OPINION — At the direction of President Donald Trump, U.S. armed forces conducted an attack against Iran, Operation Midnight Hammer. The President’s decision to launch the attack was made without seeking or obtaining congressional authorization. This implicated a question that has divided scholars and legal advisors for decades, if not centuries: what is the source, scope, and limits of presidential war powers? In the immediate aftermath of the attack this question, perhaps unsurprisingly, generated divergent expert opinions (see here and here). What it did not generate was any type of meaningful congressional or public backlash, reinforcing Justice Robert Jackson’s warning to Congress in his iconic concurrence in what is perhaps the most significant national security law decision ever issued by the Supreme Court, the Steel Seizure case: “If not good law, there was worldly wisdom in the maxim attributed to Napoleon that ‘The tools belong to the man who can use them.’ “
We know the President’s legal advisers must have concluded launching the attack fell squarely within the scope of his constitutional authority. This was almost certainly premised on a long line of Department of Justice opinions endorsing the assertion of what is generally regarded as ‘unilateral’ presidential war power: the authority to order a combat operation without seeking or receiving prior congressional authorization. This interpretation of presidential war powers is built on a three-pillar foundation: first, the authority inherent in the Commander in Chief clause of Article II of the Constitution. Second, the history of presidential war powers that affirms this inherent constitutional power. And third, a restrictive interpretation of the congressional role in war powers decisions that is limited to military engagements of scope and duration to qualify as ‘war’ within the meaning of the Declaration clause of Article I, meaning that only such large-scale military actions implicate Congress’ exclusive declaration of war authority. And, looming in the background of all of this is a pesky federal law enacted over President Nixon’s veto in 1973: the War Powers Resolution.
While there is nothing close to consensus on the legitimacy of this theory of presidential war power, this latest military operation provides a useful moment to consider how the Constitution, historic practice, and the War Powers Resolution interact to frame the legal assessment of such power.
The Constitutional Foundation
The adage that the Constitution separated powers is somewhat misleading. Indeed, the genius of the Constitution was not separating powers between the three branches of government, but separating certain authorities over shared power. As Justice Robert Jackson noted in the Steel Seizure case, “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
This is certainly true in relation to war powers. Article I of the Constitution vests Congress with extensive war powers, to include the authority to declare war and grant letters of marque and reprisal, to raise and support armies, to create a navy, to provide for calling the state militias into federal service, to make rules for the land and naval forces, to make rules for captures on the land and waters, to appropriate funds to pay for the military and military operations, and to make all other laws that are necessary and proper to carry into effect all powers vested in the national government. But Congress has no authority to direct the conduct of war, as that authority is vested in the President who, as provided in Article II, shall be the commander in chief of the armed forces and the militia when called into the service of the nation.
What this diffusion of war powers has meant in terms of the power to initiate and wage hostilities remains a subject of debate. The most restrictive interpretation of presidential authority treats the commander in chief clause as limited to the command and control function, designating the president as the ‘top general’ of the armed forces when Congress has authorized hostilities. On the other end of the spectrum is the view that Congress’ power is limited to form and not function; that while only Congress may legally ‘perfect’ a war through the enactment of a declaration of war, it has no monopoly on authorizing war. Instead, Article II vests the President with inherent power to initiate and wage war whenever he determines it is in the national interest – at least where Congress has not enacted law to restrict such action. Proponents of this interpretation often cite the drafting history of the declaration clause, the first version of which vested Congress with the authority to ‘make’ war. However, ‘make’ was changed to ‘declare’ war, suggesting the authority to ‘make’ war was never vested exclusively in the legislative branch.
There are, however, certain widely accepted ‘guideposts’ for interpreting the scope of presidential war powers. First, there is the general agreement that the President is vested with inherent authority to respond to an actual or imminent attack on the nation or its armed forces. The Supreme Court endorsed this inherent authority in relation to President Lincoln’s blockade of the Confederate states during the Civil War. In The Prize Cases, the Court considered whether the seizure and sale of neutral shipping pursuant to the jus belli (the law of war) was lawful absent some congressional declaration of war or its statutory equivalent. The ship owners argued that the sale of their property as wartime ‘prize’ required a state of war, which only Congress could authorize. The Court rejected this argument, and held that:
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be “unilateral.”
This inherent authority was also recognized by Congress in the War Powers Resolution, by any measure the high-water mark of congressional efforts to limit presidential warmaking initiatives. Section 1. C. of the statute, which defines when the president is legally authorized to commit U.S. armed forces to hostilities or situations where hostilities are imminent, provides:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
While the WPR does not define the scope or duration of a ‘defensive’ use of the armed forces, its express acknowledgment of the same constitutional authority articulated in the Prize Cases leaves little doubt as to the president’s authority to order such missions.
History also suggests the president is vested with inherent authority to use the armed forces to rescue Americans abroad. This ‘rescue power’ was included in the original Senate draft of the WPR but removed during conference negotiations with the House of Representatives. The removal of rescue from Section 1.C. does indicate Congress rejected any claim of such authority. However, the WPR also provides that nothing in the law, “is intended to alter the constitutional authority of the Congress or of the President . . .” To this end it is notable that no President has ever acknowledged the constitutionality of the WPR, and almost every President since its enactment in 1973 has authorized military action to rescue Americans abroad. Indeed, the first major combat operation undertaken after enactment of the WPR was the operation to rescue the S.S. Mayaguez and its crew in May of 1975. Ordered by President Ford with no congressional authorization, the operation lasted three days and cost the lives of 38 U.S. personnel and the loss of three helicopters. Yet, instead of condemning the President for violating the WPR, the congressional response was overwhelmingly favorable. Coming close in time to enactment of the WPR, this action and the congressional (non) response support presidential claims of rescue power.
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What is far more controversial is the president’s authority to initiate hostilities absent a defensive or rescue justification. Like President Trump, many prior presidents have asserted inherent constitutional authority to order such military operations, a number of which post-date the WPR. Some of the more significant of these operations include the air campaign against Serbia ordered by President Clinton, the air campaign against Libya ordered by President Obama, and the missile attack against Syria ordered by President Trump during his first term. Other significant combat operations have either been premised on defense of U.S. interest or nationals (such as the invasion of Panama ordered by President George H.W. Bush), or expressly authorized by joint resolution enacted by Congress (the equivalent of a statute), such as the First Gulf War and the invasions of both Afghanistan and Iraq following the terror attacks of September 11th. However, even when so authorized, presidents have insisted such authorization was unnecessary.
As noted above, some experts claim that absent express statutory authorization, the President lacks any constitutional authority to commit U.S. forces to combat other than responsive or rescue operations. However, these arguments dismiss longstanding historical practice that suggests a much broader inherent presidential authority. Congress does retain the authority to check assertions of such power by express statutory restriction, for example enacting a law prohibiting a military operation or taking the more likely action of withdrawing or otherwise denying funds to support such an operation. However, congressional inaction in response to a presidential assertion of war powers will almost always be viewed by the executive branch as implicit support for that assertion. This is especially true when Congress acts to provide the resources needed to conduct the operation.
Recent examples of Presidents relying on congressional inaction as evidence of implicit support for their war powers are not unique. Throughout the nation’s history, congressional response to such assertions have ranged from ambivalence, to implicit support by providing resources, to express support in the form of legislative action (joint resolutions either declaring war or authorizing the use of force). Prominent examples of ‘implied’ congressional support include the Korean conflict and the conflict in Southeast Asia after Congress repealed the Gulf of Tonkin Resolution (the authorization for the use of military force) in January, 1971. Indeed, in August 1973 a federal appeals court rejected the last judicial challenge to the legality of the war because of continuation of funding: a lawsuit brought by B-52 pilots and a congresswoman seeking to prohibit bombing missions against the Khmer Rouge in Cambodia.
This history has more than mere practical significance. In the same Steel Seizure case reference above, Justice Felix Frankfurter’s concurring opinion offered an important insight into the interpretive significance of practice:
It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. II.
Frankfurter ultimately rejected the Truman administration’s argument that prior practice indicated an inherent presidential authority to seize private industry to avert a national emergency resulting from a shortage of steel to support war production during the Korean conflict. His detailed historical analysis indicated that prior seizures had all been pursuant to statutory authority or during a period of formally declared war. However, his recognition that the historical manner by which the two political branches exercised shared authority over any given government power is indicative of how the Constitution was intended to function is especially significant in the realm of war powers. In short, how the President and Congress have over the history of the nation managed the division of authority over war power is informative.
Even a cursory review of Department of Justice opinions endorsing the exercise of war powers by Presidents Clinton, Obama, and Trump reflect the significance of Frankfurter’s approach to constitutional interpretation. These opinions emphasize the exercise of such power since the inception of the Republic. While some of these examples likely fell within the defensive or rescue categories, others do support the conclusion that Congress has historically tolerated assertions of presidential war powers. Or perhaps it is more accurate to view this history as supporting a more qualified conclusion: that Congress has been content to allow presidents to rely on implicit legislative support for warmaking initiatives, preserving for itself the authority to check that power when deemed necessary.
This qualification is important, as there is a substantial difference between a claim of unilateral presidential war power and an exercise of shared war power based on implied congressional support. Why? Because the latter characterization preserves for Congress the opportunity and authority to check presidential action. If the former characterization is taken to its logical end, a congressional effort to assert such authority would amount to an unconstitutional intrusion on unilateral presidential power. Thus, while the decision to initiate a combat operation may be properly characterized as unilateral, it is constitutionally overbroad to characterize the source of authority for such action as unilateral.
This more nuanced interpretation of presidential war power was reflected in the handful of court cases challenging the legality of the Vietnam conflict. These challenges were uniformly rejected. However, the outcomes were not based on the conclusion that the Constitution vests the President with unilateral warmaking authority. Instead, the common thread that ran through these cases was that the President was acting pursuant to implied congressional support; that Congress and the President were engaged in a cooperative endeavor. Again, this was important because of the implication: Congress retained the authority to stop the war. In other words, what the Constitution demands is evidence that the president was acting with congressional support, not a specific dictate of how Congress chose to manifest that support. As Judge Dooling noted in the 1970 case Orlando v. Laird:
It is passionately argued that none of the acts of the Congress which have furnished forth the sinew of war in levying taxes, appropriating the nation’s treasure and conscripting its manpower in order to continue the Vietnam conflict can amount to authorizing the combat activities because the Constitution contemplates express authorization taken without the coercions exerted by illicit seizures of the initiative by the presidency. But it is idle to suggest that the Congress is so little ingenious or so inappreciative of its powers, including the power of impeachment, that it cannot seize policy and action initiatives at will, and halt course of action from which it wishes the national power to be withdrawn. Political expediency may have counseled the Congress’s choice of the particular forms and modes by which it has united with the presidency in prosecuting the Vietnam combat activities, but the reality of the collaborative action of the executive and the legislative required by the Constitution has been present from the earliest stages.
This approach to interpreting the scope of presidential war power is also aligned with the highly influential methodology for assessing executive power articulated by Justice Jackson in his Steel Seizure concurrence. Having served as President Roosevelt’s Attorney General prior to his appointment to the Court, Jackson’s opinion reflected a pragmatic approach to such questions, recognizing that presidents often must exercise initiative in the absence of any clear congressional position. Yet Jackson also addressed the situation Truman faced in that case: an assertion of emergency power inconsistent with the will of Congress. In what is probably the most cited excerpt from the decision, Jackson wrote:
We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Jackson’s ‘three tiers’ are often cited as a justification for assertions of presidential powers in the absence of clear congressional opposition, especially in the realm of foreign affairs. And Jackson seems to have anticipated this, emphasizing how it was up to Congress to exercise its authority when it opposed presidential initiative:
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
All of this aligns with the war powers question. No, the President is not vested with unlimited inherent authority to wage war short of a formally declared war. Instead, the Constitution requires exactly what the Vietnam era court decisions indicated: evidence of inter-branch cooperation. However, as indicted by both Justice Jackson’s framework and Justice Frankfurter’s emphasis on historic practice, it is up to Congress to decide how it chooses to demonstrate that support, with the practical consequence that congressional inaction will inevitably be interpreted by presidents as implicit support or, at worst, acquiescence to their assertions of war power.
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Enter the War Powers Resolution
In 1973 Congress sought to alter this equation to prevent presidential reliance on anything less than express congressional authorization as a source of constitutional war power. This effort culminated in the War Powers Resolution, enacted when Congress overrode President Nixon’s veto. The conflict in Southeast Asia had come to an end, but Congress was obviously frustrated by how that end came about. What that experience indicated is that it is far more difficult to force a President to end a war than it is to deny a President authority to start a war. If a president is required to secure express congressional authorization for any initiation of hostilities, a simple majority by one house of Congress is sufficient to deny that authority. However, if a president is able to initiate hostilities Congress then seeks to terminate, it must enact law to force the President’s hand, which means a super-majority of both houses of Congress necessary to overcome a presidential veto.
To ‘rebalance’ the war powers scale, the WPR included four critical provisions. First, as noted earlier, it indicates that the President’s authority to introduce U.S. armed forces into situations of hostilities or imminent hostilities necessitates express statutory authorization (unless the President is responding to an emergency created by an attack on the United States, its territories, or its armed forces). Second, Congress could compel termination of any military action by concurrent resolution: a simple majority vote in both houses of Congress without the requirement for presentment to the President for approval or veto. Third, the law prohibited reliance on any law or treaty as evidence of congressional support for a war powers initiative other than express statutory authorization (an AUMF or a declaration of war).
Finally, in what can only be understood as a recognition that presidents may perceive authority to initiate hostilities on their own initiative, the WPR requires termination of any combat operation no later than 60 days after notification under the law was submitted or required, unless Congress has ‘ratified’ the operation with express statutory authorization (or granted a 30 day extension). Importantly, this so-called ‘60 day clock’ was not a grant of authority to presidents to conduct operations absent congressional authorization for 60 days. Indeed, the WPR specifically indicates 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 or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.” Instead, it was intended more as a fail-safe provision, imposing a clear demarcation for when a President acting without express statutory authorization must terminate an operation (ostensibly extending even to defensive justifications).
All of this pointed to a clear congressional objective: transform congressional inaction into conclusive proof of congressional opposition to assertions of presidential war powers. In essence, the Resolution transformed Justice Jackson’s three-tier model for assessing presidential power into a binary model: either Congress expressly authorizes hostilities, or the President is denied any authority to conduct them. Congressional silence – or even indications of implicit support like funding – equals opposition.
It is unsurprising why no President since 1973 has acknowledged the constitutionality of the WPR. Instead, while often reporting military deployments ‘consistent with’ the law, all administrations have maintained that the Resolution unconstitutionally infringed on the inherent authority vested in the President by Article II of the Constitution. It is also significant that no Congress since 1973 has shown much interest in trying to enforce the law. Presidential practice of initiating limited hostilities – like Operation Midnight Hammer – has continued with little to no congressional opposition and often with the tacit support of Congress. Furthermore, two combat operations were conducted without express statutory authority that continued beyond the 60 day ‘termination’ failsafe: President Clinton’s air campaign against Serbia and President Obama’s air campaign against Libya. In neither situation did Congress make any significant effort to enforce the WPR. Instead, there were ample indicators of implied consent to the operations through appropriations and the failure to demand termination. Interestingly, like the first Gulf War, Operation Allied Force – the air war against Serbia – generated a lawsuit by a group of legislators; and like that prior case, the challenge was dismissed due to the failure of Congress to vote to constrain the President.
This post-WPR history arguably bolsters presidential assertions that the law is unconstitutionally overbroad because it fails to acknowledge inherent presidential war power. However, starting with the Obama administration, a new theory of WPR ‘avoidance’ seemed to take hold in the Executive branch: that the law is inapplicable to military operations with very low risk of long-term escalation or the introduction of ground combat forces. According to the Department of Justice, so long as an operation is anticipated to fall below this threshold, Congress’ war authorization authority is simply not implicated. Accordingly, ordering such operations falls within the President’s inherent Article II authority to employ U.S. armed forces to advance important national security interests.
It is noteworthy that this theory seems far broader than the implied consent theory relied on by the courts that have adjudicated war powers-related challenges. It also seems disingenuous to assert that the WPR is not implicated until the anticipated scale and duration of a military operation crosses this amorphous threshold. Indeed, the primary motivation for the WPR was to prevent presidents from drawing the nation into a war by asserting a limited scope and duration of hostilities that gradually escalate into full scale war. The Congress that enacted the law did not want a future president to use the ‘limited scope and duration’ theory to draw the nation into another conflict like Vietnam, where the expectation of ‘short and brief’ proved to be wildly and sadly mistaken.
But ultimately, pre and post WPR practice does appear to support several important war powers propositions. First, the commander in chief clause has almost always been interpreted to imply a certain degree of presidential war powers beyond merely serving as the nation’s top general. Second, the aggregate of powers enumerated in Article II does indicate the President is vested with a certain degree of inherent authority to initiate and conduct combat operations. This authority certainly includes defensive or responsive war powers, almost certain authority to use military force to rescue or protect Americans abroad, and probably authority to conduct limited military operations to advance other vital national security interests. Third, in almost all situations there must be some indication of inter-branch cooperation in the exercise of national war powers. However, how that cooperation is manifested is a political matter to be addressed by Congress and the President; the central requirement of the WPR – that Congress must expressly authorize or approve of presidential war powers initiatives – is clearly at odds with this proposition and also at odds with war powers practice either before or after 1973.
Finally, and perhaps most importantly, Congress retains the authority to restrict, prohibit, or demand termination of presidential war powers initiatives. However, to do so Congress must affirmatively exercise its lawmaking authority. And, while the WPR purports to impose such a constraint, it seems that it is the action of any given Congress that will dictate if and how that Congress chooses to react to a presidential war powers initiative. Doing nothing but asserting the binding effect of the WPR has proven futile for two reasons. First, no President has (or is likely to) concede the ‘prohibition by inaction’ aspects of the law are constitutionally valid. Second, doctrines of judicial deferral to the political branches on issues such as how they must cooperate to advance national security policies render the likelihood of a court enforcing this aspect of the WPR by enjoining presidential action near impossible to envision.
All of this aligns with Justice Jackson’s three tier methodology for assessing the scope of presidential power in the realm of national security. Because the constitution disperses war powers between the two political branches, presidential assertions of truly unilateral war power is invalid. As a result, the President may not ignore the express – or perhaps even implied – will of Congress that military action not be initiated or continued. In contrast, when Congress indicates its support for such action – either through express statutory authorization or by implication – the President acts with the full force of both political branches behind him. Between those two ends of the spectrum, presidents will continue to treat congressional ambivalence in response to their assertions of war powers as tacit approval at best, and acquiescence to seizing the initiative at worst.
It seems the tools really do belong to the man who can use them, unless Congress decides to lock the toolbox.
Opinions expressed are those of the author and do not represent the views or opinions of The Cipher Brief.
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