Congress vs. the President on War & Foreign Affairs

Congress vs. the President on War & Foreign Affairs Prof. Robert F. Turner Distinguished Fellow Center for National Security Law University of Virginia School of Law

My time is limited... I m going to briefly touch on a few key issues to set the stage for your questions.

Congressional Power I m not going to focus heavily on the constitutional grants of power to Congress, but some of them are very important. E.g., the Commander in Chief has no Army or Navy to command unless they are first created, equipped, and funded by Congress.

FEDERALIST # 47 On Separation of Powers and Tyranny However: The Founding Fathers The accumulation of all powers legislative, were very executive concerned and judiciary in the about same hands, constraining whether of the one, a few or many, and whether hereditary, self powers appointed, of or Congress. elective, may justly be pronounced the very definition of tyranny.

FEDERALIST # 47 On Separation of Powers and Tyranny The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

FEDERALIST # 47 On Separation of Powers and Tyranny The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.... The founders of our republics.... seem never to have recollected the danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. - Federalist No. 47 (Madison).

Thomas Jefferson Notes on the State of Virginia All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government....

Jefferson s Advice on New Constitution Letter to Madison, Dec. 1786 Congress itself should meddle only with what should be legislative. But I question if any Congress (much less all successively) can have self-denial enough to go through with this distribution. The distribution, then, should be imposed on them.

Thomas Jefferson Eleven days after the new Constitution went into effect, Jefferson wrote to Madison: The executive, in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present.... Jefferson to Madison, March 15, 1789, in 14 PAPERS OF THOMAS JEFFERSON 659

The Supreme Court on the Framers Fear of Legislative Tyranny [T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches. Buckley v. Valeo, 424 U.S. 1, 129 (1976).

Correcting a Modern Myth How many times have we heard it said that, in a democracy, every governmental power must be checked ; and, when Presidents claim to have independent Executive power Congress can t control, they are claiming the powers of a monarch like King George III?

Have we forgotten Marbury v. Madison?

Does the President Have Any Unchecked Powers? Marbury v. Madison (Marshall, C.J.) By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience....

Does the President Have Any Unchecked Powers? Marbury v. Madison (Marshall, C.J.). [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.

Does the President Have Any Unchecked Powers? Marbury v. Madison (Marshall, C.J.) The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president.... The acts of such an officer, as an officer, can never be examinable by the courts. - Marbury v. Madison (Marshall, C.J.)

Does the President Have Any Unchecked Powers? Marbury v. Madison (Marshall, C.J.) The subjects are political. They respect the nation, not individual rights, and being entrusted to the C.J. executive, Marshall the decision viewed of the executive is these conclusive. issues The as application of this remark will be perceived by adverting to the act of congress for political establishing questions. the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president.... The acts of such an officer, as an officer, can never be examinable by the courts. - Marbury v. Madison (Marshall, C.J.)

Textual Source of the President s Authority Over Foreign Affairs BREAKING THE CODE: The executive Power Where in the Constitution shall be vested in a do we find a grant of foreign President of the United affairs power to the States of America. President? - U.S. Const., Art. II, Sec. 1.

Textual Source of the President s Authority Over Foreign Affairs The executive Power shall be vested in a President of the United States of America. - U.S. Const., Art. II, Sec. 1.

The Framer s Understanding of Executive Power Locke, Montesquieu, Blackstone, and other theorists of the time included within the executive power the control over foreign affairs.

The Framer s Understanding of Executive Power This was because legislative Locke, bodies Montesquieu, lacked the institutional Blackstone, and other competency theorists to of act the with time unity included of within plan, the secrecy, executive or speed power and the control dispatch. over foreign affairs.

Professor Quincy Wright The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers. Quincy Wright, The Control of American Foreign Relations 363 (1922).

Prof. Lou Henkin on Executive Power The executive power... was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone. - Foreign Affairs and the Constitution 43 (1972).

Thomas Jefferson How do we know the Memorandum to President Washington (April 1790) Founding Fathers The transaction of business with foreign accepted this theory of nations is executive altogether; it Executive belongs, then to the Power? head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.

Thomas Jefferson How do we know the Memorandum to President Washington (April 1790) Founding Fathers The transaction of business with foreign accepted this theory of nations is executive altogether; it Executive belongs, then to the Power? head of that department, except as to such portions of it as are specially submitted Because to the Senate. Exceptions they are to be construed strictly. told us so.

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

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

Washington, Madison, and Chief Justice Jay on the Scope of Executive Power (1790) Tuesday, 27 th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first His opinion coincides with Mr. Jay s and Mr. Jefferson s to wit that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution. - 4 Diaries of George Washington 122 (Regents Ed. 1925).

Alexander Hamilton on Executive Power (1793) [A]s 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. 15 The Papers of Alexander Hamilton 39 (Harold C. Syrett ed., 1969).

Thomas Jefferson on Appropriations letter to Secretary of the Treasury Albert Gallatin (19 February 1804) The Constitution has made the Executive the organ for managing our intercourse with foreign nations. From the origin of the present government to this day... it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

Thomas Jefferson on Appropriations Thus, (19 early February Congresses 1804) letter to Secretary of the Treasury Albert Gallatin clearly shared this view that The Constitution has made the Executive the organ for managing foreign our policy intercourse was with a foreign nations. presidential responsibility From the origin of the present government to this day... it has been the uniform opinion and practice that the whole under foreign the fund Constitution. was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

Thomas Jefferson on Appropriations letter to Secretary of the Treasury Albert Gallatin And let s not forget the (19 February 1804) Supreme Court.... The Constitution has made the Executive the organ for managing our intercourse with foreign nations. From the origin of the present government to this day... it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

C.J. Chase in Ex parte Milligan (1866) But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.... Congress cannot direct the conduct of campaigns.... [Deciding to bring up reinforcements from the rear [the surge ] is at the core of command decisions in the conduct of campaigns.]

C.J. Chase in Ex parte Milligan (1866) This passage was quoted with favor by Justice Stevens for the Supreme Court majority in the 2006 Hamdan case. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.... Congress cannot direct the conduct of campaigns.... [Deciding to bring up reinforcements from the rear [the surge ] is at the core of command decisions in the conduct of campaigns.]

C.J. Chase in Ex parte Milligan (1866) This passage was quoted with favor by Justice Stevens for the Supreme Court majority in the 2006 Hamdan case. But neither can the President, in war more than in peace, intrude upon the Congress no more has the power proper authority of Congress, nor to tell the President how to fight Congress wars (e.g., upon no the boots proper on the authority of the ground ) President. than it. does.. Congress to tell the cannot Supreme direct Court the how conduct to decide of campaigns pending cases..... [Deciding to bring up reinforcements from the rear [the surge ] is at the core of command decisions in the conduct of campaigns.]

United States v. Curtiss-Wright Export Corp. on Limits to Congressional Power (1936) Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.

United States v. Curtiss-Wright Export Corp. on Limits to Congressional Power (1936) He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.

Executive Control of Foreign Affairs Haig v. Agee, 453 U.S. 280, 293-94 (1981) The Court also has recognized the generally accepted view that foreign policy was the province and responsibility of the Executive.

Limits on Congressional Power Congress cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the executive. Barenblatt v. United States, 360 U.S. 109 (1959).

Force Short of War (United States v. Verdugo-Urquidez, 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.

SFRC Chairman J. William Fulbright on Executive Preeminence in Foreign Policy (1959) This broad consensus The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is prevailed in all three clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs which the Constitution does not vest elsewhere in clear terms. He possesses sole authority branches until the Vietnam War became to communicate and negotiate with foreign powers. He controls the external aspects of the Nation s power, which can be moved by his will alone the armed forces, the diplomatic corps, the Central Intelligence Agency, and all of the vast executive apparatus. unpopular.

SFRC Chairman J. William Fulbright on Executive Preeminence in Foreign Policy (1959) The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs which the Constitution does not vest elsewhere in clear terms.

The Power of Congress to Declare War A 21 st Century Anachronism?

Declare War was a term of art from the Law of Nations Formal Declarations of War were associated with all-out aggressive wars, which have been illegal since at least the UN Charter was adopted in 1945.

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

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.]).

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

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

The type of War associated with formal Declarations Alberico of War was Gentili outlawed by on Kellogg-Briand Treaty and the UN Charter. Is that part Declarations of Clause 11 now an of anachronism War as well? Article I, Section 8, Clause 11 of t reads: IS THE POWER TO DECLARE WAR AN ANACHRONISM TODAY? [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;....

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

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? But no nation in the world has WAR Declarations AN ANACHRONISM of War TODAY? clearly issued a formal [W]hen Declaration Article I, Section war is undertaken of 8, War Clause since 11 of the for the World Constitution reads: purpose War II. of necessary defence, the 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;....

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

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.

Additional Reading 34 Va. J. Int l L. 903 (1994).

Operations in Libya (2011)

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

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.

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)]

Libya was Lawful The Libya operation was clearly authorized by UNSC Resolution 1973 of 17 March 2011. It flagrantly violated the 1973 War Powers Resolution, but at John Marshall told us in Marbury v. Madison, An act of the legislature repugnant to the Constitution is void.... We can discuss further during Q&A.

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

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.

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

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.

The 2001 AUMF Seems Clearly Who 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.

The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of [T]he President is authorized to use all necessary and those 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. organizations

The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of [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. organizations?

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?

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 of organization cultural planned, and authorized, religious sites, committed, and greatly or aided undermining 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 18. Observes that ISIL 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.?

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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 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....

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 those appropriate force against those [T]he nations, President is 1.I don t think organizations, 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 2.Sadly, I terrorist don t think attacks it is likely that occurred to happen 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....

What About Last Month s SLCM Attacks on Syria?

What About Last Week s SLCM Attacks on Syria? The strikes had nothing to do with declaring war on Syria. This was force short of war as presidents have done since at least the days of Jefferson. We can discuss the international law basis during Q&A if you like.

Senate Majority Leader IF TIME George Mitchell (1988) Although portrayed as an effort to fulfill not to alter, The amend or War adjust the Powers intent of the framers of the U.S. Constitution, the War Powers Resolution actually expands.... Congress authority beyond the power to declare war to the power to limit troop deployment in situations short of war. By enabling Congress to require by its own inaction the withdrawal of troops from a situation of hostilities, the resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief.

Senate Majority Leader George Mitchell (1988) Although portrayed as an effort to fulfill not to alter, amend or adjust the intent of the framers of the U.S. Constitution, the War Powers Resolution actually expands Congress authority beyond the power to declare war to the power to limit troop deployment in situations short of war. By enabling Congress to require by its own inaction the withdrawal of troops from a situation of hostilities, the resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief.

Senate Majority Leader George Mitchell (1988) [T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress power to control the Armed Forces in situations short of war.... The War Powers Resolution... threatens... the delicate balance of power established by the Constitution. Congressional Record, 19 May, 1988.

Senate Majority Leader George Mitchell (1988) I could not [T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress power to control the Armed Forces in situations short of war and because have it potentially said undermines our ability to effectively defend our national interests. that better. The War Powers Resolution therefore threatens not only the delicate balance of power established by the Constitution. It potentially undermines America s ability to effectively defend our national security. Congressional Record, 19 May, 1988.

National War Powers Commission In July 2008 the bipartisan National War Powers Commission unanimously concluded the War Powers Resolution is UNCONSTITUTIONAL and should be REPEALED.

I eagerly await your questions

I eagerly await your questions I always like to reserve the first question for someone who is really upset....

Possible Questions Why Korea, Vietnam, Grenada, Lebanon, Nicaragua, etc. were all legal under the Constitution and international law. How congressional usurpation of presidential power contributed to 9/11.