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Peter Margulies Reports on AALS III

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Thursday, January 12, 2012 at 5:58 PM

Peter Margulies’s reporting on AALS panels continues with this dispatch:

Libya and Presidential Power

Presidential war powers were debated at the AALS conference that spurred my recent posts on detention and military commissions.  The Libyan intervention elicited disagreement peeking out from surface consensus among Georgetown’s Marty Lederman (OLC 2009-10), Duke’s Curt Bradley, and Columbia’s Trevor Morrison (WH Legal Counsel’s office 2009-10) and Matt Waxman (at NSC, DoD, and State in the Bush administration with Lawfare’s John Bellinger), expertly moderated by Harvard’s Vicki Jackson.

Marty Lederman outlined what he described as an underappreciated middle ground, or “third way,” that the Clinton and Obama Administrations have taken on the President’s unilateral constitutional authority to engage U.S. forces in military conflicts. The “first way” according to Marty: critics of executive war powers like Louis Fisher and the late John Hart Ely who demand congressional authorization and perhaps even a formal Declaration of War, with only limited exceptions, such as responding to an attack or the rescue of U.S. citizens.  The “second way”: champions of unfettered presidential power, including John Yoo, for whom anything goes, including full-scale, prolonged war on the President’s own say-so, leaving Congress to register opposition through its power of the purse.  Marty suggested that the Clinton/Obama view may stem from the perception that the first way provides too little flexibility for the President on smaller-scale military engagements (particularly in an era when the Congress is reluctant to authorize – or to prohibit – humanitarian interventions), while the second path leads to executive overreaching and imbalances in the separation of powers.

Marty suggested that the Clinton and Obama Administrations have been seeking an alternative to these problematic approaches that accounts for all post-WW II executive practice with the (dramatic) exception of the Korean War.  Marty cited Walter Dellinger’s OLC memos from the Clinton administration and Caroline Krass’s memo on initiation of the Libyan intervention, which calibrated the degree of presidential unilateralism permitted to the duration, intensity, and scope of the military intervention.  In essence, those memos suggest (without articulating and hard and fast rules) that the President alone can authorize brief and relatively costless (in blood and treasure) interventions, while bigger, more protracted conflicts require congressional authorization.  

Marty pointed out that presidents have sought congressional authorization for every conflict of significant duration, intensity, and scope within the past seventy-five years, with one exception – Korea.  Smaller engagements since 1986, however (e.g., Somalia, Haiti, Panama, Bosnia, Libya), did not (on the Dellinger/Krass view) require such legislative authorization—not, at least, so long as they lasted fewer than the 60 days identified in the War Powers Resolution.  Marty commended his third way to the audience as an important and possibly useful, if not perfect, match of flexibility and accountability.  He further suggested that in the future, the executive branch should more precisely articulate the nexus between the factors it relies upon and the normative and pragmatic concerns that led the founding generation to insist upon legislative approval for what Dellinger and Krass have called “war in the constitutional sense.”

Curt Bradley and Matt Waxman, while not expressly endorsing Marty’s third way, traced its genesis to the course of dealing between Congress and the executive that has evolved since the Framing.  Consulting only the Framers’ intent, Curt contended, would make the Dellinger/Krass approach difficult to sustain, since the Framers demonstrated a decisive preference for congressional authorization, if not for a formal Declaration of War.  However, as Curt noted, even the tail end of the Founding Era offers counter-examples from practice.  Matt reminded the audience that every U.S. intervention in Libya, from Jefferson through Reagan to Obama, proceeded without clear congressional authorization – Jefferson, for example, paid rhetorical obeisance to the need for congressional approval and eventually sought and received it, but made plans to move without it.

Curt and Matt agreed that looking to evolving practice from the end of the Founding Era has functional advantages.  As Curt observed, the President can deal with collective action problems far more efficiently than the multi-member Congress.  Over time, Congress has recognized this functional advantage of the presidency, leading to the pattern of congressional acquiescence that Justice Frankfurter identified in his Youngstown concurrence and that Justice Jackson included in the second category (congressional silence) of presidential power discussed in his opinion.  The Supreme Court has developed this concept further since Youngstown; the most frequently cited case is Dames & Moore v. Regan, in which the Court, in an opinion by Justice Rehnquist, upheld the President’s settlement of claims with Iran as part of the deal that freed U.S. hostages in 1981.  As Matt aptly put it, historical practice has demonstrated the wisdom of “play in the joints” when it comes to war powers, as the United States constitutional system has had to navigate radical geopolitical adjustments.  That said, Matt also argued that the Krass opinion’s “national interest” criterion for assessing possible interventions was too malleable, and doesn’t actually provide meaningful constraints on presidential action.

Trevor Morrison agreed that flexibility was important, but also stressed that intra-executive branch courses of dealing have a precedential impact that presidents discount at their peril.  For example, Trevor noted, OLC opinions should be regarded as having a stare decisis effect, at least within the executive branch.  Rather like the point about federal courts made by Trevor’s Columbia colleague Sarah Cleveland in the federal courts panel, Trevor’s claim here was that treating OLC opinions as precedents yields two salient benefits.  First, it disciplines the executive branch, winnowing out unduly aggressive moves while they’re still on the drawing board.  Second, it legitimates moves that receive OLC approval.

Like Jack Goldsmith, whose new book on the accountable executive is forthcoming and who as OLC head during a key time in the Bush administration withdrew opinions by John Yoo that Goldsmith regarded as unsupportably aggressive, Trevor viewed these effects as salutary.  Trevor acknowledged that the President has the power to overrule OLC when circumstances justify that step.  However, he noted, presidents have rarely done so, because the discipline OLC provides is a net benefit to the executive.  (I’ve explored this theme in a forthcoming paper, Reforming Lawyers into Irrelevance?: Reconciling Crisis and Constraint at the Office of Legal Counsel,  which argues that Bruce Ackerman’s proposal to transform OLC into a “Supreme Executive Tribunal” – reviewed by Trevor here – would yield the worst of both worlds – the rigidity of courts, plus the strategic behavior of executive agencies.)

Trevor expressed some concern that the current administration might have slighted the value of OLC precedent when it decided to continue the Libya intervention without congressional approval after expiration of the 60 day period permitted under the War Powers Resolution (WPR).  Conceding that press reports probably did not provide complete information and thus that he did not know the full story, Trevor noted that those reports indicate that OLC, having approved the initial intervention in Libya, had opined that continuing the intervention after the WPR deadline did not comply with the statute.  With OLC in opposition, the President turned to others, including State Department Legal Advisor (and former Yale dean) Harold Koh, who championed the argument that the United States’ relatively low-level involvement in NATO efforts did not constitute “hostilities” under the WPR and therefore was not subject to the 60-day deadline.  Others, including legislators, have criticized the “hostilities” argument, asserting that the reported use of drones for both reconnaissance and anti-personnel applications placed the United States above the “hostilities” threshold.

Trevor noted that this chain of events, as reflected in media reports, had both virtues and risks for a balanced account of national security legal advice.  Trevor agreed that Legal Adviser Koh’s input was entirely legitimate on foreign affairs issues like the intervention, which are central to State’s portfolio.  He also did not disagree with the Legal Adviser’s factual contention that American forces were not at risk, since we had sent no ground troops to Libya and our air assets were used in a way that virtually eliminated the prospect of casualties.  Trevor took no position on the underlying legal rationale.  Beyond the substance of the WPR question, however, Trevor worried that the reported failure to follow OLC raised the question of whether OLC’s interpretation had been treated as merely “one item on the menu” of legal options, rather than an interpretation that was presumptively authoritative.

The panelists also differed in the their view of the Obama administration’s WPR “hostilities” argument.  In response to questions from New York Law School’s Steve Ellmann and Stanford’s Michael McConnell, Trevor suggested that it was difficult to ascertain the political costs and other consequences of statutory versus constitutional arguments about war powers.  Only empirical examination could determine whether relevant constituencies viewed a weak argument that the President was complying with the WPR (and therefore was in Justice Jackson’s “Box 2” where Congress had neither prohibited nor expressly authorized executive action) as tantamount to an argument that the President was relying on his own Article II power in Jackson’s Box 3, where as Marty and David Barron have noted the President’s power is at its “lowest ebb.”

In contrast, Marty argued that, whatever the merits of the argument, the administration deserved credit for making the “hostilities” argument in public and before Congress through Legal Adviser Koh’s testimony.  This approach permitted scholars, legislators, and citizens to weigh in – and gave Congress an opportunity to reject that reading of the statute, as Senator Lugar’s (ignored) statutory proposal would have done.  The administration’s stance effectively  left the question in Congress’s hands, although concededly it might have been difficult for Congress to enact a further constraining amendment.  Marty asserted that this course was wiser than arguing that the WPR deadline was unconstitutional, although some commentators see a solid case for the latter proposition.

Moreover, Marty asserted in response to a question from me, one should not assume that the administration had declined to ascertain whether Congress would have approved the  operation in March at the start of the Libya campaign.  Marty suggested that it was just as likely  that experienced legislative head-counters told the President that the votes were simply not there in the House.  Perhaps unfairly, I countered that presidents such as FDR had not always deferred to the head-counters, but had sought to change the political baseline.  The World War II destroyer deal with Britain, which paved the way for the Lend-Lease law, was one example of such baseline-changing leadership, I maintained stubbornly.  Curt expressed some sympathy for this view, agreeing that Senator John McCain’s advocacy in the Senate might have eventually swayed reluctant members in the House.    Matt observed that requiring congressional authorization in every case would have still likely given us Vietnam and the Iraq war, while barring the Kosovo and Libya campaigns.

Prodded gently by moderator Jackson, the panelists also clarified the role of United Nations Security Council approval in war powers disputes.  Curt and Trevor asserted that Security Council approval contributed little from the standpoint of democratic legitimacy.  U.S. voters have no control over Security Council members apart from the U.S., and, as Matt noted, the President has tremendous discretion because of his foreign relations powers and U.S. diplomatic prowess to shape Security Council decisions.  However, as Professor Jackson pointed out, Security Council approval is an index of an initiative’s prudence.  The threat of veto from the other permanent members of the Council ensures that any proposed resolution must be carefully vetted and framed.  Matt pointed out that OLC opinions, including Caroline Krass’s opinion on Libya and earlier OLC opinions during recent Republican administrations, relied in part on United Nations approval.  Marty seconded this view, commenting that Security Council approval at least ensures that the U.S. is not acting like a rogue state or international outlaw – thereby at least partially accounting for some of the concerns that animated the Framers.  Approval by regional organizations such as NATO or the Organization of American States (which supported the Kennedy administration’s blockade during the Cuban Missile Crisis) may serve a comparable purpose, although Marty did not extend his argument to this realm.

In sum, the panel was an exceptionally lucid discussion of the hard questions in war powers disputes.  Easy choices are rare in this challenging environment, as the panelists made clear.  The scholarly creativity of each participant was apparent.  Just as importantly, so was the lawyerly craft that each has honed in public service.

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