WAR AND THE CONSTITUTION:

Transcription

1 WAR AND THE CONSTITUTION: A Look at the Role of Congress in Korea, Vietnam, Afghanistan, and ISIS Prof. Robert F. Turner

2 WAR AND THE CONSTITUTION: A Look at the Role of Congress in Korea, Vietnam, Afghanistan, and ISIS Prof. Robert F. Turner

3 The Original Understanding At the Federalist Society, we think it is useful to begin constitutional analysis by trying to understand the goals of its authors and their understanding of the words they used.

4 The Original Understanding At the Federalist Society, we think it is useful to begin constitutional analysis by trying to understand the goals of its authors and their understanding of the words they used. Our new Constitution is awful.

5 The Original Understanding At the Federalist Society, we think it is useful to begin constitutional analysis by trying to understand the goals of its authors and their understanding of Originally, awful had the meaning the words they used. Our new Constitution is awful. of being awe-inspiring... as well as worthy of, or commanding, profound respect or reverential fear.

6 The Original Understanding At the Federalist Society, we think it is useful to begin Constitution constitutional is awful analysis unless we realize the by trying to understand the goals of word s meaning has its authors and their understanding of Originally, awful shifted had dramatically the meaning over the words they used. Our new Constitution is awful. We are not likely to understand the meaning of a statement that our the centuries. of being awe-inspiring... as well as worthy of, or commanding, profound respect or reverential fear.

7 The Original Understanding At the Federalist Society, we think it is useful to begin constitutional analysis by trying to understand the goals of its authors and their understanding of the words they used. Our new Constitution is awesome.

8 Similarly, the The Original Understanding understanding of At the Federalist Society, we think it is useful to begin Constitution constitutional is awful analysis unless we realize the by trying to understand the goals of word s meaning has its authors and their understanding of Originally, awful shifted had dramatically the meaning over the words they used. executive power has Our new Constitution changed since is awful. We are not likely to understand the meaning of a statement that our the centuries. of being awe-inspiring... as well as worthy of, or commanding, profound respect or reverential fear.

9 Similarly, the The Original Understanding understanding of At the Federalist Society, we think it is useful to begin Constitution constitutional is awful analysis Many today think unless Article we realize II, the by trying to understand the goals of Section 1, of the word s Constitution meaning has its authors and their understanding of Originally, merely empowers awful shifted had the dramatically the President meaning over the words they used. the centuries. to carry out or execute the statutes enacted by Congress. executive power has Our new Constitution changed since is awful. We are not likely to understand the meaning of a statement that our of being awe-inspiring... as well as worthy of, or commanding, profound respect or reverential fear.

10 Similarly, the The Original Understanding understanding of At the BREAKING Federalist Society, THE CODE we think it is useful to begin Constitution constitutional is awful analysis Many The today most important think unless Article we grant realize I, the by trying to understand the goals of Section of presidential 2, of the word s Constitution power meaning has its authors and their understanding of Originally, merely the empowers awful Constitution shifted had the dramatically the President meaning over the words they used. the centuries. to carry out or execute the statutes enacted by Congress. executive power has Our new Constitution changed since is awful. We are not likely to understand the meaning of a statement that our of being awe-inspiring... as well as worthy of, or commanding, profound respect or reverential fear.

11 No Mention of Executive Power Clause The executive power The other Article II grants that may concern national shall security be seem vested modest in a in comparison to powers President conferred of upon the Congress: United to appoint and States receive of America. ambassadors.. and. ministers, and to make treaties (both powers shared with the Senate). U.S. Const. Art. II, Sec. 1 -Dycus et al., National Security Law

12 Rep. Madison on the Meaning of the Executive Power Clause (June 1789) [T]he Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department. letter to Edmund Pendleton, 21 June 1789, 5 Writings of James Madison n.

13 Thomas Jefferson Memorandum to President Washington (April 24, 1790) The Constitution.... has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate....

14 Thomas Jefferson Memorandum to President Washington (April 1790) The transaction of business with foreign nations is executive altogether;... except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly....

15 Washington s Diary April 27, 1790 Madison and Jay agreed with Jefferson that the Senate had no Constitutional right to interfere in foreign affairs beyond narrow negatives over treaties and appointments.

16 Alexander Hamilton First Pacificus Letter (1793) The general doctrine of our Constitution... is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.... It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

17 Alexander Hamilton First Pacificus Letter (1793) The general doctrine of our Constitution... is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.... It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

18 Prof. Quincy Wright on the Content of Executive Power [W]hen the constitutional convention gave executive power to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. The Control of American Foreign Relations 147 (1922)

19 The Constitutional Convention

20 Constitutional Convention August 17, 1787 Madison and Gerry moved to strike make War and give Congress instead the more limited power to declare War... ; leaving the Executive the power to repel sudden attacks. 2 Max Farrand, Records of the Federal Convention 318.

21 Constitutional Convention August 17, 1787 When Rufus King noted that make War might be understood to conduct it, which was an Executive function, the final vote was 8-1 for Madison s amendment. 2 Max Farrand, Records of the Federal Convention 319 n.

22 Constitutional Convention August 17, 1787 Even Roger Sherman, who preferred make War, contended that The Executive shd. be able to repel and not to commence war. 2 Max Farrand, Records of the Federal Convention 319.

23 Constitutional Convention August 17, 1787 Pierce Butler then moved to give the Legislature power of peace, as they were to have that of war. After a brief debate, this motion failed by a vote of Max Farrand, Records of the Federal Convention 319.

24 Constitutional Convention August 17, 1787 It seems an article of faith today that Pierce Butler then moved to give the Congress can at any time legislate an end Legislature power of peace, as they were to a war (as it did in Indochina). But given to have that of war. the view that exceptions to Executive After Power a brief should debate, be construed this motion strictly, failed and this by a clear vote unanimous of rejection of giving Congress a role in making peace at the end of a war, should that be reconsidered? 2 Max Farrand, Records of the Federal Convention 319.

25 Constitutional Convention August 17, 1787 Pierce Remember, Butler then moved Congress to give the Legislature power of peace, as they were was joined with the to have that of war. President only in the After a brief debate, this motion failed by a vote of decision to declare War, not to conduct or end it. 2 Max Farrand, Records of the Federal Convention 319.

26 Constitutional Convention I am August not questioning 17, 1787 the clear power of Congress It seems an article of faith today that Pierce Butler then moved to give the Congress Legislature to can undermine at any time legislate power of peace, a as war an end they by were to a war (as it did in Indochina). But given to have that of war. refusing new requests the view that exceptions to Executive After Power a brief should debate, be construed this motion strictly, failed and this by a clear vote unanimous of for appropriations rejection of giving or Congress troops. a role in making peace at the end of a war, should that be reconsidered? 2 Max Farrand, Records of the Federal Convention 319.

27 Remember Hamilton s That view would be consistent Explanation with Rep. James Madison s 1789 Thus, First argument it can Pacificus be argued that Essay the that Senate (1793) Congress had has no power role in to the legislate removal an end of the to an Secretary ongoing war of Foreign (although Affairs it clearly since has no it duty was to only provide joined new in troops, the equipment, appointment or money and phase thus as and a practical as an exception matter Congress to the can executive end any major war power quickly. its role should be narrowly construed. It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

28 Remember Hamilton s That view would be consistent Explanation with Rep. Madison s 1789 argument Thus, First it can Pacificus that be the argued Senate Essay that (1793) Congress had no role has in no the power removal to legislate of the an end to an Secretary ongoing war of Foreign (although Affairs it clearly since has no it duty was to only provide joined new in troops, the equipment, appointment or money and phase thus as and a practical as an exception matter Congress to the can executive end any major war power quickly. its role should be narrowly construed. It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution. Madison s argument carried the day in the House and Senate.

29 Congress Has Formally Declared War 12 Times in 5 Wars War of 1812 Mexican-American War (1846) Spanish-American War (1898) World War I Against Germany; Austria-Hungary World War II Against Japan, Germany, Italy, Bulgaria, Hungary, Romania

30 Congress May Authorize Hostilities Without Formlly Declaring War Bas v. Tingy (1800) Talbot v. Seeman (1801) (Marshall, C.J.) SFRC Rep t on National Commitments Res. The committee does not believe that formal declarations of war are the only available means by which Congress can authorize the President to initiate limited or general hostilities. Joint resolutions such as those pertaining to... the Gulf of Tonkin are a proper method of granting authority. Sen. Rep t No (1967)

31 Congress Has Enacted 11 AUMFs Quasi-War with France (1798) Tripoli (Barbary Pirates 1802) Algeria (Barbary Pirates 1815) Suppression of Piracy ( ) Formosa (1955) Middle East (1957) Indochina ( Gulf of Tonkin Res 1964) Lebanon (1983) Desert Storm (Iraq 1991) Al Qaeda & Assoc. (9/11 attacks) OIF (Iraq) (2002)

32 Force Short of War THROUGHOUT OUR HISTORY, PRESIDENTS HAVE SENT U.S. ARMED FORCES INTO HARM S WAY ON AVERAGE NEARLY ONCE A YEAR WITHOUT SEEKING CONGRESSIONAL APPROVAL.

33 Force Short of War United States v. Verdugo-Uriquidez 494 U.S. 259, 273 (1990). The United States frequently employs Armed Forces outside this country over 200 times in our history for the protection of American citizens or national security.

34 The War Power of Congress The scholarly debate too often focuses upon the meaning of the term war A better approach may be to begin with these observations: Article I, Sec. 8, of the Constitution gives Congress not the war power but the power to Declare War The term of art Declaration of War was well known to the Founding Fathers, who were well read on the Law of Nations Grotius De Jure Belli ac Pacis was the second most popular lawbook in Colonial Virginia private libraries As an exception to the President s Executive powers, the power to declare war was expected to be construed narrowly.

35 Hugo Grotius on Declarations of War [N]o declaration [of War] is required when one is repelling an invasion, or seeking to punish the actual author of some crime. Grotius, De Jure Belli ac Pacis, bk. III, Ch. 3

36 Hugo Grotius on Declarations of War [N]o declaration [of War] is required when one is repelling an invasion, or seeking to punish the actual author of some crime. Grotius, De Jure Belli ac Pacis, bk. III, Ch. 3

37 Alberico Gentili on Declarations of War [W]hen war is undertaken for the purpose of necessary defence, the declaration is not at all required. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).

38 Alberico Gentili on IS THE POWER TO DECLARE WAR AN ANACHRONISM TODAY? Declarations of War Article I, Section 8, Clause 11 of the [W]hen war is undertaken for the Constitution reads: purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

39 Alberico Gentili on IS Letters THE POWER of Marque TO DECLARE and Reprisal WAR Declarations were AN outlawed ANACHRONISM by of Pact War of TODAY? Paris in 1856 and are now an anachronism. Article I, Section 8, Clause 11 of the [W]hen war is undertaken for the Constitution reads: purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

40 The type of War associated with formal IS Alberico THE POWER Gentili TO DECLARE on Declarations of War was outlawed by Kellogg-Briand WAR Declarations AN and ANACHRONISM the UN Charter. of War TODAY? Is that part of Clause 11 now an Article I, Section 8, Clause 11 of t reads: anachronism as well? [W]hen war is undertaken for the purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

41 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand and the UN Charter. Is that part of Clause 11 now an anachronism as well? I m not suggesting treaties have WAR Declarations AN ANACHRONISM of War TODAY? altered the Constitution. Should [W]hen the Article United I, Section war is States 8, Clause undertaken ever 11 decide of the for the to Constitution reads: purpose issue illegal of necessary Letters of defence, Marque the declaration and Congress Reprisal shall not or to at have formally the required. Power... Declare 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]). To declare War, War, Congress grant Letters would of have Marque to approve and Reprisal, both and actions make Rules under concerning the Constitution. Captures Land and Water;....

42 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand But no nation and the in UN the Charter. world Is has WAR Declarations AN ANACHRONISM of War TODAY? that clearly part of Clause issued 11 now a formal an anachronism Article I, Section as well? 8, Clause 11 of the [W]hen Declaration war is undertaken of War for since the Constitution reads: purpose of necessary defence, the WW II. declaration Congress is shall not at have all the required. Power... 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]). To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

43 An important caveat I am discussing the issue of when the Constitution requires legislative consent to resort to the use of armed force abroad.

44 An important caveat I am discussing the issue of when the Constitution requires legislative consent to resort to the use of armed force abroad. As a matter of wise public policy, I strongly believe getting Congress on board early makes great sense even when not required.

45 Removing Troops from Europe Congressional Record (December 27, 1922) Mr. Reed. Does the Senator think and has he not thought for a long time that the American troops in Germany ought to be brought home? Mr. Borah. I do. [But] [y]ou can not bring them home, nor can I. Mr. Reed. We could make the President do it. Mr. Borah. We could not make the President to it. He is Commander in Chief of the Army and Navy of the United States, and if in the discharge of his duty he wants to assign them there, I do not know if any power that we can exert to compel him to bring them home. We may refuse to create an Army, but when it is created he is the commander. Mr. Reed. I wish to change my statement. We can not make him bring them home.

46 John Bassett Moore on the 1928 Kellogg-Briand Pact Self-defense by a nation is not war. When once you have outlawed war, do not use the word war any more. [Thus many talk today of the Law of Armed Conflict rather than the Law of War]

47 United Nations Charter (1945) Signed June 26 Approved by Senate July 28 by a vote of 89-2 (four absent Senators announced support)

48 For further information Harv. J. L. & Pub. Pol. 533 (1996).

49 The Charter Obligation Senate Debate on Consenting to Ratification of the United Nations Charter (1945)

50 SFRC Chairman Tom Connally on War and UN Charter As to declaring war, that is not a question which is involved here at all. These forces are not exacted to make war. They are exacted as peace forces, to undertake to preserve peaceful nations against aggression and attack.i am convinced that the Presidential use of armed forces in order to participate in the enforcement action under the Charter would in no sense constitute an infringement upon the traditional power of Congress to declare war. 91 Cong. Rec (1945).

51 Unanimous SFRC Report on UN Charter (1945) Preventative or enforcement action by these [US] forces upon the order of the Security Council would not be an act of war but would be international action for the preservation of the peace and for the purpose of preventing war. Consequently, the provisions of the Charter do not affect the exclusive power of the Congress to declare war. The committee feels that a reservation or other congressional action would also violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress. Senate Foreign Relations Committee Report recommending consent to ratification of UN Charter (1945).

52 HFAC Report on UN Participation Act (Unanimous 1945) The basic decision of the Senate in advising and consenting to ratification of the Charter resulted in the undertaking by this country of various obligations which will actually carried out by and under the authority of the President as the Chief Executive, diplomatic, and military officer of the Government. Among such obligations is that of supplying armed forces to the Security Council concerning which provision is made in section 6. [T]he ratification of the Charter resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder. House Foreign Affairs Committee Rep t No (1945).

53 Congressional Expectations on UN Military Operations The Wheeler Amendment to the 1945 UN Participation Act

54 The Wheeler Amendment to the UNPA (December 4, 1945) [T]he President shall have no authority, to make available to the Security Council any armed forces to enable the Security Council to take action under article 42 of said charter, unless the Congress has by appropriate act or joint resolution authorized the President to make such forces available in the specific case in which the Council proposed to take action.

55 Senate Action on the Wheeler Amendment The Wheeler Amendment was defeated by a margin of more than 7 to 1 (9 yeas, 65 nays). [UNPA then passed 65-7 (9:1 margin)]

56 The Myth of Presidential Wars The Korean Conflict Did Truman Ignore Congress?

57 SFRC Chairman Tom Connally on Truman s Phone Call (June 26, 1950) He [Truman] hadn t as yet made up his mind what to do. Do you think I ll have to ask Congress for a declaration of war if I decide to send American forces into Korea? the President asked. If a burglar breaks into your house, I said, you can shoot at him without going down to the police station and getting permission. You might run into a long debate by Congress, which would tie your hands completely. You have the right to do it as commander-in-chief and under the U.N. Charter. My name is Tom Connally 246 (1954).

58 Senate Majority Leader s Advice to President Truman on Korean War 1 [After Sec. Acheson recommended that the President go before a joint session of Congress to seek a formal resolution endorsing his actions] Senator [Scott] Lucas said that he frankly questioned the desirability of this. He said that things were now going along well.he said that the President had very properly done what he head to without consulting the Congress. He said the resolution [proposed by Acheson] was satisfactory and that it could pass. He suggested as an alternative [to going before a joint session of Congress] that the President might deliver this message as a fireside chat with the people of the country.

59 Senate Majority Leader s Advice to President Truman on Korean War 2 Senator Lucas said that most of the members of Congress were sick of the attitude taken by Senators Taft and Wherry.Senator Lucas said that he felt he knew the reactions of Congress. He thought that only Senator Wherry had voiced the view that Congress should be consulted. Many members of Congress had suggested to him that the President should keep away from Congress and avoid debate.... He did not think that Congress was going to stir things up. Top Secret MemCon by Amb. Phillip Jessup of 3 July 1950 Blair House Meeting, in VII Foreign Relations of the United States 1950 Korea (1976).

60 President Truman s Response to Senate Majority Leader Scott Lucas The President said that it was necessary to be very careful that he would not appear to be trying to get around Congress and use extra-constitutional powers.the President said that it was up to Congress whether such a resolution should be introduced, that he would not suggest it. Top Secret MemCon by Amb. Jessup of 3 July 1950 Blair House Meeting, in VII Foreign Relations of the United States 1950 Korea (1976).

61 The Myth of Presidential Wars The Vietnam Conflict: Was Congress Bypassed?

62 Rep. Paul Findley (1961) (Congressional Record, May 23, 1961 p. 8587) U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay. No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the toolittle, too-late policies which invite aggression.

63 Congress and Vietnam The Gulf of Tonkin Resolution (August 1964)

64 The Gulf of Tonkin Resolution Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

65 The Gulf of Tonkin Resolution The SEATO Protocol States were [South] Vietnam, Laos, and Cambodia. Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

66 Senate Debate on Tonkin Resolution Mr. Cooper. Does the Senator consider that in enacting this resolution we are satisfying that requirement [the constitutional processes requirement] of Article IV of the Southeast Asia Collective Defense treaty? In other words, are we not giving the President advance authority to take whatever action he may deem necessary respecting South Vietnam and its defense, or with respect to the defense of any other country included in the treaty? Mr. Fulbright. I think that is correct. Mr. Cooper. Then, looking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution? Mr. Fulbright. That is the way I would interpret it. If a situation later developed in which we thought the approval should be withdrawn, it could be withdrawn by concurrent resolution. 110 Cong. Rec (1964).

67 Senate Debate on Tonkin Resolution Mr. Cooper. Does the Senator consider that in enacting this resolution we are satisfying that requirement [the constitutional processes requirement] of Article IV of the Southeast Asia Collective Defense Particularly treaty? In other disillusioning words, are we not giving the President advance over authority the years to take was whatever the action he may deem necessary respecting South Vietnam and its defense, or with respect to the performance defense of any other of country Senator included J. in the treaty? Mr. Fulbright. I think William that is correct. Fulbright. Mr. Cooper. Then, looking -Stanford ahead, Dean if John the President Hart Ely, decided that it was necessary War & to Responsibility use such force 16 (1995). as could lead into war, we will give that authority by this resolution? Mr. Fulbright. That is the way I would interpret it. If a situation later developed in which we thought the approval should be withdrawn, it could be withdrawn by concurrent resolution. 110 Cong. Rec (1964).

68 Senator Russell Long on Tonkin Gulf Resolution I think it is time for the Hanoi regime to know that so far as we are concerned we have declared the war we are fighting. We declared a limited war. We did that at the time of the Gulf of Tonkin incident Cong. Rec (1966).

69 Senator Thomas Eagleton (1970) Although the existence of the Tonkin Gulf Resolution did not make the war we have waged in South Vietnam any wiser or any more explicable, it did make it a legitimate war authorized by the Congress.

70 Prof. John Hart Ely on the Legality of the Vietnam War [A]s the constitutional requirement of congressional authorization has historically been understood, Congress does indeed appear (years of denial and doubletalk notwithstanding) to have authorized each of these phases of the war. Ely, War & Responsibility 12 (1993)

71 Early Congressional Support for Vietnam 1955: Senate approved SEATO Treaty with 2 dissents 1964: Tonkin Resolution approved (Appropriated more than three times LBJ s request for Vietnam along with enacting resolution) 1966: $13 billion supplemental appropriation passed in House and 87-2 in Senate 1967: $12 billion supplemental passed in House and 77-3 in Senate (House rejected amendment to prohibit funds for combat over North Vietnam 77-3)

72 Senator Jacob Javits on Vietnam 1966: It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy. 1966: In my own thinking there can no longer be any doubt about the legality of our assistance to the people of South Vietnam. I have never doubted the lawfulness of U.S. assistance to the Republic of Vietnam. 1973: [The War Powers Resolution is] a bill to end the practice of presidential war and thus to prevent future Vietnams. The War Powers Act would assure that any further decision to commit the United States to any warmaking must be shared in by the Congress to be lawful.

73 Senator Jacob Javits on Vietnam 1966: It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy. 1966: In my own thinking there can no longer be any doubt about the legality And of our thus assistance was to born the people of South Vietnam. I have never doubted the lawfulness of U.S. assistance to the Republic the 1973 of Vietnam. War 1973: [The War Powers Resolution is] a bill to end the practice of presidential Powers war and thus to prevent future Vietnams. The War Resolution. Powers Act would assure that any further decision to commit the United States to any warmaking must be shared in by the Congress to be lawful.

74 Does the President Need a New AUMF for ISIS?

75 Does the President Need a New AUMF for ISIS? My short answer is no.

76 Does the President Need a New AUMF for ISIS? My short answer is no. ISIS is not a sovereign State, and formal Declarations of War (the power given to Congress) were never viewed as appropriate unless there were States on both sides.

77 Does the President Need a New AUMF for ISIS? Any constitutional claim that the My President short answer needs is no. congressional ISIS approval is not a presumably sovereign State, comes and from formal the power Declarations of Congress of War to (the power declare given war to Congress) in Art. I, Sec. were 8, Cl. never 11, of viewed the Constitution. as appropriate unless there were States on both sides.

78 Does the President Need a New Neither the War AUMF Powers for Resolution ISIS? nor any Any other constitutional statute claim enacted that the by President My needs short congressional answer is approval Congress can usurp the no. President s presumably comes from the power of constitutional ISIS Congress is not power to a declare sovereign as war Commander in State, Art. I, Sec. and in Chief. formal 8, Cl. 11, Declarations of the Constitution. of War (the power given to Congress) were never viewed as appropriate unless there were States on both sides.

79 Does the President Need a New AUMF for ISIS? My short answer is no. Indeed, a formal Declaration of ISIS is War not might a sovereign play into ISIS State, hands formal by Declarations confirming they of are War the (the power sovereign given to Islamic Congress) State were they never pretend viewed to as be. appropriate unless States on both sides.

80 The 2001 AUMF Seems Clearly to Cover ISIS [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

81 The 2001 AUMF Seems Who Clearly to Cover ISIS decides? [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

82 The 2001 AUMF Seems Who Clearly to Cover ISIS decides? [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines The fact that I didn t vote planned, for him authorized, does committed, or aided the not change terrorist the attacks 2001 that occurred on September 11, AUMF 2001, or harbored the such organizations or persons, Constitution. in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

83 The 2001 AUMF Was Seems al Who Qaeda Clearly to Cover ISIS clearly decides? one of [T]he President is authorized to use all necessary and appropriate force against those nations, those organizations, or persons he determines organizations? planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

84 The 2001 AUMF Was Seems al Who Qaeda Clearly to Cover ISIS clearly decides? one of [T]he President is authorized to use all necessary and appropriate force against those nations, those organizations, or persons he determines organizations? Was al Qaeda planned, authorized, committed, or aided the of Iraq once terrorist attacks that occurred on September 11, 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international Qaeda terrorism against the United States by such nations, organizations or persons.?

85 UNSC Resolution 2170 (2014) The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of Reiterating its condemnation of ISIL, ANF and all other individuals, groups, undertakings and entities associated [T]he President with Al-Qaida is authorized for ongoing to use all and necessary multiple criminal and those appropriate terrorist acts force aimed against at causing those the nations, deaths of civilians organizations, and other or victims, persons destruction he Was determines al of property Qaeda and organization By planned, what authorized, logic committed, does AQI of cultural and religious sites, and greatly or aided undermining the. terrorist attacks that occurred of on Iraq September once 11, immunize? itself by 2001, or harbored such organizations part of or persons, al order to prevent any future acts of international 18. becoming Observes that more ISIL violent is a splinter terrorism against the United States Qaeda by such group nations, of organizations Al-Qaida, or.. persons... The UNSC has repeatedly declared that ISIS is a splinter group of al Qaeda. and changing its name??

86 The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of The UNSC has repeatedly [T]he President is authorized to use all necessary and those appropriate force against those nations, organizations, or persons he Was determines al Qaeda planned, authorized, committed, or aided the terrorist attacks that occurred of on Iraq September once 11,? 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international terrorism against the United States Qaeda by such nations, organizations or persons. declared that ISIS is a splinter group of al Qaeda. organization?

87 UNSC Resolution The 2001 AUMF 2170 (2014) Seems Clearly Who to Cover ISIS Reiterating Was al Qaeda its condemnation of ISIL, ANF and all decides? clearly [T]he President one is of authorized to use all necessary The UNSC has repeatedly other individuals, groups, undertakings and entities associated with Al-Qaida for ongoing and multiple and appropriate force against those nations, criminal those terrorist acts aimed at causing the deaths of organizations, or persons he determines civilians organization and other victims, destruction Was al of property Qaeda and planned, authorized, committed, or aided the of cultural and religious sites, and terrorist attacks that occurred of greatly on Iraq undermining September once 11,.? 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international 18. terrorism Observes against that the ISIL United is States a Qaeda splinter by such nations, organizations or persons. declared that ISIS is a splinter group of al Qaeda. group of Al-Qaida,....?

88 UNSC The Resolution 2001 AUMF 2253 (2015) Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly [T]he President one is of authorized to use all necessary The UNSC has repeatedly declared Recalling that that ISIS ISIL is a is a splinter splinter group group of Al-Qaida of al Qaeda..... and those appropriate force against those nations, organizations, or persons he Was determines al Qaeda planned, authorized, committed, or aided the terrorist attacks that occurred of on Iraq September once 11,? 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international terrorism against the United States Qaeda by such nations, organizations or persons. organization?

89 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having a bipartisan Congress announce it was standing united [T]he behind President the President: is authorized to use all necessary and those appropriate force against those [T]he nations, President is organizations, or persons he Was determines authorized al Qaeda to use all organization By planned, what authorized, logic committed, does necessary AQI or aided and the terrorist attacks that occurred of appropriate on Iraq September once force 11, immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

90 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having a bipartisan Congress announce it was standing united [T]he behind President the President: is authorized to use all necessary and those appropriate force against those [T]he nations, President is 1. I don t organizations, think that is even or persons arguably he Was determines authorized al Qaeda to use all constitutionally organization By planned, what necessary; authorized, logic committed, does necessary AQI or aided and the terrorist attacks that occurred of appropriate on Iraq September once force 11, immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

91 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having Congress announce it was standing united behind the President: [T]he President is authorized to use all necessary and Indeed, appropriate there force is against nothing those in those [T]he nations, President is 1. I don t organizations, think the that Constitution is even or persons arguably that he Was determines authorized al Qaeda to use all constitutionally organization By planned, what necessary; required authorized, logic AUMF committed, does after necessary AQI or the aided and the terrorist that occurred of appropriate on Iraq September once force 11, immunize 9/11? attacks itself on America. by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

92 Even Section 2(c)(2) The of 2001 the 1973 AUMF War Powers So, Resolution while I think acknowledged there could be the great President s political Seems Clearly Who constitutional benefits Was al power by having Qaeda to use Congress armed Who to force Cover following ISIS announce an armed it was attack standing on the united United decides? behind clearly [T]he President one is of decides? States. the President: authorized to use all necessary and Indeed, those appropriate there force is against nothing those in [T]he nations, President is 1. I don t organizations, think the that Constitution is even or persons arguably that he Was determines authorized al Qaeda to use all constitutionally organization By planned, what necessary; required authorized, logic AUMF committed, does after necessary AQI or the aided and the terrorist that occurred of appropriate on Iraq September once force 11, immunize 9/11? attacks itself on America. by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

93 Even Section 2(c)(2) The of 2001 the 1973 AUMF War Powers So, Resolution while I think acknowledged there could be the great President s political Seems Clearly Who constitutional benefits Was al power by having Qaeda to use Congress armed Who to force Cover following ISIS announce an armed it was attack standing on the United united decides? behind clearly [T]he President one is of decides? States. the President: The constitutional powers of the President as authorized to use all necessary Commander-in-Chief to introduce United and Indeed, those appropriate there force is against nothing those in States Armed Forces [T]he into hostilities, nations, President or into is 1. I don t organizations, think the that Constitution is even or persons situations arguably where that Was imminent determines authorized al involvement Qaeda to use in all constitutionally organization By planned, what necessary; authorized, logic hostilities committed, does is clearly necessary indicated AQI by or aided and the required the circumstances, AUMF after are terrorist that occurred exercised the appropriate on Iraq only September once force pursuant to 11, immunize 9/11? attacks itself (1) on a declaration America. by of war, (2) specific statutory against those nations, 2001, or harbored authorization, such organizations (3) organizations, part a national of or persons, al or becoming order to prevent more emergency any future violent created acts of by international attack persons he terrorism against the upon United the United States Qaeda States, by such its and nations, changing organizations territories its persons. or name? possessions, determines or its armed forces. planned, authorized,? committed, or aided the terrorist attacks....

94 Even Section 2(c)(2) The of 2001 the 1973 AUMF War Powers So, Resolution while I think acknowledged there could be the great President s power political Seems Clearly Who to use benefits Was armed al force by having Qaeda following Congress an Who to armed Cover attack ISIS on announce the United it was States. standing united decides? behind the President: clearly [T]he President one is of decides? The constitutional powers of the President as authorized to use all necessary Commander-in-Chief to introduce United and Indeed, those appropriate there force is against nothing those in States Armed Forces [T]he into hostilities, nations, President or into is 1. I don t organizations, think the that Constitution is even or persons situations arguably where that Was imminent determines authorized al involvement Qaeda to use in all constitutionally organization By planned, what necessary; authorized, logic hostilities committed, does is clearly necessary indicated AQI by or aided and the required the circumstances, AUMF after are terrorist that occurred exercised the appropriate on Iraq only September once force pursuant to 11, immunize 9/11? attacks itself (1) on a declaration America. by of war, (2) specific statutory against those nations, 2001, or harbored authorization, such organizations (3) organizations, part a national of or persons, al or becoming order to prevent more emergency any future violent created acts of by international attack persons he terrorism against the upon United the United States Qaeda States, by such its and nations, changing organizations territories its persons. or name? possessions, determines or its armed forces. planned, authorized,? committed, or aided the terrorist attacks....

95 Even Section 2(c)(2) The of 2001 the 1973 AUMF War Powers So, Resolution while I think acknowledged there could be the great President s power political Seems Clearly Who to use benefits Was armed al force by having Qaeda following Congress an Who to armed Cover attack ISIS on announce the United it was States. standing united decides? behind the President: clearly [T]he President one is of decides? The constitutional powers of the President as authorized to use all necessary Commander-in-Chief to introduce United and Indeed, those appropriate there force is against nothing those in States Armed Forces [T]he into hostilities, nations, President or into is 1. I don t organizations, think the that Constitution is even or persons situations arguably where that Was imminent determines authorized al involvement Qaeda to use in all constitutionally organization By planned, what necessary; authorized, logic hostilities committed, does is clearly necessary indicated AQI by or aided and the required the circumstances, AUMF after are terrorist that occurred exercised the appropriate on Iraq only September once force pursuant to 11, immunize 9/11? attacks itself (1) on a declaration America. by of war, (2) specific statutory against those nations, 2001, or harbored authorization, such organizations (3) organizations, part a national of or persons, al or becoming order to prevent more emergency any future violent created acts of by international attack persons he terrorism against the upon United the United States Qaeda States, by such its and nations, changing organizations territories its persons. or name? possessions, determines or its armed forces. planned, authorized,? committed, or aided the terrorist attacks....

96 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having a bipartisan Congress announce it was standing united [T]he behind President the President: is authorized to use all necessary and those appropriate force against those [T]he nations, President is 1. I don t organizations, think that is even or persons arguably he Was determines authorized al Qaeda to use all constitutionally organization By planned, what authorized, necessary; logic committed, does necessary AQI or aided and the 2. I don t terrorist think it attacks is likely that to happen occurred of appropriate on Iraq September once force 11, politically. immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

97 Now Prof. Corn Will Tell You Why I m Mistaken

98 Are there any questions?