Sunday, March 20, 2011

Originalism and Congress's Power to Declare War
Mike Rappaport

President Obama has ordered the U.S. military to attack Libya without congressional authorization.  Put aside whether that is consistent with the principles on which Obama campaigned.  Is it constitutional?

In my view, the original meaning is clear: he has no authority to do this.  For the pathbreaking article that explained how the text of the Declare War Clause prevents the President from attacking countries, see Michael Ramsey, Textualism and War Powers, 69 U. Chicago L. Rev. 1543 (2002), which is unfortunately not online for free.

Liberals often view the original meaning as contrary to their views and many liberals who are originalists torture the original meaning to reach liberal results.  But this is one area where the original meaning strongly favors the "liberal" position.   

Cross Posted at The Originalism Blog.

https://rightcoast.typepad.com/rightcoast/2011/03/originalism-and-congresss-power-to-declare-warmike-rappaport.html

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Comments

I do not concur.

There is an operative distinction between declaring war and the use of military force. This is hardly a new development for American Presidents have been ordering military operations without a formal declaration of war for a very long time. What takes place when Congress makes a formal of war against a peer- or near peer-competitor, is not the same thing as what a president does when he sends the Marines to punish Barbary pirates or soldiers to chase banditos. An Article One, Section 8, Clause 11 declaration is not needed for limited operations against natives.

I pass over the effect if any, of the War Powers Act, for this discussion throws down a constitutional gauntlet. The Constitution requires a congressional declaration of war against Germany or Japan, or the Former Soviet Union, but not against Pancho Villa or, for that matter, Libya, then or now.

Congress knows these things. In 1789, a decision to go to war meant appropriating money to cut down trees for use in building ships. In our day, Congress has provided carrier battle groups and amphibious task forces on station around the world, and aircraft capable of servicing targets from bases in the homeland.

To reply to an obvious objection, yes, aggression against a peer-competitor--launching nuclear missiles against the FSU, for example, is tantamount to a declaration of war, and would be beyond presidential discretion. Chastisement, or even regime change of third-rate powers is not.

Posted by: Lou Gots | Mar 21, 2011 10:53:24 AM

Obama is getting criticized from the right and the left which is for me the best indication that he is doing the right thing

Posted by: mike livingston | Mar 21, 2011 3:26:02 PM

Lou: You are entitled to your views, but I recommend reading the article I mentioned if you are interested in the original meaning of the Clause.

Posted by: Michael Rappaport | Mar 21, 2011 4:27:49 PM

Great suggestion I recently stumble your blog and have been reading along

Posted by: wholesalers | Mar 21, 2011 8:17:42 PM

LG,

The US has consistently acknowledged the legitimacy of a world of equally sovereign nation states even if we cheat in practice. Your position, that only some nations are really nations in the sense of declaring war, opens up a can of worms that is not contemplated by the constitution and more importantly, would be a real headache in the here and now.

Posted by: molly | Mar 21, 2011 10:49:50 PM

Thanks for both counter-replies. I suggest that the "original meaning" of the clause were beeter divined from what was done than from what was said.

The can of worms is upon us whether we would have it or not. Wsstphalian "sovereignity" never was more than a legal fiction, a presext for one holder of great would power to act as a guarantor of the balance of power against another.

Even at that, the fiction always had its limits, namely those of hegemonic spheres of influence. cf. Haiti and Hungary or Czechoslovakia.

This is not 1648, nor 1815, and fictitous "sovereignity" is less relevant now than it was then. Economic interdependance and military technology have transformed a great many things.

Posted by: Lou Gots | Mar 22, 2011 7:34:04 AM

Lou,

Look to the Volokh Conspiracy comments on the issue of the Barbary Pirates as it seems clear that Congress actually did authorize use of force against them before hostilities commenced. Further, your example of Pancho Villa vis a vis Libya, as Pancho was not a sovereign nation and Libya is, doesn't seem like a great analogy to me.

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