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Historical Practice and the “Intermediate” Position on War Powers

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Friday, April 22, 2011 at 8:54 AM

In my discussion earlier this week of some of the problems with relying on historical practice to support a constitutional claim of presidential authority to initiate military operations without congressional authorization, I focused on two broad positions in the war powers debate — a pro-Congress view and a pro-Executive view.  One might argue that there is an intermediate position in this debate, and that this position is easier to justify based on historical practice.  The intermediate position contends that, although the President may need congressional authorization to initiate “significant” or “real” wars, he need not obtain authorization for “lesser” or “limited” military operations.  There is a suggestion along these lines in the recent OLC opinion on the constitutionality of the operations in Libya.

It is true that some of the largest and most protracted military campaigns since World War II, such as in Vietnam, Iraq, and Afghanistan, were supported by congressional authorizations, and that some of the shorter and less significant campaigns were not.  There is, of course, the glaring exception of the Korean War, but perhaps that could be called the exception that proves the rule.  (I put aside here the claim that treaties or UN Security Council resolutions can substitute for congressional authorization, an argument that was made in the Korean War.  That claim is dubious, for reasons that Professor Michael Ramsey has recently articulated here.)

There are three major problems with the intermediate war powers argument.  First, as discussed in my last post, we have no strong evidence that the instances in which presidents have initiated the use of force without congressional authorization, whether in “limited” operations or not, have reflected any shared understanding between Congress and the President over the distribution of war authority.  Some operations, such as in Panama or Grenada, may reflect only an understanding of a presidential authority relating to self defense or the rescue or protection of U.S. citizens, an authority typically accepted by those advocating the pro-Congress view of war powers.  Other operations, such as the one in Kosovo, were conducted in the face of substantial congressional resistance, or eventually triggered constitutional complaints in Congress, as in Somalia.  In other instances, it is likely that the lack of congressional opposition was merely ad hoc and tactical and did not reflect any general constitutional concession.

Second, the line between “limited” and “real” wars is highly uncertain and thus subject to substantial manipulation by the President.  The duration and scope of military campaigns are almost always unpredictable and have a tendency to expand, as is becoming evident once again in Libya — for example, with the recent announcements that the United States is going to begin using armed drones there, and that other countries are placing military advisers on the ground.  Indeed, even some of the conflicts that advocates of the intermediate position concede to be “real” wars, such as in Vietnam and Afghanistan, have started as more limited military campaigns.

Finally, the clearest articulation of Congress’s view on the question of what constitutes a significant enough commitment of forces to require congressional authorization is contained in the War Powers Resolution of 1973, which was enacted in the wake of the Vietnam experience.  That Resolution refers to all situations involving the “introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the  circumstances.”  Operations like the ones in Kosovo and Libya clearly qualify under this standard.

As an academic, my interest in these issues extends beyond the legitimacy of particular military operations, and even beyond the war powers context.  The war powers debate, in my view, highlights the need for a deeper understanding of the role of historical practice in constitutional interpretation.  Among other things, it would be useful to consider the extent to which the proper conditions for practice-based claims are likely to exist for disputed issues of constitutional meaning, whether such claims rest on assumptions about the incentives of institutional actors that may not be valid, and the extent to which these claims reflect the limitations of judicial review as opposed to broader normative judgments about the importance of practice.