Presidential War Power

Third Edition, Revised

Louis Fisher

• Publisher: University Press of Kansas
• Year: 2014
• ISBN:
  9780700619788
• Edition: 3
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

A classic and bestselling work by one of America's top Constitutional scholars, Presidential War Power garnered the lead review in the New York Times Book Review and raised essential issues that have only become more timely, relevant, and controversial in our post-9/11 era. In this third edition, Louis Fisher updates his arguments throughout, critiques the presidential actions of George W. Bush and Barack Obama, and challenges what he views as their dangerous expansion of executive power. Spanning the life of the Republic from the Revolutionary Era to the War on Terror, the new edition covers for the first time: nIndefinite detention of civilians and non-civilians without trial nPresident Obama's failed effort to close Guantánamo nNSA wiretapping and Fourth Amendment violations nPresidential decision-making relating to the wind-down of the wars in Iraq and Afghanistan nU.S. military operations against Libya in 2011 nContinued abuse of the state secrets privilege in national security court cases nSecret legal memos justifying the use of UAVs or drones for targeted killings overseas nExtended comparison of the expansion of executive power under George W. Bush and Barack Obama

1

THE CONSTITUTIONAL FRAMEWORK

When the framers assembled in Philadelphia in 1787 to draft the Constitution, existing models of government in Europe placed the war power securely in the hands of the monarch. The framers broke decisively with that tradition. Drawing on lessons learned at home in the American colonies and the Continental Congress, they deliberately transferred the power to initiate war from the executive to the legislature. The framers, aspiring to achieve the ideal of republican government, drafted a Constitution “that allowed only Congress to loose the military forces of the United States on the other nations.”¹ In their deliberations at the constitutional convention, the delegates held fast to the principle of collective judgment, shared power in foreign affairs, and “the cardinal tenet of republican ideology that the conjoined wisdom of many is superior to that of one.”²

The British Models

The English Parliament gained the power of the purse in the 1660s to control the king. The power to initiate war, however, remained a monarchical prerogative. John Locke’s Second Treatise on Civil Government (1690) spoke of three branches of government: legislative, executive, and “federative.” The last consisted of “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.” The federative power (what we call foreign policy today) was “always almost united” with the executive. Separating the executive and federative powers, Locke warned, would invite “disorder and ruin.”³

A similar model appeared in the Commentaries written by Sir William Blackstone, the great eighteenth-century jurist. He defined the king’s prerogative as “those rights and capacities which the king enjoys alone.”⁴ Some of the prerogatives he considered direct—those that are “rooted in and spring from the king’s political person,” including the right to send and receive ambassadors and the power to make war or peace.⁵ By vesting in the king the sole prerogative to make war, individuals entering society gave up the private right to make war: “It would, indeed, be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war.”⁶

Through the exercise of Blackstone’s prerogative the king could make “a treaty with a foreign state, which shall irrevocably bind the nation.”⁷ The king could issue letters of marque and reprisal (authorizing private citizens to undertake military actions). As Blackstone noted, that prerogative was “nearly related to, and plainly derived from, that other of making war.”⁸ Blackstone considered the king “the generalissimo, or the first in military command,” who had “the sole power of raising and regulating fleets and armies.”⁹ Whenever the king exercised his lawful prerogative he “is, and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him.”¹⁰

These models of executive power were well known to the framers. They knew that their forebears in England had committed to the executive the power to go to war. However, when they declared their independence from England, they vested all executive powers in the Continental Congress. They did not provide for a separate executive or a separate judiciary. The ninth article of the first national constitution, the Articles of Confederation, provided: “The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war.” The single exception to that principle lay in the sixth article, which allowed states to engage in war if invaded by enemies or when threatened with invasion by Indian tribes.

The authority of the Continental Congress extended to both “perfect” and “imperfect” wars—to wars that were formally declared by Congress and those that were merely authorized. As the Federal Court of Appeals noted in 1782, a perfect war “destroys the national peace and tranquillity, and lays the foundation of every possible act of hostility,” whereas an imperfect war “does not entirely destroy the public tranquillity, but interrupts it only in some particulars, as in the case of reprisals.”¹¹ The power over perfect and imperfect wars lay with the Continental Congress and would remain with the U.S. Congress. The Constitution drafted in 1787 and ratified the next year not only empowered Congress to declare war but authorized it to grant “Letters of Marque and Reprisal.” Congressional control over perfect and imperfect wars was recognized by the Supreme Court in litigation growing out of the Quasi-War with France from 1798 to 1800 (see Chapter 2).

The states gave their governors broad power over the military, but that power was directed to actions of self-defense. For example, the New Hampshire Constitution of 1784 provided that the president of the state “shall have full power” to lead and conduct the military forces

to encounter, expulse, repel, resist and pursue by force of arms, as well as by land, within and without the limits of the state; and also to kill[,] slay, destroy, if necessary, and conquer by all fitting ways, enterprize and means, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprize the destruction, invasion, detriment, or annoyance of the state; and to use and exercise over the army and navy, and over the militia in actual service, the law-martial in time of war, invasion, and also in rebellion, declared by the legislature to exist.¹²

Clearly these executive powers were directed at defensive operations in response to invasion from the outside or rebellion from the inside. Similar authority was given to the governor of Massachusetts in the Constitution of 1780.¹³ The value of having states engage in self-defense is reflected in the U.S. Constitution, which prohibits states from engaging in war “unless actually invaded, or in imminent Danger as will not admit of delay.”¹⁴

Opposing Monarchical Powers

During their learned and careful debates at the Philadelphia convention, the framers vested in Congress many of Locke’s federative powers and Blackstone’s royal prerogatives. Given the governmental systems operating worldwide in 1787, with power concentrated in the executive, the scope of power granted to Congress is extraordinarily progressive and democratic. The power to go to war was not left to solitary action by a single executive, but to collective decision making through parliamentary deliberations. Joseph Story, who served on the Supreme Court from 1811 to 1845, wrote about the essential republican principle of vesting in the representative branch the decision to go to war:

The power of declaring war is not only the highest sovereign prerogative; . . . it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nations. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead;. . . It should therefore be difficult in a republic to declare war; but not to make peace. . . . The co-operation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation.¹⁵

On numerous occasions the delegates to the constitutional convention emphasized that the power of peace and war associated with monarchy would not be given to the President. On June 1, 1787, Charles Pinckney said he was for “a vigorous Executive but was afraid the Executive powers of the existing Congress might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind, towit an elective one.”¹⁶ John Rutledge wanted the executive power placed in a single person, “tho’ he was not for giving him the power of war and peace.”¹⁷ Roger Sherman considered “the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect.”¹⁸ James Wilson also preferred a single executive but “did not c...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Note on Citations
• 1 The Constitutional Framework
• 2 Precedents from 1789 to 1900
• 3 America Steps Out: 1900–1945
• 4 The UN Charter and Korea
• 5 Taking Stock: 1951–1964
• 6 Vietnam and the War Powers Resolution
• 7 Military Initiatives from Ford to Bush I
• 8 Military Actions by Clinton
• 9 George W. Bush
• 10 Barack Obama
• 11 Covert Operations
• 12 Restoring Checks and Balances
• Appendices
• Suggested Readings
• Index of Cases
• Subject Index
• Back Cover