Lederman on War Powers

People may have missed it, but in comments yesterday Marty Lederman left the following remarks with regard to presidential war powers:

1. The War Powers Resolution does not prohibit any initiation of hostilities. Section 2, which Jim Henley quotes, is merely hortatory -- it expresses Congress's view of when the President can act unilaterally as a matter of constitutional authority. It does not itself impose any limitations. (And as Dellinger pointed out, *everyone* agrees that section 2 is inadequate as a descriptive matter, although there's a lot of dispute about how far the President's constitutional powers extend.)
2. The War Powers Resolution does require the President to get congressional approval if hostilities last beyond 90 days. The OLC Opinion that Matt links concluded (controversially) that appropriations statutes for Kosovo provided the requisite congressional approval for going beyond 90 days there. A similar question would arise if an Iranian conflict goes beyond 90 days; but we're not there yet, obviously.

3. The big question here is not the War Powers Resolution, but the Constitution. What sorts of hostilities can the President initiate unilaterally under the Constitution? Matt is right that the Clinton Administration took a very broad view -- see Haiti, Bosnia Bosnia and Kosovo, for starters; we basically concluded that congressional pre-approval is only required for a complete, or total, war (see footnote 5 of the Bosnia opinion, hinting that the Korean War might have been unlawful because Congress had not authorized it in advance).

The Bush Administration view is broader than that, if that's possible. There is no doubt Bush believes he has the authority to initiate all-out war with Iran, although of course the initial forays will be more limited than that (e.g., "surgical" strikes) -- which even the Clinton Administration would have viewed as constitutionally permissible.

So as a *practical* matter, the issue is determined -- the President believes he has the power, and he won't hesitate to exercise it.

Unless.

Unless Congress actually passes a statute, probably over Bush's signature, that would *prohibit* military action against Iran. Bush might go ahead anyway, in the teeth of such a statute, because in this respect his views of executive authority go way beyond Clinton's. But that truly would be an unprecdented constitutional showdown.

And it, too, is hypothetical, because Congress won't enact such a statute.

Therefore, what's most interesting about this whole incident is Hillary Clinton taking a narrower view of presidential authority than Bill did as President -- that *any* use of force against Iran requires congressional approval! Frankly, I'm surprised she has expressed such a view. Be interesting to see how Edwards and Obama respond.

Clearly, as long as George W. Bush is president, I think presidential war powers, like presidential powers in all respects, should be as sharply limited as possible. On the actual merits of the issue, I'm not really sure how I think the congress-president balance in such matters should go. As a general matter, I tend to think parliamentary systems as seen in Britain or Canada are superior to our method of government. A system like that puts less formal restraint on the head of government in terms of his ability to act, but also makes it much easier to dump a head of government whose policies have failed and whose leadership is widely considered inept.

2/15/07 9:19AM del.icio.us this incoming links

Comments

All this debate is very interesting. Moot, but interesting. As stated Bush likely will do as he damn well pleases (and as he may in fact be legally permitted). In my view armed hostilities with Iran are a certainty. We should all move beyond the legalities and begin talking of how we're going to react, what we're going to do once they occur.

Posted by: steve duncan on February 15, 2007 09:39 AM

Matt,

Thanks for the post on the War Powers Act. It's nice to have a nostalgic look back at the law, which hasn't come up much in the last 30 years. You and most of your readers are too young to remember when the War Powers Act was enacted toward the end of the Vietnam War as an attempt to try to prevent more Vietnams.

It was a very controversial bill in the usual conservative vs liberal way, but this time some liberal actually opposed it. They argued that rather than limiting the president, the law would actually empower a president to use force, and as a practical matter it would be difficult for Congress to shut the barn down after the horse had gotten out. (Conservatives at that time opposed the bill because they thought it would be a restriction on the president's ability to conduct foreign policy.)

It turns out that all the handwringing about the law really didn't seem to matter, did it? Presidents do what they want to do, and the politicians in Congress are too gutless to do anything about it. We'll see what happens as it applies to Iran. But I'm not holding my breath.

Posted by: phil from new york on February 15, 2007 09:42 AM

"As a general matter, I tend to think parliamentary systems as seen in Britain or Canada are superior to our method of government. A system like that puts less formal restraint on the head of government in terms of his ability to act, but also makes it much easier to dump a head of government whose policies have failed and whose leadership is widely considered inept."

This has problems as well. If we'd had a Parliamentary system in 1862, our biggest foreign policy issues today would probably revolve around our neighbor to the south, the Confederate States of America.

Posted by: Alex Knapp on February 15, 2007 09:50 AM

Paleo-con Clinton Rossiter rides to the right's rescue again in his canonical The American Presidency, where he flat-out declares that the only check on the President's power in time of war is public opinion. Recent history more than bears this out.

Posted by: Tim on February 15, 2007 09:55 AM

Sorry -- there was a mistake in there; I meant to say that if Congress enacted a limitation on hostilities with Iran, it would probably be over Bush's *veto* (or with a signature but a signing statement that he won't consider himself bound by the restriction).

A couple of other things:

1. In the Feingold hearing on Congress's war powers a couple of weeks ago, Senator Kennedy asked this question of the panelists. Both Brad Berenson and Walter Dellinger agreed that *large-scale* conflict against Iran would require congressional authorization. Although that's correct, I'd be surprised if the current President agrees. David Barron also testified that one would also have to consider whether perhaps the Iraq authorization itself contains an implied restriction on certain hostilities against Iran. Again, although I agree with this, too, I rather doubt that the White House would read the Iraq AUMF to contain such implied restrictions.

2. Based upon a viewing of a more complete excerpt of the Clinton speech --
http://electioncentral.tpmcafe.com/blog/electioncentral/2007/feb/14/clinton_to_bush_dont_attack_iran_without_congressional_authority -- I'm not sure it's crystal clear that she is taking the view that unilateral action against Iran would necessarily be *unconstitutional.* She first makes a pitch on *policy* grounds for deliberate, joint-branch decisionmaking w/r/t Iran. Then she states that the 2001 and 2003 AUMFs do not provide congressional support for an attack on Iran (which is correct). And then she states: "If the administration believes that any -- any -- use of force against Iran is necessary, the president must come to Congress to seek that authority." The word "must" here could be understood to mean "is constitutionally required to." (I think that's how Matt and other observers are understanding it.) But it could also mean, more modestly, that in order to have a two-branch-approved conflict -- as she insists would be appropriate -- Bush can't rely on past congressional statutes, but must seek and obtain a new one.

Posted by: Marty Lederman on February 15, 2007 10:01 AM

NY Phil is exactly right... the weakness in the system is the inclination of Congress to behave in a craven, even if politically clever, manner. The president can send the military where and when he wants. The Congress will never then "not support the troops" by denying funding.
Every (almost) president is going to expand her powers to near or beyond the breaking point and it can be argued that the tensions this creates with Congress are the most important dynamic in our self rule. BushCheney are certainly doing their bit, it's the Congress that fails us.
To a degree we are paying a price now for not forcefully opposing Clinton's wars/interventions. Yes I know why that was, but still...

Posted by: jaimie on February 15, 2007 10:03 AM

as long as George W. Bush is president, I think presidential war powers, like presidential powers in all respects, should be as sharply limited as possible.

The important limitations here are political rather than statutory or even constitutionally enumerated.

Presidents get political leeway to act militarily if previous military actions have been successful, but find their options limited if recent military actions have been unsuccessful. Clinton benefited from the fact that his various interventions didn't blow up in his face. When Bush came to power, he also benefited from Clinton's record, and was allowed to initiate the Iraq war in spite of clear danger signs. Now that Iraq has gone very sour, Bush ought to be limited politically in any attempt to start something in Iran.

And in fact the limitation is there, despite the administration's determination to ignore it. If Bush initiates open hostilities with Iran in the teeth of clear public opposition, and if, further, the new conflict goes even worse than Iraq (very likely), the political consequences for the Republican Party will be catastrophic. It's hard to see how any GOP candidate would be trusted with the presidency for many years to come, given such a betrayal.

Even if Bush doesn't pay for his stubborn incompetence, his party will. And that's where the real war power limitations on the presidency lie.

Posted by: jimBOB on February 15, 2007 10:18 AM

Matthew, I don't know why you (and many other US commentators) think it is easy under the Canadian system to dump a head of government. Actually, it is really hard.

Posted by: Pithlord on February 15, 2007 10:19 AM

Clearly, as long as George W. Bush is president, I think presidential war powers, like presidential powers in all respects, should be as sharply limited as possible.

But Presidential powers don't work like this - they don't expand and contract based on the person occupying the office. I mean, how exactly does Matthew think would that work? I don't get it. Or is Matthew just saying he has no principles on the matter?

Posted by: Al on February 15, 2007 10:36 AM

But Presidential powers don't work like this - they don't expand and contract based on the person occupying the office.

Actually they do, if (as here) they're political in nature. Bush can defy the laws of political gravity for a time, but at tremendous cost to his party. And if he pushes it too far, he may find himself out of office prematurely.

Posted by: jimBOB on February 15, 2007 10:45 AM

Even if Bush doesn't pay for his stubborn incompetence, his party will. And that's where the real war power limitations on the presidency lie.

That's great, but Bush doesn't strike me as a guy who is particularly loyal to anything other than himself, and while the thought of not having a Republican on the White House for the next umpteen years is nice, it wouldn't make up for the clucterfuck that an attack on Iran would cause.

Posted by: daveNYC on February 15, 2007 10:51 AM

DaveNYC

For now, it's as good as you're gonna do.

Posted by: jimBOB on February 15, 2007 12:14 PM

But Presidential powers don't work like this - they don't expand and contract based on the person occupying the office.

No, they expand and contract according to the Youngstown framework. As long as Bush is in office, Congress should make sure that every exercise of Bush's war powers is circumscribed by strict statutes, such that those powers are always at their "lowest ebb."

Posted by: dj moonbat on February 15, 2007 12:26 PM

It's hard to see how any GOP candidate would be trusted with the presidency for many years to come, given such a betrayal.

My own father (1) was highly skeptical of the Iraq war drumbeat, suspecting oil interests, (2) didn't think that the primary fault for Abu Ghraib lay with the grunts, even though they were taking the fall, and (3) voted for George W. Bush again in 2004, because at least he opposed abortion rights, gay marriage, and Palestinians. So don't go overboard overestimating the intelligence of the electorate, jimBOB. I mean, yes, 2006 midterms were a corrective, but based on this President's approval rating, too many of his enablers were still returned to office.

And yes, as daveNYC points out, further damage to the Republican brand won't sway this administration from doing absolutely anything it wants, however unconstitutional, because there are no consequences whatsoever for them. And the precedent that there are no consequences will further poison the conduct of future Presidents of either party. I mean, we're already to the point of noting that the War Powers Act is more a set of guidelines than an actual law.

Posted by: mds on February 15, 2007 12:33 PM

But Presidential powers don't work like this - they don't expand and contract based on the person occupying the office.

Umm, they pretty clearly do. If you're the sort of person who can and does hire John Yoo, you're going to be able to claim a larger set of powers than other Presidents. I think you mean that they don't formally work like this.

Posted by: SomeCallMeTim on February 15, 2007 12:37 PM

he flat-out declares that the only check on the President's power in time of war is public opinion.

Realistically, that's true. Meaning that the only thing keeping the US from dictatorship is a long run without crapping out. Or perhaps it's because the wishes of fuckwits like Al are beyond the pale, even of a relatively diffuse public that's easily subject to executive power.

Posted by: pseudonymous in nc on February 15, 2007 12:42 PM

There may be a lesson to be learned here in terms of allowing Democratic Presidents to cut corners, even regarding a cause one generally agrees with, if it ends up setting a bad precedent for someone like Bush. On the other hand, it's questionable whether the precedents really matter other than in a "gotcha" sense, so maybe there's no point getting hung up on matters of principle.

Posted by: Steve on February 15, 2007 12:46 PM

No, they expand and contract according to the Youngstown framework.

This, I agree with.

As long as Bush is in office, Congress should make sure that every exercise of Bush's war powers is circumscribed by strict statutes, such that those powers are always at their "lowest ebb."

To the extent this is what Matthew means, fine. I understood it somewhat differently - that, given the same set of statutes, court cases, etc., Bush should have less war powers than, say, Clinton. But I can see how you can read it the way you are.

Posted by: Al on February 15, 2007 12:55 PM

mds

With all respect to your father, I'm not sure if 2004 is a good comparison here. In 2004 the war was somewhat unpopular, but wasn't seen as an overriding concern. By 2006 the war was very very unpopular, and the election pretty much swung on it. Bush responded by doing the exact opposite of what the electorate very loudly asked him to do: he escalated rather then withdrawing. I don't think the GOP has any idea just how much this is going to hurt them in the years to come.

Posted by: jimBOB on February 15, 2007 01:41 PM

The issue here is enforcement. What happens if the administration attempts to act without the authority of Congress?

Congress only has one power that has real effect in this situation: impeachment. Whether Congress used the power would depend entirely on the outcome of any hostilities.

If the Iranians greeted the cruise missiles with flowers and the Atomic Ayatoloahs regime fell within a couple of days then Bush is vindicated &ct.

That is not a very likely scenario however. More likely is that Iran shuts down the Straits of Hormuz, bombs the oil installations of any gulf powers that supported the US attack. If US Navy ships are lost in any numbers the death toll will quickly rise above the losses in Iraq. The Iraq fiasco has been five years in the making. An Iranian fiasco is likely to be realized within hours or days.

In that situation impeachment becomes the most likely outcome. Congress can cite anything it choses as grounds for impeachment. Waging war without the authority of Congress is certainly justification.

I don't think that the 90 day rule is relevant. I would expect impeachment procedings to begin within days of an attack not weeks or months.

Congress always reacts to the last crisis. In 2002 they voted the way that they wished they had voted in the first US-Iraq war. That time they voted the way they wished they had voted on Tonkin. Congress will do exactly the same this time round, the last two Bush wars have been fiascos and there will be no Democrat support and little GOP support for a third.

Posted by: PHB on February 15, 2007 01:46 PM

Matthew, I don't know why you (and many other US commentators) think it is easy under the Canadian system to dump a head of government. Actually, it is really hard.

I don't know much about Canada, but wrt Britain, I think it's fair to say that a) it is very difficult to dump a head of government; and b) it is significantly easier to dump a head of government than it is in the US.

In the last century in Britain, the following heads of government were, more or less, dumped:

1) Asquith, 1916
2) Lloyd George, 1922
3) Chamberlain, 1940
4) Eden, 1957
5) Thatcher, 1990

This is not a terribly long list, but it is still a lot longer than the US list, which consists of

1) Richard Nixon, 1974.

In the wake of serious foreign policy disasters in the first four cases, and a serious domestic policy disaster, in Thatcher's, parliament got together and forced the sitting PM who was responsible for the disaster to step down. This is clearly pretty difficult to do, but, nonetheless, it does happen. It really doesn't happen in the US - the only time it did was due to gross misuse of power, which did not happen in any of the British cases.

Posted by: John on February 16, 2007 05:09 PM

Those of you who are deabting what Matt meant might notice that he then said "on the actual merits". Indicating that while he sure would wish on the present circumstances that the President had little power, he realizes that these type of questions have to be discussed without to myuch reference to individual presidents. Of course I might be misreading Matt.

If I were a Constitutional lawyer I say the question of the Presidents War Powers are pretty clear. Congress controls the purse and could obviously enact a law prohibiting the use of goverment money for waging non-Congress approved wars. There is nothing in the Constitution to contradict this Approapriations Clause-based argument. Instead the requirement that wars be declared by Congress reenforces it.

Of course as a practical matter the question is much more unsettled. Just because the Constitution is clear does not mean it will be followed. The exact extent of the President's War Powers is likely to vary with his stature in the public opion, with his level of support in Congress and countless other political factors.

Posted by: Johan Richter on February 21, 2007 03:07 PM

I agree that merely increasing the number of democratic member states is unlikely help with the enforcement problem plaguing the United Nations. The number democratic member-states is already high, yet enforcement is feeble at best: Adding more democratic states (or more rules!) is unlikely to improve this situation.

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