The American Constitution and the War Power

Today we review the allocation of War Power in the American Constitution.

  “… for rulers do not bear the sword for no reason.” Romans 13:4

Introduction

On Friday, in response to horrific use of chemical weapons, the President ordered the bombing of strategic targets against Syrian President Bashar Assad’s government.

Members of Congress, opposing the President’s exercise of this power, claim the president acted without legal authority.  The President asserts that Article II of the constitution provides the authority for his action.

The War Powers: Tension between Executive and Congressional Authority

In understanding the war power tension between the President and the Congress, a key issue emerges.  When can the President exercise power without a congressional grant of authority?

Article I & II War Power

Article II states: “The executive Power shall be vested in a President of the United States of America.”  Among the executive powers listed in Article II, “[t]he President shall be Commander in Chief of the armed forces. (See Article II, Clause 2)

In Article I though, among the “legislative powers herein granted” to Congress, is the power “to declare war” and “to raise and support armies.” (see Article I, Section 8)

The Framer’s Ambiguity

The framers’ separation of the war power between the legislative and executive continues to create uncertainty. It has done so through the ages. Alexander Hamilton noted that Article I refers to Congressional powers “herein granted.” He then observed Article II says Executive power “shall be vested in a President”. He concluded, therefore, that the framers (of which he was one) intended the President to hold inherent constitutional powers beyond those enumerated in Article I.  Since then, Presidents of all parties claim the inherent power of the presidency, in conjunction with the express authority as Commander-in-Chief. They assert this power authorizes a President to act, short of executing a war, without Congressional approval.  Another framer, James Madison, disagreed. At least until he served as our nation’s fourth President.

And so it goes, Congress and President disagree on the scope or their respective war powers.

Contemporary Developments – The War Powers Act

Ostensibly to resolve the uncertainty, Congress passed the War Powers Act (WPA) in 1973.  This law provides that, absent a national emergency due to an enemy attack, the President’s power to send forces into hostilities requires Congress to either declare war, or provide the President with specific statutory authorization

“The constitutional powers of the President as Commander-in-Chief to introduce … Armed Forces into hostilities, … are exercised only pursuant to

  • a declaration of war,
  • specific statutory authorization, or
  • a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Under the WPA, the President must notify Congress within 48 hours after introducing armed forces into hostilities. Additionally, forces cannot stay longer than sixty days without Congress either declaring war or authorizing use of military force.

Although Congress enacted the WPA to clarify the ambiguity created by the Framers’ separation of the War Powers, Presidents, strongly disagree as to its constitutionality.  Indeed, President Nixon vetoed the measure when Congress initially passed it. The WPA only became law when two-thirds of both houses of Congress voted to override the President’s veto.

Presidential Resistance to the WPA

Since the enactment of the WPA, Presidents continue to maintain that Article II provides authority for the President to send the military into hostilities without Congressional approval.

Congressional Authorization for Using Military Force

For its part, pursuant to the WPA, Congress enacted Authorization for the Use of Military Force (AUMFs), following the 911 attacks

In a 2001 AUMF, Congress authorized the President

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.

In a 2002 AUMF, Congress authorized the President to use the Armed Forces 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.

In a developing story, Congress this week will likely consider a proposal to replace these Iraq war era statutory authorizations.  The proposed 2018 AUMF would authorize the President to use the armed forces against ISIS, al-Qaida, the Taliban, and designated associate forces.

Let us now therefore, turn to the question of whether the President’s Order to Bomb Syrian targets was lawful.

The President’s Order to Bomb Syrian Targets – Was it Lawful?

The constitutional issue concerning the President’s order to bomb Syria is whether the president acted within the scope of his express and inherent Article II authority.  In other words, was the President’s action Friday authorized by:

  • his express Comander-in-Chief War Power and/or
  • his inherent authority as President of the United States?

The President says yes, implying it is all the legal authority required, notwithstanding the requirements of the War Powers Act and the Congressional AUMF.

Thus, the legal statutory issue here is whether the War Powers Act and the AUMF are constitutional, and if so, whether they provide additional Congressional authority for the President’s action. And if they do, whether the President acted within the scope of the AUMF authorization.

The day before the President ordered the military strike in Syria, the Speaker of the House, Paul Ryan, stated, “The existing AUMF gives [the President] the authority he needs to do what he may or may not do.” Like Hamilton and Madison, other members of Congress disagreed, contending the Congressional AUMF does not authorize strikes against Syrian government targets.

Presidential Courtesy or Compliance?

On Sunday, notably within 48 hours of the President’s strikes against the Syrian regime, the President notified Congress. The notification was more of a courtesy than compliance with the WPA, however.   This is because the President relied on his Article II Commander-in-Chief power, along with his inherent executive power, to justify his military strikes.  The President’s Congressional notification indicated his use of military force was “in the vital national security and foreign policy interests of the United States”.  The President further stated:

“I directed this action in order to degrade the Syrian military’s ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons, thereby promoting the stability of the region and averting a worsening of the region’s current humanitarian catastrophe….”

Conclusion

Clearly, the President was not relying on the AUMF to justify his military action Friday.  The President says his Article II Commander-in-Chief power, by itself, is enough to introduce American forces into hostilities. In the President’s view, this is especially so when combined with the inherent power of the presidency.  Through it all, the President continues to work with his Congressional counterparts. Will that be enough for those of both parties in Congress who disagree? Stay tuned.

To listen to Prof. Wagner’s interview about the War Power on the Steve Gruber Show , click here.