War Powers

Krauthammer on War Powers

By Jack Goldsmith
Friday, June 24, 2011, 1:04 PM

Charles Krauthammer today argues for “a new constitutional understanding, mutually agreed to by both political branches, that translates the war-declaration power into a more modern equivalent.”  I usually like Krauthammer’s columns but I am not sure this one makes much sense.

The new understanding that Krauthammer proposes has three parts.

First, we should “formalize the recent tradition of resolutions (Gulf, Afghanistan, Iraq) authorizing the initiation of war, recognizing them as the functional equivalent of a declaration of war.”  Krauthammer is right that declarations of war are “archaic and obsolete.”  They became obsolete after World War II with the establishment of the U.N. system.  But he is wrong to think that there is something new or constitutionally suspect about Congress authorizing war without a declaration.  To the contrary, Congress long used authorizations rather than declarations to approve war and trigger the Commander in Chief’s war powers.  In fact, in all five of the declared wars in U.S. history, Congress not only declared war but also additionally and separately authorized the Commander in Chief to use force against the enemy.  (See pp. 2062-64 of this article).  Declarations of war once served an international law function that is now obsolete.  But they have never served the function of providing congressional authorization for the President to use military force.  Instead, congressional authorizations of the type used in the AUMF and the Iraq wars have always served that function. There is thus no need for a new constitutional understanding.  What Krauthammer has in mind here is the old constitutional understanding applied in a world in which war declarations are things of the past.

The second part of Krauthammer’s proposal is to “establish special procedures for operations requiring immediacy and surprise, for example, notification of the House speaker, Senate majority leader and their opposition counterparts, in secret if necessary.”  That doesn’t sound too different from the reporting requirements under the WPR.  I’m not sure what it adds.

The third part of the proposal is to “require retroactive authorization by the full Congress within an agreed period — but without any further congressional involvement (contra the War Powers Resolution).”  Retroactive authorization within an agreed period is precisely what the WPR requires and what many critics think is unconstitutional.  Krauthammer seems not to object to this core WPR idea (though he does skip over all the hard problems, obvious today, about how to define when the President needs congressional authorization).  He rather objects to “further congressional involvement (contra the War Powers Resolution)” beyond retroactive authorization.  He explains: "The Constitution’s original grant of power to Congress was for a one-time authorization, with no further congressional constraint on executive war-making except, of course, through the power of the purse." But it is not true that the Constitution limits Congress to authorizing war without further constraint on executive war-making.  Since the 1790s and throughout American history Congress has in many wars placed conditions on the use of military resources, on the methods of force and the scope of authorized targets, and on the timing and other procedural restrictions on the use of force.  (See here, pp. 2072-2078, for a summary; for many other examples of congressional restrictions on the Commander in Chief during war, see this piece.)  There is a genuine and hard question in some cases whether Congress goes too far and impinges on the Commander in Chief's exclusive functions.  But in general Congress has since the beginning and with no controversy imposed various restrictions on the president during war.

Finally, Krauthammer argues: “No president should accept — and no president from Nixon on has accepted — the constitutionality of the WPR . . . .”  I don’t know about the “should.”  But the claim that no President has accepted the WPR’s constitutionality is inaccurate.  Nixon argued in his veto message that the 60-day termination provision, Section 5(b), was unconstitutional.  But the Office of Legal Counsel said in 1980: “We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by [Section 5(b)]of the Resolution.”  I know of no executive branch analysis of Section 5(b) since Nixon that contradicts this conclusion, and the Obama administration recently reaffirmed the 1980 OLC opinion.  Maybe Krauthammer is talking about the constitutionality of the purported Section 2(c) limitations on the circumstances in which the President can use force without congressional authorizations.  But Nixon did not question the constitutionality of that provision, probably because the legislative history to the WPR makes clear that it was meant to be precatory, and also because the WPR says in Section 8(d) that nothing in the WPR “is intended to alter the constitutional authority of the . . . President.”

To be fair to Krauthammer, the Congressional Research Service, of all institutions, says, incorrectly: “[S]ince the War Powers Resolution’s enactment over President Nixon’s veto in 1973, every President has taken the position that it is an unconstitutional infringement by the Congress on the President’s authority as Commander in Chief.”  At least one Bush-era OLC opinion cited this language.  Some presidential advisors, and a few signing statements, have over the years vaguely suggested that the WPR might be unconstitutional in some respects.  And, finally, a 2001 OLC opinion declared without any analysis that the WPR (provisions not specified) cannot “place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.”  So Krauthammer’s claim is definitely not baseless.  But it is neither an accurate description of the views of all presidents (or even of most in the post-WPR period), nor an accurate description of the official executive branch view of the WPR.  (For analysis of the genesis of the very misleading “All Presidents think the WPR is unconstitutional” meme, see these posts by Stephen Griffin.)