Obama's Wrong about Unilateral Military Action—Just Ask Abraham Lincoln
Adler is James A. McClure Professor at the University of Idaho, where he serves as Director of the James A. and Louise McClure Center for Public Policy Research and holds a joint appointment in the Department of Political Science and the College of Law, in which he teaches constitutional law.
The one hundred fiftieth anniversary of the firing on Fort Sumter has triggered renewed interest in the constitutional issues that emerged during the Civil War. The examination has been anything but antiquarian; indeed, from coast to coast, participants in discussions and debates have wondered at the lessons and implications of the Civil War for constitutional government, American institutions, the management of national security crises and the war on terror and, particularly, executive power. The Civil War continues to resonate in our collective consciousness in a manner that surpasses our interest in the other great wars that have engulfed and defined our nation.
On March 21, President Barack Obama informed Congress that, two days earlier, U.S. forces, “at my direction,” had launched military operations against Libya to “assist an international effort authorized by the United Nations Security Council.” President Obama later announced at a news conference that Libyan leader, Moammar “Qaddafi needs to go.” Over the next several weeks, U.S. forces engaged in a series of strikes against Libyan air defense systems and military airfields for the purpose of establishing a no-fly zone.
Despite denials from the administration’s legal advisers, President Obama, by any measurement—legal or historical—had unilaterally initiated war against a sovereign state. In this act, he violated the constitutional principles that he had advanced in a December 2007 interview with Boston Globe reporter Charlie Savage. Obama was asked about the circumstances under which a president might have the constitutional authority to bomb Iran without seeking authorization from Congress. Obama stated, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” On June 15, the Obama administration submitted to the House of Representatives a thirty-two-page memo in which it asserted a unilateral executive power to initiate military hostilities in Libya. “The President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.”
Lincoln would have been sharply critical of his admirer’s assertion of a unilateral executive power to initiate military hostilities. In the course of his distinguished political career, Lincoln consistently rejected the concept that the president had the power to initiate war. He understood that the Constitution vests in Congress the sole and exclusive authority to wage war on behalf of the American citizenry.
First, in 1847, as a freshman member of Congress, Lincoln voted with the majority of the House of Representatives to censure President James K. Polk for “unnecessarily and unconstitutionally” initiating the Mexican War. Like his colleagues, Lincoln believed that Polk had dissembled in his report to Congress, deliberately misstating the facts that surrounded the military clash between Mexican and American forces and the location where American blood had been spilled. Polk had claimed that American life had been lost on American property, an assertion critical to the determination of whether Polk had violated the Constitution. As he explained in the well of the House, Lincoln wanted to “obtain a full knowledge of the facts” on the issue of “the particular spot on which the blood of our citizens was so shed,” to determine whether that “spot” was on American soil. While the House never acted on Lincoln’s “Spot Resolutions,” they nevertheless underlay the Whig position that Polk had usurped the war power—congressional authority to initiate war—when he unconstitutionally commenced the war against Mexico, rather than repelling an invasion of the United States, authority for which the president possessed under the Constitution. In his floor speech, Lincoln declared that Polk had unconstitutionally “plunged” the nation “into this war,” and had sought cover in false and inconsistent claims. Polk, Lincoln observed,” talked like an insane man.”
In Lincoln’s subsequent letters to his law partner William Herndon, he famously denounced Polk’s claims as lies, and provided a detailed analysis of the reasons why the framers of the Constitution had granted to Congress, not the president, the authority to make decisions on matters of war and peace. In a February 15 letter to Herndon, he emphasized the fact that the framers had rejected the English model that exalted monarchical prerogatives, including plenary executive authority to initiate war. In the United States, Lincoln explained, the president possessed the authority to defend the country if it were invaded. But that constitutional principle did not apply in the war with Mexico since he denied that the “spot” on which American blood had been shed was not on American soil. As a consequence, Polk had usurped the power of Congress to decide for war.
Lincoln then recalled the framers’ rationale for withholding from the president the authority to initiate war. “Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion,” Lincoln wrote, “and you allow him to do so whenever he may choose to say he deems it necessary for such purpose—and you allow him to make war at his pleasure. Study to see if you can fix any limit to his power in this respect….” Lincoln reminded Herndon that the Constitution vests the war power in Congress because, across the centuries, kings had been “involving and impoverishing their people in wars,” under the pretense that it was in their interest. Thus, Lincoln concluded, in language that echoes the words of James Wilson to his colleagues in the Pennsylvania State Ratifying Convention, the framers designed the Constitution so that “no one man should hold the power of bringing this oppression upon us.”
Lincoln’s understanding of the war power underwent no revision when he became president. In the Prize Cases of 1863, the Supreme Court upheld Lincoln’s blockade of Southern ports. While advocates of expansive presidential power often enlist this case in their cause, it is to be emphasized that Lincoln, as the Court declared, was acting in his capacity as Commander in Chief to repel what was, in effect, an invasion. Lincoln made no claim of authority to initiate war. Indeed, in oral argument before the Court, Richard Henry Dana, on behalf of President Lincoln, acknowledged that Lincoln’s actions had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”
Lincoln never entertained a theory of unilateral executive power to wage war. He rightly understood that the framers of the Constitution had rejected it, root and branch, and vested the war power in Congress. Accordingly, President’s Obama’s assertion of a presidential power to initiate hostilities finds no support in the views of the president whom he most admires.
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