The war power

Harvard Journal of Law and Public Policy

Volumn 33, Issue 1, 2010, Pages 113-137

  Paulsen, Michael Stokes ^a  

^a UNIVERSITY OF ST THOMAS   (United States)

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EID: 78049285339     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (113)

1. For a short textual and structural defense of this proposition, see Michael Stokes Paulsen, Youngstown Goes to War, 19 CONST. COMMENT. 215, 238-39 (2002). For outstanding, full-length presentations of the textual and historical basis for this position,
2. see Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War", 93 CORNELL L. REV. 45 (2007) and
3. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543 (2002). For fine expositions of the opposing view, favoring unilateral executive war-making power,
4. see Robert J. Delahunty & John Yoo, Making War, 93 CORNELL L. REV. 123 (2007),
5. Robert J. Delahunty & John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations That Harbor or Support Them, 25 HARV. J.L. & PUB. POL'Y 487 (2002),
6. and John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996).
7. For a brief exposition of this proposition and an important historical illustration, see Michael Stokes Paulsen, The Emancipation Proclamation and the Commander in Chief Power, 40 GA. L. REV. 807 (2006) (arguing that the Commander-in-Chief
8. Clause vests in the President all decisions with respect to the actions of U.S. forces in time of authorized war-including all matters of military strategy and tactics; general and specific military objectives; rules of engagement; means and methods to be employed; when and under what circumstances hostilities are to be terminated; and all matters of detention, interrogation, and military punishment of captured enemy combatants-and noting that this broad conception of the Commander-in-Chief Clause is an essential ingredient in the lawfulness of President Abraham Lincoln's Emancipation Proclamation).
9. See also Michael Stokes Paulsen, The Constitutional Power To Interpret International Law, 118 YALE L.J. 1762, 1812-16, 1835-54 (2009) (developing these propositions and applying them to many contemporary issues). For the most plausible textual and historical argument that Congress rightfully may shackle the executive's Commander-in-Chief Clause powers through its peripheral textual powers concerning regulation of the military,
10. see Saikrishna B. Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299 (2008). Although I find Professor Prakash's evidence and argument interesting and instructive, I ultimately find it unpersuasive.
11. See Paulsen, The Constitutional Power to Interpret International Law, supra, at 1852 n.209.
12. This proposition has been a theme of my other scholarship. E.g., Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706 (2003);
13. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994);
14. see also Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 NOTRE DAME L. REV. 1227 (2008). On the several branches' independent powers with respect to the interpretation and application of international law,
15. see Paulsen, The Constitutional Power to Interpret International Law, supra note 2.
16. U.S. CONST, art. I, §8, cl. 11. On the traditional background English understanding,
17. see Ramsey, supra note 1, at 1561-63 (citing sources).
18. See also Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 265-72 (2001).
19. The meaning of the Constitution is the original public meaning that the text's words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted. Those exercising governmental authority under the Constitution are duty-bound to apply the Constitution in accordance with such an understanding. For a straightforward internal, textual justification for this interpretive methodology and its binding character, see Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113 (2003).
20. See Prakash, supra note 1;
21. Ramsey, supra note 1. Professor Prakash and, separately, Professor Ramsey, marshal the evidence convincingly that this is the original linguistic meaning, in historical context, of the phrase "to declare War," as used in the Article I, Section 8 of the Constitution.
22. That is the incorrect position of Professors Delahunty and Yoo. See Delahunty & Yoo, Making War, supra note 1; Yoo, supra note 1.
23. U.S. CONST, art. I, §10.
24. Much of this evidence is well set forth in Ramsey, supra note 1, at 1603-09.
25. On the propriety of resort to the "secret drafting history," see Kesavan & Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, supra note 5.
26. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318-19 (Max Farrand ed., Yale Univ. Press 1966).
27. See id. at 318-20.
28. This is the recorded explanation for the making of the motion in the first place, and part of Madison's description of its intended consequence. Id. at 318 ("Mr. Madison and Mr. Gerry moved to insert 'declare' striking out 'make' war; leaving to the Executive the power to repel sudden attacks.").
29. Id. at 319 n.* ("On the remark by Mr. King that 'make' war might be understood to 'conduct' it which was an Executive function, Mr. Elseworth gave up his objection, and the vote of [Connecticut] was changed to-ay.").
30. There are also important line-drawing questions as to what constitutes "war" within the meaning of the clause and whether there might exist a residual executive power over non-war military actions. I leave these for another day.
31. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1231 (1994). I hope to develop these historical observations-and others-in future work. For now, it is sufficient to note that Kosovo and Korea are prominent examples of sustained, open, armed conflict against an enemy force or power, of an intensity and duration that must be conceded to constitute "war," but where the war was not authorized by Congress's declaration of war or equivalent statutory authorization.
32. This is not quite true. There are other principled constitutional interpreters out there. I am sure there are.
33. By this reasoning, it follows (as I have argued elsewhere) that stare decisis, in the sense of deliberate adherence to a wrong decision made in the past, is unconstitutional. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of'Roe and Casey?, 109 YALE L.J. 1535 (2000);
34. Michael Stokes Paulsen, Can a Constitutional Amendment Overrule a Supreme Court Decision?, 24 CONST. COMMENT. 285, 289 (2007);
35. Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 ALBANY L. REV. 671, 678-81 (1995);
36. Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. L. REV. 857, 913 (2009);
37. Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289 (2005);
38. Paulsen, The Irrepressible Myth of Marbury, supra note 3, at 2731-34.
39. Authorization for Use of Military Force Against September 11 Terrorists (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. §1541 (2006)). Some of the discussion that follows is based on my earlier work in Paulsen, supra note 1, at 250-57.
40. AUMF §2,115 Stat, at 224.
41. Some of the discussion that follows is based on my earlier work. See Paulsen, supra note 1, at 250-57.
42. AUMF § 2, 115 Stat, at 224 (emphasis added).
43. War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§1541-1548 (2006)). On the War Powers Resolution, see Paulsen, supra note 1, at 242-50.
44. H.R.J. Res. 64, 107th Cong. (2001) (enacted);
45. see also Paulsen, supra note 1, at 252 n. 106.
46. S.J. Res. 23, 107th Cong. (2001) (enacted).
47. See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (codified at 50 U.S.C. §1541 (2006)).
48. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).
49. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10 U.S.C);
50. see also Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1847-51.
51. Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
52. U.S. CONST, art. II, §1, cl. 1.
53. U.S. CONST, art. I, §8.
54. U.S. CONST, art. I, §8, cl. 11.
55. U.S. CONST, art. I, §8, cl. 12.
56. See, e.g., 1 WILLIAM BLACKSTONE, COMMENTARIES *249-51.
57. U.S. CONST, art. II, §2, cl. 2.
58. 542 U.S. 507, 536 (2004).
59. Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (codified at 50 U.S.C. § 1541 (2006)).
60. Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1840. Contra Prakash, supra note 2, at 347 (stating that Congress's war powers are more analogous to a dimmer switch than an on-off switch).
61. I have developed and supported the propositions in this paragraph and the several that follow at greater length elsewhere. See Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1839-42;
62. Paulsen, The Emancipation Proclamation and the Commander in Chief Power, supra note 2, at 814, 827-31.
63. See Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1839-41;
64. Paulsen, The Emancipation Proclamation and the Commander in Chief Power, supra note 2, at 827-31.
65. See Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1840.
66. See generally Prakash, supra note 2.
67. U.S. CONST, art. I, §8, els. 10, 11, 14.
68. Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1840-41. Congress also possesses power under the Necessary and Proper Clause, U.S. CONST, art. I, §8, cl. 18, to legislate in support of the President's exercise of his war-executing power under the Commander-in-Chief Clause, by passing laws it judges "necessary and proper for carrying into execution" the President's power. The power is a sweeping one that enlarges the overall scope of national government power,
69. see Michael Stokes Paulsen, A Government of Adequate Powers, 31 HARV. J.L. & PUB. POL'Y 991,1001 (2008), but it is not properly a power that may be used to subtract from the President's constitutional powers under the Commanderin-Chief Clause. Although Congress of course may use the auspices of the Necessary and Proper Clause to press its views of the limits of presidential war power, the Clause is not a power to dis-empower another branch, but a power to grant other branches powers ancillary to their constitutional powers.
70. See Lichter v. United States, 334 U.S. 742, 778-79 (1948).
71. I hope to develop this theme in a subsequent essay provisionally entitled The Power to Declare Peace (unpublished partial manuscript on file with author).
72. On the legal force of executive agreements, see Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1787-99. My preliminary view is that a war that is "ended" as a practical matter by a presidential executive agreement with the hostile force or power-an armistice or truce-constitutionally may be resumed by the President (or a successor President), without renewed legislative authorization, when, in the President's judgment, the executive agreement is no longer in the United States's interest. A peace treaty that complies with the Constitution's treaty-making requirements has the status of supreme U.S. law, under Article VI of the Constitution. It is difficult to imagine circumstances in which such a treaty would not be understood as legally terminating Congress's statutory declaration or equivalent authorization of war (no matter one's view as to whether the "last-in-time" rule with respect to the relative legal force of statutes and treaties is correct, see id. at 1773 n.28).
73. Again, I expect to develop and refine this point in a subsequent essay. Paulsen, The Power to Declare Peace, supra note 46.
74. The Tonkin Gulf Resolution, Pub. L. No. 88-408, 78 Stat. 384 (1964), was, in my opinion the legal equivalent of a congressional authorization of war, albeit a fairly imprecise, vague, and general delegation to the President. In 1971, Congress repealed the Tonkin Gulf Resolution, in a one-sentence amendment to an unrelated bill.
75. See Act of Jan. 12, 1971, §12, Pub. L. No. 91-672, 84 Stat. 2053, 2055 (1971). In the case of the Vietnam War, the repeal of the Tonkin Gulf Resolution may not have had the effect of repealing all congressionally granted authority. See JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 32-34 (1993).
76. See J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 99-108 (1991) (discussing several versions of this propostition).
77. In 1973, Congress passed, and President Nixon signed, the Joint Resolution Making continuing appropriations for fiscal year 1974, §108, Pub. L. No. 93-52, 87 Stat. 130, 134 (1973) ("Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.").
78. See Delahunty & Yoo, Making War, supra note 1, at 127-29;
79. Delahunty & Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them, supra note 1, at 491-93;
80. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, supra note 1, at 174, 176-82.
81. James Madison of course saw all this clearly, as a matter of general principle. See THE FEDERALIST NO. 49, at 314 (James Madison) (Clinton Rossiter ed., 1961) ("The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers[.]");
82. THE FEDERALIST NO. 51 (James Madison), supra, at 320-22 ("To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down in the constitution? The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.... In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own[.]... [T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.").
83. Of course, with respect to Congress's exercise of any of its legislative powers, the President retains the qualified veto set forth in Article I, Section 7. Congress's exercise of its legislative powers is thus internally checked. Nonetheless, the veto power is not a very effective power with which to compel Congress to do anything. (A shield is not much of a sword. But it might be used somewhat as one.) To the extent congressional inaction is sufficient to accomplish certain ends-inaction yields nonfunding-the veto is a very weak check on Congress's power silently to declare peace.
84. GHOSTBUSTERS (Columbia 1984).
85. The cases of craven deference to the executive branch, referred to in the text, are Dames & Moore v. Regan, 453 U.S. 654 (1981);
86. Korematsu v. United States, 323 U.S. 214 (1944);
87. Hirabayashi v. United States, 320 U.S. 81 (1943). For recent representative judicial decisions holding war-powers questions nonjusticiable,
88. see Campbell v. Clinton, 203 F.3d 19, 20-24 (D.C. Cir. 2000) (finding lack of congressional standing to challenge unilateral presidential war-making);
89. Kucinich v. Bush, 236 F. Supp. 2d 1, 3-11 (D.D.C. 2002) (finding lack of congressional standing to challenge presidential conduct of war);
90. Dellums v. Bush, 752 F. Supp. 1141, 1144-46, 1149-52 (D.D.C. 1990) (finding challenge to threatened unilateral presidential war-making unripe (but not otherwise a nonjusticiable "political question"));
91. Ange v. Bush, 752 F. Supp. 509, 510 (D.D.C. 1990) (finding challenge to presidential troop deployment a nonjusticiable political question). I have previously criticized the courts' use of the so-called "political question" doctrine to avoid decisions in matters of war powers.
92. See Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1816-22;
93. Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257, 1293-96 (2004).
94. See THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 52, at 469.
95. 542 U.S. 507 (2004).
96. 542 U.S. 466 (2004).
97. 548 U.S. 557 (2006).
98. 128 S. Ct. 2229 (2008).
99. A full defense of this proposition would constitute an article in itself. I have made many of those substantive points in other writings, and discussed and embraced objections made by others. See Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1834-42. My central point here, however, is the one to which I proceed in the next paragraph: Assuming the existence of a wrongly decided, harmful-to-national-security judicial decision-certainly not an unthinkable proposition, given the Court's recent decisions in these cases-what does the idea of separation of powers have to say about the executive's obligation to follow such decisions?
100. President Moves 14 Held in Secret to Guantanamo, N.Y. TIMES, Sept. 7, 2006, http://www.nytimes.com/2006/09/07/us/07detain.html.
101. Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10 U.S.C).
102. For discussion and elaboration of this point, see Paulsen, The Constitutional Power to Interpret International Law, supra note 2, at 1835-38.
103. 128 S. Ct. 2229, 2262-72 (2008) (invalidating a provision of the MCA as contrary to the Writ Suspension Clause of Article I, Section 9).
104. I have advanced versions of this proposition in other articles. See Paulsen, The Irrepressible Myth of Marbury, supra note 3;
105. Paulsen, Lincoln and Judicial Authority, supra note 3;
106. Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 CARDOZO L. REV. 81 (1993);
107. Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, supra note 3;
108. Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-five Years, 83 MINN. L. REV. 1337, 1345-68 (1999);
109. see also Paulsen, The Constitution of Necessity, supra note 55, at 1260-63.
110. Paulsen, The Irrepressible Myth of Marbury, supra note 3, at 2724-38.
111. See generally Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, supra note 3.
112. Paulsen, Lincoln and Judicial Authority, supra note 3, at 1277-1301;
113. Paulsen, The Constitution of Necessity, supra note 55, at 1264-67.