New Book on Historical Gloss and Foreign Affairs, Part IV

This is the fourth of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last post, I discussed the termination of U.S. treaties and executive agreements. In this post, I consider the distribution of authority between Congress and the President with respect to the use of military force.

The Constitution gives Congress the power to declare war, but many military conflicts do not involve formal declarations of war, and that was true even at the Founding. And the Constitution makes the President the Commander in Chief without defining the nature or scope of that role.

There has long been uncertainty about the interaction of these provisions. There have always been questions, for example, about the extent to which the President can take defensive military actions without seeking congressional approval and when (if ever) Congress needs to declare war in order to authorize hostilities.

As with the issue of treaty termination discussed in my last post, the history here is complicated.

It was always thought that presidents had some defensive war authority, but the bounds of it were unclear. Presidents authorized many low-level uses of force unilaterally throughout the nineteenth century, sometimes controversially. But the big wars against foreign powers—the Quasi-War against France at the end of the 1700s, the War of 1812 against Britain, the Mexican-American War in the 1840s, and the Spanish-American War at the end of the nineteenth century—were all authorized by Congress.

In 1900, President McKinley sent over 5000 troops to China as part of a multi-national force to stop the Boxer rebellion there. He had the troops already available in Asia as a result of the Spanish-American War and the U.S. occupation of the Philippines. Despite the large size of the operation, McKinley did not seek congressional approval.

Presidents in the early twentieth century often initiated small-scale uses of force in Latin America to address uprisings, protect U.S. business interests, and prevent European interventions—uses of force that they sometimes labeled as “police actions.”

The two World Wars were both authorized (and, indeed, officially declared) by Congress. But then in 1950 President Truman sent troops to Korea without getting congressional authorization, leading to a significant military conflict that lasted several years and resulted in many American casualties. The Truman administration also called this a “police action.”

A further complication after World War II is that, because of changes in international law, formal declarations of war have lost most of their functions, and in fact the United States has not issued such a declaration since World War II.

Since the Korean War, the largest and most protracted military campaigns have had some congressional authorization (although not formal declarations)—the Vietnam War, the two Iraq Wars, and the War in Afghanistan. But presidents have initiated many military operations without seeking congressional authorization, including long-term aerial campaigns, such as in Kosovo and Libya, and even some large-scale but short-lived dispatches of ground troops, such as to Panama and Grenada.

In an effort to regulate presidential uses of force, Congress in the 1970s passed the War Powers Resolution over President Nixon’s veto. The Resolution is a statute that is still in effect, and it says that a president must stop military operations within 60 days after introducing troops into hostilities unless the president obtains congressional authorization.

Presidents have generally found ways to work around the War Powers Resolution—for example, by concluding operations before 60 days or by claiming that once Congress provides supplemental appropriations for an operation, as it usually does, that counts as sufficient authorization. In the 2011 Libya operation, the Obama administration claimed, somewhat preposterously, that it was not engaged in hostilities for purposes of the Resolution even though it was involved in a bombing campaign.

Not surprisingly, executive branch lawyers put a lot of weight on the modern historical practice of presidential uses of force. OLC claims that historical gloss at least supports a presidential power to wage relatively small campaigns that do not amount in “nature, scope, and duration” to a war. And courts have not shown any inclination to weigh in on this topic, invoking limitations relating to standing, institutional ripeness, and the political question doctrine.

The book suggests that Congress has substantial authority—confirmed by historical gloss—to place restrictions on presidential military action if it wishes to do so. The main barrier here has been one of institutional will: Congress often seems content to stand on the sidelines and see how presidentially-initiated military actions develop, and either applaud or criticize them accordingly.

There have often been calls for tightening the War Powers Resolution, but so far Congress has failed to do so. There are also some very broad authorizations of force currently on the books (such as the one passed shortly after the 9/11 attacks) that Congress has unfortunately not updated or limited.

I conclude in Chapter 6 of the book that historical practice appears to support the executive branch’s claim that limited military engagements that are not expected to be protracted in duration or involve the commitment of substantial ground troops need not be authorized by Congress. I recognize that this conclusion may seem unsatisfactory to those who think we need greater checks on presidential military actions. As I note in the book:

Smaller-scale engagements have the potential to develop into larger ones, and, in any event, they can have broader foreign relations repercussions for the United States. Moreover, the line between smaller and larger engagements is far from self-evident (although that is true of many distinctions in the law). In light of what is now longstanding practice, however, as well as the understandable reluctance of courts to wade into these issues, more robust checks on the President will likely need to come from Congress.

Whatever one’s view about this particular conclusion, I also emphasize in the book the need for a broader and more realistic perspective on the topic:

As illustrated throughout this chapter, the President’s other foreign relations powers mean that a requirement of congressional authorization for offensive hostilities may be thin protection against president-initiated wars. Imagine, for example, if a president announced that they were recognizing Taiwan as the government of China. Such an action easily could produce a war, either forcing Congress’s hand or triggering the President’s acknowledged defensive war powers. Yet there seems to be general acceptance that such an action would be constitutional. Or imagine, for example, if a president stationed a large number of U.S. troops in a country facing a potential invasion; if the invasion occurred, the President’s defensive war powers would be engaged by the attack on U.S. troops. As these and many other scenarios indicate, there is a certain artificiality to modern war powers scholarship, which has tended to focus almost exclusively on the formal legal requirements for presidential uses of force.

Finally, I contrast my account with other leading accounts of the evolution of war powers authority:

The historical account in this chapter is contrary to the one that is often presented by scholars who are supportive of congressional control over war making. These scholars suggest that the post-World War II practice is radically different from what came before. According to this narrative, Truman’s commitment of troops to the Korean War in 1950 without congressional authorization marks a sharp break from earlier understandings of presidential war powers. As we have seen, however, this account gets it wrong in both historical directions. Looking backwards, the expansionist dynamics of presidential war authority can be traced to events long before the Korean War, and defenders of Truman’s actions in Korea relied on the past practice. Looking forward after 1950, the Korean War seems unusual, not the beginning of a transformation in U.S. practice. If there was a turning point in presidential war powers, it was more likely the period following the Spanish-American War, a period that began fifty years before the war in Korea. Even the exercises of war authority in that period, however, built on prior customary practices and understandings. The model of constitutional change here, as in the other examples covered in this book, is much more one of accretion rather than one centered on a particular constitutional moment.

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Source: https://reason.com/volokh/2024/10/10/new-book-on-historical-gloss-and-foreign-affairs-part-iv/