War, Foreign Affairs, and the Constitution
WAR, FOREIGN AFFAIRS, AND THE CONSTITUTION
The United States became a nation among nations on July 4, 1776, fully endowed with sovereignty, that is, the capacity to do whatever nations do in world politics. International law acknowledges that nations have the power to breach their international legal obligations and take the consequences so far as other nations are concerned. Constitutionally, breaches of international law by Congress or the President are binding on courts and citizens alike as official acts within the discretion of the political branches of the government. Thus the foreign affairs powers, including the war powers, draw their substance from the matrix of public international law. In the language of perez v. brownell (1958), the Constitution recognizes in the national government "the powers indispensable to its functioning effectively in the company of sovereign nations."
In the constitutional convention, a majority led by james wilson insisted that an "energetic" and independent President was needed to maintain the unity of a country that was already large and destined to become larger, and above all to help assure its safety in a turbulent and dangerous world. As edward s. corwin wrote:
[T]he fact is that what the Framers had in mind was not the cabinet system, as yet nonexistent even in Great Britain, but the "balanced constitution" of [ john ] locke, montesquieu, and [ william ] blackstone, which carried with it the idea of a divided initiative in the matter of legislation and a broad range of autonomous executive power or "prerogative." Sir Henry Maine's dictum that "the American constitution is the British constitution with the monarchy left out," is, from the point of view of 1789, almost the exact reverse of the truth, for the presidency was designed in great measure to reproduce the monarchy of George III with the corruption left out, and also of course the hereditary feature [1957, pp. 14–15].
Actually, all comparisons of the British and American constitutions break down. The President is effectively both king and prime minister, but Congress is not Parliament, and its relation to the President is necessarily at arm's length.
The entire authority of the United States to act as a sovereign nation in world politics is confined by the Constitution to the national government and denied to the states. It is divided by the Constitution between the President and Congress.
The President is head of state as well as head of government, and therefore the ultimate embodiment of the nation's sovereignty, especially in times of crisis. abraham lincoln turned to his prerogative and residual powers as the source of much of his authority during the civil war. In addition, the Constitution endows the President with "the" executive power of the United States, including without limitation the power to conduct diplomacy; to make treaties, with the advice and consent of the Senate; and to serve as commander-in-chief of the armed forces; moreover, he is enjoined to see to it that the laws are faithfully executed.
The constitutional definition of the role of Congress in foreign affairs is comparably broad. Article I provides that "all legislative powers herein granted shall be vested in a Congress of the United States." Among the powers expressly granted to Congress are the powers to lay and collect taxes and provide for the common defense; regulate foreign commerce; establish an uniform rule of naturalization; define and punish piracies and felonies committed on the high seas and offenses against the law of nations; declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; and raise and support the armed forces, make rules for their government and regulation, and provide for organizing, arming, and disciplining the militia and calling forth the armed forces and the militia to execute the laws of the Union, suppress insurrections, and repel invasions. The problems of citizenship and of foreign affairs in their more general aspects are not mentioned, but Congress's authority to legislate on such issues has been readily inferred by the Supreme Court as inherent in national sovereignty.
In short, the Constitution prescribes that the foreign affairs powers of the nation—including the war power—be shared between Congress and the President in accordance with the overriding principle of functional necessity. All the powers the nation requires in the international environment exist. Those which are executive in character are to be exercised by the President. Those which are legislative in nature are reserved for Congress. When in recess, however, Congress can meet only at the President's call, and can act in all cases only subject to the President's veto power. As Corwin concluded, the Constitution invites the President and Congress "to struggle for the privilege of directing American foreign policy."
Sooner or later, most aspects of the conduct of foreign affairs involve both legislative and executive decisions; they are therefore the proper business of both Congress and the President, in a pattern that reflects subtle political judgments about how their cooperation can best be organized under the circumstances. A few functions are unique to each branch. Only the President can command the armed forces, call a special session of Congress, or conduct the diplomacy of the nation; and only Congress can declare war, appropriate money, or make certain conduct criminal. On the other hand, the President sometimes asks members of Congress to serve on diplomatic delegations. And Congress sometimes attempts to restrict the President's power to deploy or use the armed forces, although many constitutional authorities have regarded such restrictions as invasions of the President's executive power.
The flexibility of the constitutional arrangements for making and carrying out foreign policy is not peculiar to the field of foreign affairs. As james madison saw from the beginning, the principle of the separation of powers does not mean that the three branches of the government are really separate. Most of their powers are commingled. The branches are not independent but interdependent, and the preservation of the functional boundaries between the legislative and the executive depends as much on the reflexes of the political system as on rulings of the Supreme Court.
It was realized from the beginning that rigid rules about how Congress and the President should work together in the field of foreign affairs would be undesirable and indeed dangerous. As alexander hamilton wrote in the federalist #23, "the authorities essential to the common defense … ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."
Diplomacy without force behind it has been and will remain a nullity. The use or the threat of armed force has been a normal instrument of American diplomacy, from secret warnings, "showing the flag," and conducting maneuvers, at one end of the spectrum, to programs of re-armament, partial mobilization, and the actual use of armed force—in times of "war" and of "peace," as international law defines those words—at the other. In the early days of the Republic, raids across the borders were commonplace. The problems of piracy and the slave trade required the frequent use of force, pursuant to treaty, statute, or the decisions of the President acting alone. Then and now, international law recognized the right of all states to use limited force in peacetime to cure forceful breaches of international law when no peaceful remedy was available. The United States has taken advantage of its rights in this regard to protect its borders, its ships, its citizens in peril abroad, and indeed, the rights of citizens whose monetary claims had not been paid by foreign governments. Moreover, the United States and other Western nations have sometimes intervened abroad on humanitarian grounds where organized government has broken down. Such exercises by the United States of its "inherent" right of self-defense have been carried out mainly, but not exclusively, on the authority of the President.
The threat to use force and even the use of force have been familiar features of diplomacy from the opening of Japan to President richard m. nixon's secret nuclear warnings that induced the Soviet Union not to attack Chinese nuclear installations. At the end of the Civil War, we deployed 50,000 troops along the Mexican border. France heeded our suggestion, withdrew its troops from Mexico, and left Maximilian to his fate. Similarly, in 1962, President john f. kennedy assembled some 250,000 troops in Florida, and halted a Soviet vessel carrying military supplies to Cuba; the Soviet Union withdrew its nuclear missiles from Cuba. A few years earlier, at a moment of severe Soviet pressure against Turkey, President harry s. truman ordered the battleship Missouri to carry the body of a deceased Turkish ambassador to Istanbul for burial—manifestly a journey intended to be more than a courteous gesture to the people of Turkey. Such threats of force have been almost entirely within the province of the President.
The list of such incidents is long enough to demonstrate that throughout its history the United States government has called upon its armed forces to perform a wide variety of functions in support of its foreign policy. There have been five declarations of war in our national experience, and more than 200 episodes in which the President ordered the armed forces into combat, sometimes with the support of a treaty or of legislation passed before or after the event, more often on his own authority. The number of occasions on which the President secretly threatened to use force in aid of his diplomacy cannot be counted accurately, but is surely considerable.
The pattern of cooperation between the President and Congress with respect to war and foreign affairs has been the same since the first administration of President george washington. This continuity of practice arises from the nature of things. Congress could and did admonish the President to protect frontier settlements from Indian raids but could not meet and vote every time the risk arose. In any event, it was the President's duty to protect the settlements with or without the support of a statute. The circumstances which may require the use of or the threat to use armed force are too protean, and pervade the conduct of foreign affairs too completely, to be compressed within a single procedure.
From the beginning of our government under the Constitution, a great deal of energy has been absorbed by attempts to define the respective roles of the President and of Congress in carrying out these functions. The participants in the debate are divided into two camps.
Hamilton's view of the Presidency dominates the judicial opinions, the pattern of practice, the writings of scholars, and the pronouncements of senators and representatives. To Hamiltonians, all national powers not granted to Congress or the courts are "executive" and therefore presidential, especially if they concern relations with foreign powers or the duties of the nation under international law.
But a dissenting opinion has persisted, based on the fear of executive power as dictatorship in disguise. Corwin calls it the "ultra-Whig" view. It opposes almost all claims to presidential independence, and regards the executive as no more than an obstreperous but indispensable servant of a "sovereign" Congress. This conception of the Presidency has been a mainstay of political attacks on Presidents for unpopular wars.
The Hamiltonian position crystallized during the neutrality controversy of 1793, an episode of immense importance to the formation of the Constitution. France had declared war against Great Britain. The United States was bound to France by the 1778 treaties of perpetual alliance which seemed to require the infant Republic, in the event of war between France and Britain, to give various forms of belligerent aid to France. Any such assistance would have been an act of war against Great Britain, which could easily have snuffed out the new nation. Washington and his cabinet were determined to preserve neutrality despite the treaties with France and the strongly pro-French bias of public opinion. After the Supreme Court refused Washington's request for an advisory opinion determining whether the President could issue a proclamation of neutrality on his own authority, Washington did so, and took special precautions to assure Great Britain of America's pacific intentions.
The concurrent nature of the foreign relations power was soon demonstrated. Juries would not convict American seamen for violating the President's neutrality proclamation. Congress then grudgingly passed a Neutrality Act, supporting the President's interpretation of the treaties with France. In due course, the Neutrality Act was enforced. Congress had the last word, but acted under circumstances carefully arranged by the President, acting independently.
Hamilton's Pacificus papers, defending the President's right to issue the Proclamation of neutrality, are among the most cogent of all our state papers on the conduct of foreign affairs. The President, said Hamilton, has the foreign affairs and war powers of the British monarch minus the limitations on those powers mentioned in the Constitution. Those limitations, being exceptions to the President's executive powers, should be strictly construed.
The President is the sole officer of the government empowered to communicate with foreign nations. This is an executive power. It was therefore the President's role to inform the nations about the position of the United States with respect to the European war. Next, Hamilton argued, it is the President's duty to preserve peace until Congress declares war. In this case, the President's duty required him faithfully to execute the international law of neutrality, and thus avoid giving offense to foreign powers. To carry out that duty, the President had to determine for himself whether a status of neutrality conformed to our national interests and was compatible with our obligations under the French treaties, and then to announce his position diplomatically. Hamilton said that the President has the authority and the duty to determine the operation of treaties in the first instance, an important example of his right as President to decide upon the obligations of the country to foreign nations until Congress does so within its own sphere.
Hamilton's analysis would lead to the conclusion that while only Congress can move the nation into a state of general war, the President can authorize more limited uses of force in peacetime for purposes of self-defense, the protection of citizens abroad, the fulfillment of treaty obligations, and the support of diplomacy.
The Ultra-Whig dissenting view draws an altogether different boundary between the respective war powers of the President and Congress. For the dissenters, Congress's power to "declare" war gives Congress entire control over every aspect of the war power, including neutrality. It means, they contend, that the President can never employ the armed forces, save to repel a sudden attack, unless Congress has first passed a "declaration of war." Some dissenters agree that Congress may authorize limited war in the international law sense, but insist that the declaration of war clause requires congressional action before the President uses force at all, except in cases of sudden attack. A few concede that circumstances may justify congressional approval after the event—after Pearl Harbor, for example, or the firing on Fort Sumter. And some even accept the decision of the Supreme Court in the prize cases (1863), which upheld acts of Congress ratifying President Lincoln's blockade of the Confederacy, enacted some months after the President had instituted the blockade. But all the dissenters are dubious about statutes, treaties, or joint resolutions—and many have been put on the books since 1792—that may be invoked to support presidential uses of force years later. The Ultra-Whigs admit that the United States may, like other nations, sign treaties that have military provisions, but they are uneasy about the propriety of such commitments unless they are reiterated by Congress when they become the basis for military action.
There is no reason for such confusion to persist. The "declaration of war" authorized in the Constitution is bracketed in Article I, section 8, with "letters of marque and reprisal" and "captures on land and sea." All are terms of specific meaning in international law. A declaration of war has far-reaching consequences, including: the authorization of unlimited hostilities, the possible internment of enemy aliens, the sequestration of enemy property, and the imposition of regulations, such as censorship, that would be unthinkable in peacetime. But many kinds of hostilities recognized as legitimate under international law do not constitute "general war," and can therefore be initiated by official action less sweeping than a declaration of war. Most familiar are exercises of the right of self-defense against certain breaches of international law. Many are short, quick responses to a sudden threat; others become more prolonged conflicts. International law limits all such defensive campaigns to the use of as much force as is reasonably necessary to eliminate the original breach.
Hamilton's theory of presidential power is clearly the operative model of American constitutional law with respect to the international use of force. But the practice has not been nearly so symmetrical as Hamilton's logic. Every American President who has felt obliged to use the armed forces has vividly remembered the political attacks on " john adams ' Undeclared War," and therefore sought to obtain congressional support for his policies as soon as it was politically feasible to do so. But such prudence has never helped a President saddled with an unpopular war. John Adams was supported by four successive statutes; they had no effect on the political outcry against him, or the fate of the Federalist party. Presidents Truman and lyndon b. johnson endured similar trials. As Johnson commented: "I said early in my Presidency that if I wanted Congress with me on the landing of Vietnam, I'd have to have them on the take off. And I did just that.… But I failed to reckon with one thing: the parachute. I got them on the take off, but a lot of them bailed out before the end of the flight."
Between the Congress of Vienna and the turn of the twentieth century, the United States was not a major actor in world politics; the central features of American foreign policy were Manifest Destiny and the monroe doctrine. Nonetheless, there were periods of tension between Congress and the President with respect to the conduct of foreign relations. The most acute of these episodes concerned the expansion of the nation to the Pacific and controversies about problems in Latin America and Canada. Some of the controversies reflected deep divisions between the parties and among the people, others no more than normal rivalry between the political branches of the government.
But the collapse of the old state system in 1914 imposed new burdens on the United States, which in turn gave rise to profound disquiet in American opinion, exacerbating the traditional tension between Congress and the President with respect to the war power, and reaching a climax during the early 1970s. The vietnam war dragged on, accompanied by antiwar rioting of a kind the nation had not experienced since the Civil War. At the same time, the controversy over President Nixon's behavior with respect to Watergate poisoned the political atmosphere, and produced so strong a movement for the President's impeachment that he resigned.
In this atmosphere of extreme political excitement, Congress passed the War Powers Resolution of 1973. Its political purpose was to assure the people that Congress could and would protect the nation against future Vietnams. For the first time in nearly two hundred years, the Hamiltonian view of the Presidency and the war power suffered at least a nominal defeat.
The Resolution asserts congressional supremacy with regard to the war power, but it does not adopt an extreme form of the Ultra-Whig view. It does not say, for example, that the President can use force only if Congress has first declared war. Not does it seek to confine the President's use of force without prior congressional approval to cases of "sudden attack."
The Resolution purports to fulfill the intent of the Framers of the Constitution, as summarized in three propositions. First, the armed forces should not be involved in hostilities without the collective judgment of Congress and the President. Second, Congress has the power to pass all laws necessary and proper for carrying into execution the powers of the President. Third, the constitutional powers of the President as Commander-in-Chief can be exercised by him to introduce the forces into hostile situations only pursuant to a declaration of war or a "specific" statute, or in a national emergency created by an attack upon the United States. Clearly, this attempt at restatement omits the nation's obligations under treaties.
The Resolution requires the President to consult with Congress "in every possible instance" before introducing the armed forces into situations where hostilities are an imminent risk, and also to "consult" regularly with Congress after hostilities have begun until they are terminated. The resolution makes no attempt to define the term "consult," which is a word of political but not of constitutional meaning.
The War Powers Resolution requires the President to report to Congress within forty-eight hours and regularly thereafter whenever he has introduced armed forces into situations risking hostilities without a declaration of war. It further requires the President to terminate such a use of the armed forces within sixty days unless Congress has declared war, authorized hostilities in another "specific" form, or extended the sixty-day period to not more than ninety days. Where hostilities are being conducted abroad without a declaration of war or "specific" authorization in another form, the resolution authorizes Congress, by concurrent resolution, to require the President to terminate hostilities and remove the armed forces.
If the War Powers Resolution were carried out literally, it would constitute the most revolutionary change in the Constitution ever accomplished—far more drastic in its effects than the shift of authority from the states to the national government which began after Civil War. It would subject the President to the orders of an omnipotent Congress. No future President could do what Lincoln did during the Civil War, or rely on the behavior of every strong President between Washington and Lyndon Johnson as precedents. The deterrent influence of American military power and of American treaties, already weakened after Vietnam, would decline even further. The United States would be the only country in the world that lacked the capacity to enter into treaties or conduct secret negotiations contemplating the use of force, and it would be hampered in many other ways in the conduct of its foreign relations. Enforcing the resolution would produce paradoxes. Although no future President could do what President Kennedy did during the Cuban Missile Crisis in 1962, the highly "specific" legal arrangements for the Vietnam War would have satisfied the Resolution's requirements. That war was authorized not only by the United Nations Charter and the Southeast Asia Collective Defense Treaty of 1954, but by the gulf of tonkin resolution of 1963 and other explicit acts of Congress as well. On the other hand, the sponsors of the Resolution have said that it does not affect the President's unique responsibilities with regard to the nuclear weapon. Above all, as has been evident in the decade since it was passed, the Resolution would convert almost every serious foreign policy problem into a debate between Congress and the President about constitutional power, making the conduct of foreign relations even more cumbersome and contentious than is the case already.
The War Powers Resolution is in profound conflict with the necessities of governance in a turbulent world and with the concept of the Presidency that has evolved from the experience of the nation under the Constitution. We can therefore predict that the Hamiltonian conception of the war powers will prevail as the constitutional norm, and that the War Powers Resolution will become a footnote to history, either through repudiation or desuetude.
Institutional pride may keep Congress from repealing the resolution, although repeal disguised as revision is not unthinkable. The courts will almost surely declare the Resolution unconstitutional if an appropriate case should arise. The ruling of the Supreme Court in immigration and naturalization service v. chadha (1983) is applicable to the chief operative parts of the War Powers Resolution. Chadha ruled that congressional action can have legislative effect only through acts or joint resolutions fully subject to the President's veto. If Congress cannot constitutionally terminate a war by passing a concurrent resolution, it can hardly do so by failing to pass such a resolution within sixty or ninety days.
In holding the War Powers Resolution unconstitutional, the Supreme Court may well go beyond Chadha to deal with more fundamental aspects of the separation of powers principle: the resolution's effect, for example, on the President's hitherto unquestioned power to conduct secret negotiations, receive surrenders, or negotiate cease-fire agreements; and its attempt, recalling the proposed bricker amendment, to require legislation before treaties can become the supreme law of the land.
Even if the resolution is neither repealed nor declared unconstitutional by the courts, it is unlikely to be an important influence on Presidents. The resolution does not correspond to the nature of the problems of foreign policy and national security with which the government has to deal, and therefore cannot function as effective law. At least eleven episodes involving the use of force or the imminent risk of using force occurred during the first decade after the War Powers Resolution was passed. In each case the President, while protesting that the resolution was unconstitutional, consulted with congressional leaders and kept Congress informed about events. In no case did the procedure mandated by the resolution prove convenient or appropriate, and in no case was it followed. In each case there were some congressional protests that the War Powers Resolution was being violated, and even suggestions that the President be impeached.
The President and Congress, separately and together, have been entrusted by history with sovereign prerogatives in exercising the foreign affairs and war powers of the nation. Those prerogatives have been in uneasy balance for two hundred years, an instance of the friction between the branches of government on which the Founding Fathers relied to preserve the liberties of the people. Over a wide range, the President and Congress can exercise their joint and several political discretion in dealing quickly with complex and swiftly moving events, often on the basis of fragmentary information. Within that zone, the only constitutional restraints on which the people can rely to secure them from the abuse of such political discretion is the electoral process itself, as Chief Justice Marshall remarked in gibbons v. ogden (1824).
But the choices committed by the Constitution to the care of Congress and the President are not unlimited, even when one gives full weight to the view that the war power is the power to wage war successfully. The foreign affairs and war powers are aspects of a government organized under a written Constitution dominated by the principle of democratic responsibility. Although the Supreme Court has hesitated to pass on many conflicts between the President and Congress, it has intervened where exercises of the war power impinged upon civil rights, or attempted radically to alter the equilibrium of the constitutional order.
Thus, certain constitutional limits on the President's war power emerged in its first major test—the neutrality crisis of 1793. President Washington could have used the armed forces or called up the militia to keep French privateers at the docks of Philadelphia or Charleston; in the event, he prudently refrained from such action. But he could not get American juries to convict American citizens indicted for violating a presidential proclamation. Similarly, youngstown sheet & tube co. v. sawyer (1952) decided that the President had no inherent powers to seize steel mills as a step toward settling a strike during the Korean War when Congress had rejected such a procedure.
There are comparable constitutional limits on what Congress and the President acting together can do in the name of the war power. Congress can make it an offense to recruit soldiers within the United States for wars in which the United States is neutral, but it is doubtful whether it would be constitutional for Congress to forbid American citizens from going abroad to fight. In Ex parte Merryman (1861) and Ex parte Milligan (1867) the courts held that even in the midst of the Civil War, courts-martial could not try civilians while the ordinary courts were available. And in reid v. covert (1957) and Kinsella v. United States (1960) the Supreme Court struck down convictions imposed by courts-martial on the wives of military personnel living on American bases abroad.
The only exceptions to this line of cases are the japanese american cases, decided during world war ii. These cases upheld the constitutionality of a statute authorizing the President to exclude citizens of Japanese descent from California, Oregon, and Washington, and requiring their internment in camps until they could be resettled in other parts of the country. These decisions have been severely criticized, and the Court's opinion in duncan v. kahanamoku (1946) can be interpreted as overruling them sub silentio. Until they are more decisively repudiated, however, they remain, as Justice Jackson said in korematsu v. united states (1944), "a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."
Eugene V. Rostow
Henkin, Louis 1972 Foreign Affairs and the Constitution. Mineola, N.Y.: Foundation Press.
Randall, James G. (1926) 1951 Constitutional Problems under Lincoln. Urbana: University of Illinois Press.
Revely, W. Taylor, III 1981 The War Powers of the President and Congress. Charlottesville: University Press of Virginia.
——1973 Statement, in Appendix to War Powers, Hearings before Subcommittee on National Security Policy and Scientific Developments, Committee on Foreign Affairs, House of Representatives, 93rd Congress, 1st Session, March 7–20, 1973, pp. 395–502; also in Rostow, Eugene v. 1972 Great Cases Make Bad Law: The War Powers Act. Texas Law Review 50:833–900.
Sofaer, Abraham D. 1976 War, Foreign Affairs, and Constitutional Power: The Origins. Cambridge, Mass.: Ballinger Publishing Co.
Turner, Robert F. 1983 The War Powers Resolution: Its Implementation in Theory and Practice. Philadelphia: Foreign Policy Research Institute.
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