams and Jefferson: sought authorization to use force to
enable USA to protect interests from predatory actions of
foreign powers.
– France 1798: to protect citizens and commerce
– Tripoli 1802: to protect U.S. shipping against Tripoli
• Algeria 1815: “to protect commerce and seamen”
• Suppression of Piracy 1819-1823: “To protect commerce and
punish piracy”
Authorization the Use of Force II
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•
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Formosa 1955: “to protect rights and security of the United States”
extended “to ensure the security of Formosa and the Pescadores.”
Repealed in 1974.
Middle East 1957: allowed armed force in Middle East if requested to
prevent aggression of international communism provided such force is
consonant with treaty obligations and Constitution. Not repealed.
Southeast Asia (Gulf of Tonkin Resolution) 1964: “to promote the
maintenance on international peace and security in Southeast Asia.
President or Congress could terminate. Repealed in 1971.
The War Powers Resolution (1973)
• Concern that Congress had lost its role in authorizing the use of force in
the Cold War and Vietnam War. Enacted over President Nixon’s veto.
• Provisions:
– Mandated president consult with Congress in every possible instance before
using force
– Section 4(a) Must report to congress within 48 hours when US forces have
been used and hostilities are imminent, into territory airspace or waters of
foreign nation, or in numbers that enlarge troops already on the ground
– Section (b) states that if such a report is submitted that the President will
terminate involvement unless Congress: declares war, extends involvement by
law, or cannot meet. This leaves open a 60-90 day withdrawal period
• Implications of WPR for checks and balances
• CBO reports that WPA has triggered consultations and communications
over 100 times since its passage
Authorizing the Use of Force III
• Lebanon 1983: Issues was participation in multinational peacekeeping
force in September 1982. Reagan argued that War Powers Resolution did
not apply to a non-combat situation. Many in Congress objected. In
September 1983, a compromise resolution passed Congress and was
signed by President in October, although he denied agreeing to limits of
the War Powers Resolution limitations.
“that I do not and cannot cede any of the authority vested in me under the
Constitution as President and as Commander in Chief of United States Armed Forces.
Nor should my signing be viewed as any acknowledgment that the President’s
constitutional authority can be impermissibly infringed by statute, that congressional
authorization would be required if and when the period specified in section 5(b) of the
War Powers Resolution might be deemed to have been triggered and the period had
expired, or that section 6 of the Multinational Force in Lebanon Resolution may be
interpreted to revise the constitutional authority to deploy United States Armed
Forces.”
Authorizing the Use of Force IV
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Iraq 1991: August 2, 1990. Iraq invaded Kuwait. Bush responded by
reporting to Congress under the War Powers Resolution that troops
were being deployed. By end of year, 350,000 troops deployed. Got UN
and Coalition support to use force. Bush asked for congressional support,
but felt that he didn’t need it constitutionally. Joint resolution passed,
but signed with a proviso
The H.W. Bush Proviso: “As I made clear to congressional leaders at the
outset, my request for congressional support did not, and my signing this
resolution does not, constitute any change in the long-standing positions
of the executive branch on either the President’s constitutional authority
to use the Armed Forces to defend vital U.S. interests or the
constitutionality of the War Powers Resolution.”
Authorization for the Use of Military
Force (September 18, 2001)
• September 11, 2001: World Trade Center attack. September 14,
2001 a joint resolution passed both houses of congress (420-1 and
98-0).
• (a) IN GENERAL.—That the President is authorized to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in
order to prevent any future acts of international terrorism against
the United States by such nations, organizations or persons
The War on Terrorism (2001- )
September 11, 2001: World Trade Center attack. September 14, 2001 a joint resolution
passed both houses of congress (420-1 and 98-0).
– Rejected a vote that would have called for reports every 60 days from the president.
– Resolution noted that it was intended to “constitute specific statutory authorization
within the meaning of section 5(b) of the War Powers Resolution.” Moreover, nothing in
resolution is meant to superseded the WPR.
– Note that this authorized action not only against specific nations, but also organizations
and people linked to 9/11.
– Bush continued to argue that the Executive could take action to deter and prevent acts
of terrorism against the US and that he continued to support executive position on the
WPR
– Bush Administration interpreted the resolution as confirming President’s authority as
commander in chief to conduct antiterrorism in and outside USA
In 2004, Supreme Court affirmed President’s powers to “detain enemy combatants” as part
of necessary force authorized by Congress. But also found that enemy combatants could
challenge their detention in Federal Court. Administration used as justifying surveillance of
the use of electronic communication in the United States without following procedures
demanded by FISA.
Iraq 2002
• Summer of 2002
– Bush Administration presents its view of the dangers posed by weapons of
mass destruction in Iraq to US interest and security.
– September 4, 2002, Administration meets with members of both parties in
Congress
– September 12, 2002 Bush addressed General Assembly, stating that US would
enforce UN sanctions with or without UN support
– Resolutions passed on October 10 and 11 (296-133 and 77-23). Bush signed
on October 26, 2002.
– Bush cited the threat posed to “international peace and security posed by
Iraq.” He looked forward to close consultation with Congress, included written
reports every 60 days.
“as he determines to be necessary and appropriate in order to - (1) defend the national
security of the United States against the continuing threat posed by Iraq; and (2) enforce all
relevant United Nations Security Council resolutions regarding Iraq.”
Note: limited to Iraq with no specific time table. Thus appears to justify
continuing occupation of Iraq.
Unauthorized Use of Force ?
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Ford in Vietnam (1975)
Bush’s Operation Desert Shield (1990)
Bush/Clinton in Somalia (1992-3)
Clinton in Haiti (1994)
Clinton in Bosnia (1995) and Kosovo (1998-99)
Obama in Libya (2011)
Obama in Syria and Iraq (2014-15)
The Muddying of the Constitutional
Waters
• Does the assertion of a “Red Line” pose a
dilemma to the executive, one that necessarily
results from the checks and balances in the
Constitution?
• Must we accept the disturbing fact that it is the
Executive who decides when, where, how, and
why we must wage war ?
• Are there changes that could be made in law or
the Constitution to reduce the chaos and
uncertainty that has come to surround the issues
of war and force?
Obama’s Dilemma 2015
Proposed: Authorization for the Use of Military
Force against the Islamic State of Iraq and the Levant
• Preamble
• Whereas the terrorist organization that has referred to itself as the
Islamic State of Iraq and the Levant and various other names (in this
resolution referred to as ‘‘ISIL’’) poses a grave threat to the people
and territorial integrity of Iraq and Syria, regional stability, and the
national security interests of the United States and its allies and
partners;
• Whereas ISIL holds significant territory in Iraq and Syria and has
stated its intention to seize more territory and demonstrated the
capability to do so;
• Whereas ISIL leaders have stated that they intend to conduct
terrorist attacks internationally, including against the United States,
its citizens, and interests; …
Proposed: Authorization for the Use of Military Force
against the Islamic State of Iraq and the Levant
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION.—The President is authorized, subject to the limitations in subsection (c),
to use the Armed Forces of the United States as the President determines to be necessary and
appropriate against ISIL or associated persons or forces as defined in section 5.
(b) WAR POWERS RESOLUTION REQUIREMENTS.—
(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with section 8(a)(1) of the War Powers Resolution
(50 U.S.C. 1547(a)(1)), Congress declares that this section is intended to constitute specific statutory
authorization within the meaning of section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).
(2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in this resolution supersedes any requirement of
the War Powers Resolution (50 U.S.C. 1541 et seq.).
(c) LIMITATIONS.— The authority granted in subsection (a) does not authorize the use of the United States
Armed Forces in enduring offensive ground combat operations.
Proposed: Authorization for the Use of Military
Force against the Islamic State of Iraq and the
Levant
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SEC. 3. DURATION OF THIS AUTHORIZATION. This authorization for the use of
military force shall terminate three years after the date of the enactment of this
joint resolution, unless reauthorized.
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SEC. 4. REPORTS. The President shall report to Congress at least once every six
months on specific actions taken pursuant to this authorization.
•
SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED. In this joint resolution, the
term ‘‘associated persons or forces’’ means individuals and organizations fighting
for, on behalf of, or alongside ISIL or any closely-related successor entity in
hostilities against the United States or its coalition partners.
•
SEC. 6. REPEAL OF AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ.
The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public
Law 107– 243; 116 Stat. 1498; 50 U.S.C. 1541 note) is hereby repealed.
What does this mean?
• President will receive support for the current
campaign.
• President appears to be limiting his actions in time. But
not geographically!
• The core objective is to destroy ISIL.
• The means will be through “systematic and sustained
airstrikes”
• Flexibility but no sustained deployment of ground
forces.
• but could temporarily deploy special forces particularly
against ISIL leadership!
Congressional Response
• Democrats are concerned that it does not
limit the president enough to engage in wars
actions.
• Republicans are concerned it constrains the
president too much.
Some Modest Proposals
Proposal 1: Give the Constitution a chance: Revoke
the War Powers Resolution.
Louis Fisher and David Gray Adler (1998)
The Framers adopted a set of principles that are fundamental to self-government. The
constitutional requirement of congressional authorization for offensive actions represented a
radical break from monarchical rule in England, and it reflected the Framers' commitment to
republican principles in the conduct of foreign policy. Word games by presidents to get around
this requirement do much to harm and undermine the values of our constitutional democracy.
Louis Fisher (2008)
The line between offensive and defensive military action may not always be obvious, but failure
to see the difference, or failure to draw the difference, sanctions an interpretation of the
Commander in Chief Clause that does violence to constitutional values, representative
government, and the system of checks and balances, all at the cost of individual rights and
liberties.
Proposal #2:
• Rethink the War Powers Act and AUMF. Recognize the
constraints on declaring war in the 21st century.
– Develop bipartisan congressional norms and laws that demand
consultation and approval of offensive military actions overseas under
the WPA and AUMF resolutions
Proposal #3:
• Develop a constitutional amendment with teeth that would
clarify what the authorization to use force is.
•
Reach new constitutional agreement on proper role of executive discretion and
congressional oversight in the war on terror.
Concluding Remarks
• We live in troubling times.
• Worldwide terrorism threatens safety, public
order and freedom.
• But it also threatens some of our most sacred
values. Among these is our belief in the rule of
law and a concern over too much discretion
being delegated to any one person or branch.
The Concerns of Justice Kennedy
• “Because of nation’s past military conflicts have been of limited
duration, it has been possible to leave the outer boundaries of war
powers undefined, If, as some fear, terrorism continues to pose
dangerous threats to us for years to come, the Court might not
have this luxury. The result is not inevitable, however. The political
branches, consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine debate about
how best to preserve constitutional values while protecting the
Nation from terrorism.” Kennedy in Boumediene v. Bush. 553 U.S. 723, 797-98
(2008)
• Today’s debate about AUMF ISIL is not just about safety or
terrorism or going to war.
• It is also about protecting our constitutional values.
Thank You.
Edward J. Harpham
[email protected]