Robert F. Turner: Exercising Congress’s Constitutional Power to End a War





[Professor Robert Turner is Associate Director, Center for National Security Law , University of Virginia.]

Mr. Chairman and members of the Committee. It is a great pleasure to appear before you once again this morning. The issue before us is one of great importance to the nation and to the principle of the rule of law. As this hearing will demonstrate, it is also an issue about which honest and able scholars can profoundly disagree.

Introduction

Because I think it is so critical to these issues, I will spend a few minutes at the start addressing the original understanding of the constitutional paradigm regarding the separation of powers between Congress and the President related to war and foreign affairs. Secondly, on the basis of that understanding, I will argue that the Constitution gave the President a considerable amount of discretion in these areas that was not intended to be checked by either Congress or the Judiciary — including what John Jay described as ‘the business of intelligence” and the conduct of war and diplomacy.

This is not to suggest that Congress and the Senate don’t have important roles relative to these areas. The commander-in-chief power itself is a conditional authority, and until Congress “raises and supports” an army or ‘provides and maintains” a navy, the President has no military force to “command.” One-third-plus-one of the Senate can exercise a “negative” over presidential ratification of a treaty, and a majority can block the appointment of diplomats and military officers. The President can spend no money from the Treasury without “Appropriations made by law.” Each of these powers is, and was intended by the Founding Fathers to be, important. So my third point is that, in virtually any large-scale and sustained military operation, the Constitution effectively vests Congress with the constitutional power to end a war—as the title of today’s hearing suggests. By refusing new appropriations and rejecting requests for new troops and supplies, Congress can virtually assure that America military forces and/or allies who rely upon our assurances will be defeated and our enemies will prevail on the battlefield.

My fourth point is that the Founding Fathers viewed the powers of Congress and the Senate related to war and foreign affairs as “exceptions” to the general grant of “executive Power” vested in the President; and, as such, these powers were intended to be strictly construed. Neither Congress nor the President may properly exercise their own powers in a manner that usurps the constitutional authorities of the other, and when Congress attempts to control decisions vested by the people in the discretion of the President it becomes a “lawbreaker.” In candor, in recent decades I have witnessed far more lawbreaking by Congress in the national security realm than by the President.

My final point, Mr. Chairman, may be the most important one: Consider the consequences. Even if Congress has the constitutional power to cut off food and ammunition to our forces at war and ultimately guarantee a victory in Iraq for those who have been killing our forces and engaging in the wholesale and brutal slaughter of the people of Iraq – be they members of al Qaeda in Iraq, followers of pro-Iranian factions, or other radical groups – I beseech you to think through the wisdom of taking such action. There is a reason the Framers vested considerable discretion in the President in this area, and unconstitutional efforts by Congress to usurp that discretion since 1970 have led to the unnecessary slaughter of millions, the consignment to totalitarian tyranny of tens of millions, the needless deaths of large numbers of our own military forces, and quite possibly contributed to the slaughter of 3000 innocent people on September 11, 2001.

I recognize that these are strong and serious charges, but they are not hyperbole. I hope you will bear with me as I add some substance to this outline and endeavor to document the points I have made.


The Original Understanding of the
War/Foreign Affairs Constitutional Paradigm

I submit it is important to start this inquiry by examining the original understanding of the Constitution and its interpretation between 1787 and about 1970, when—during the heated national debate over the war in Vietnam—America virtually suffered a hard drive crash here at home. Understandings about constitutional separations of powers that had historically been embraced by all three branches of government were suddenly forgotten by almost everyone, and a new generation of scholars and politicians began looking anew at the constitutional text in search of new theories and paradigms.

Seeking to ascertain the original understanding is hardly the only step in constitutional interpretation, but it is nevertheless an important part of the process. Words are an imperfect instrument for conveying ideas, and sometimes outside of context words can be ambiguous. Even more important, some words used by the Framers of our Constitution have over the years lost all or part of their original meaning. Thus, if we were to learn that a prominent supporter of the Constitution in 1787 later declared that it was an “awful” document, our understanding of his sentiments would be furthered by the knowledge that in the eighteenth century the word “awful” meant something that filled one with awe or was awe inspiring.

Terms like “declare War” and “executive Power” had clear meanings to the authors of our Constitution, who as a group were remarkably well-read men and were familiar with the writings of Grotius, Vattel, Lock, Montesquieu, and Blackstone. And when we seek to understand such language without comprehending those meanings we run a great risk of going astray. To the authors of our Constitution, the term “militia” referred to the able-bodied men of military age in each state who were subject to being called up to perform their civic duty in the event of foreign invasion, rebellion, or a similar contingency. Yet how many “experts” today, in ignorance of that reality, contend that the Second Amendment’s guarantee of a “well-regulated militia” was intended merely to permit states to maintain an armory for use by its “national guard”?

So I hope you will bear with me a bit while I rewind the clock to the late eighteenth century and examine some of the writings of men like Thomas Jefferson, George Washington, John Marshall, and the three authors of the Federalist Papers to help us understand the constitutional text. In particular, it is imperative that we understand that they interpreted the term “executive Power” in Article II, Section 1, as that term was used by writers like John Locke, Montesquieu, and William Blackstone.

My academic interest in these subjects was first sparked more than four decades ago, when as an undergraduate I heard a lecture by the great Quincy Wright. Professor Wright, as you may know, served as President of the American Society of International Law and both the American and the International Political Science Association. His 1922 treatise on The Control of American Foreign Policy remains a classic in the field. And in that volume he observed that “when 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.”

Fifty years later, writing in Foreign Affairs and the Constitution, Columbia Law School Professor Louis Henkin added: “The executive power . . . was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone.” But that observation doesn’t tell us very much unless we are familiar with the separation-of-powers writings of those great scholars.

Let us look first at John Locke, who a century before our Constitution went into force coined the term “federative power” in his Second Treatise on Civil Government to denote the control of decisions involving “war, peace, leagues, and alliances.” Locke placed the federative power in the same hands as the “executive” power. The gist of his arguments was that the successful management of war and foreign affairs required for its success the attributes of unity of plan, secrecy, and speed and dispatch. And since deliberative legislative assemblies are inherently lacking in those competencies, and further are unable to anticipate all of the developments that might occur on a battlefield or in foreign negotiations, these matters must of necessity be entrusted to the prudence of the executive to be managed for the common good. Consider this excerpt:

These two Powers, Executive and Federative, though they be really distinct in themselves, yet one comprehending the Execution of the Municipal Laws of the Society within its self, upon all that are parts of it; the other the management of the security and interest of the publick [sic] without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive; and so must necessarily be left to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick [sic] good. . . . [W]hat is to be done in reference to Foreigners, depending much upon their actions, and the variation of designs and interest, must be left in great part to the Prudence of those who have this Power committed to them, to be managed by the best of their Skill, for the advantage of the Commonwealth.

Other publicists whose writings were highly influential on the Founding Fathers characterized foreign affairs (including war) as a component of the “executive” power. In 1748, Montesquieu — characterized by James Madison in Federalist No. 47 as “[t]he oracle who is always consulted and cited” on the subject of separation of powers — reasoned that “[i]n every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.” He explained that by the second of these “executive” powers, the prince or magistrate “makes peace or war, sends or receives embassies, establishes the public security, and provides against invasion.”

Similarly, in the late 1760s, Sir William Blackstone published his four-volume Commentaries on the Laws of England, and observed that the King of England “is and ought to be absolute” in his “executive” prerogative with respect to “this nation’s intercourse with foreign nations,” adding that with respect to treaties, pardons, and “this nation’s intercourse with foreign nations” there is “no legal authority that can either delay or resist him” save as expressed in the Constitution.

[T]he executive part of government . . . . is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation . . . . With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. . . . What is done by the royal authority, with regard to foreign powers, is the act of the whole nation . . . .

And if you think such a description has nothing to do with the American Executive, consider this 1800 statement by Representative John Marshall (Fed.-Va.) “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . He possesses the whole Executive power. . . . In this respect the President expresses constitutionally the will of the nation.”

One of the many myths that we often hear about the American Revolution is that our ancestors were rejecting the British constitutional system. But when Thomas Jefferson wrote his powerful Summary View of the Rights of British America in 1774, his complaint was not that the British Constitution was inherently bad, but rather that it had been corrupted and abused by both King and Parliament so as to deny the colonial subjects their fundamental rights. Few, if any, American leaders were more hostile to Great Britain than Jefferson. Yet, in a letter to John Adams written shortly after the Federal Convention had adjourned, Jefferson acknowledged that the English Constitution was “better than all which have proceeded it . . . .” Pulitzer Prize-winning historian Professor Gordon S. Wood, of Brown University, observed in The Creation of the American Republic 1776-1787 that the American colonists “revolted not against the English constitution but on behalf of it.”

Why am I so certain the Founding Fathers viewed foreign affairs as a component of the “executive Power” vested in the President in Article II, Section 1, of their new Constitution? Because they discussed it repeatedly. During the First Session of the First Congress, Representative James Madison introduced a bill to establish a Department of Foreign Affairs. It was a very simple bill that could fit on a single page, essentially declaring that the department was hereby established and was to be headed by a Secretary who was to conduct the business of said department as directed by the President. As Johns Hopkins scholar Charles Thach explained in his 1922 classic, The Creation of the Presidency 1775-1789:

The sole purpose of that organization was to carry out, not legislative orders, as expressed in appropriation acts, but the will of the executive. In all cases the President could direct and control, but in the ‘presidential’ departments [war and foreign affairs] he could determine what should be done, as well as to how it should be done. …Congress was extremely careful to see to it that their power of organizing the department did not take the form of ordering the secretary what he should or should not do.

During the debate on Madison’s bill, a question arose about who could remove the Secretary once appointed with the advice and consent of the Senate. Madison carried the day by observing that the Constitution has vested the nation’s “executive power” in the President, and the Senate had only been joined in the appointment and not the removal part of that process. As Madison explained his view (which prevailed in both the House and the Senate) to a colleague from the Philadelphia Convention in reporting on the important debate: “[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. . . .”

I would submit that this is an important precedent, and that the same logic that narrowly construed the Senate’s role in executive appointments might also have relevance in the debate on the scope of the power “to declare War.” For, as I will demonstrate, that power was also recognized as an “exception” to the President’s general grant of executive power.

John Jay was by far America’s most experienced diplomat, and not surprisingly George Washington tapped him to be the new nation’s first Secretary of Foreign Affairs. But Jay had also served as Chief Justice of New York, and he persuaded the President to appoint him Chief Justice of the United States – a move that opened the way for Thomas Jefferson, who was just returning from his post as U.S. Minister to France, to be named Secretary of Foreign Affairs. (The department was soon renamed “Department of State” when additional duties, like keeping the national seal and issuing commissions to executive officers and judges, were attached to the job.)

Soon after taking office, Jefferson was asked by President Washington where the Constitution has vested all of the decisions regarding foreign affairs that were not expressly addressed in the text of the document. Jefferson provided this response:

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 . . . .
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.

One week later, President Washington made this entry in his diary:

“Tuesday, 27th [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.

So we have Thomas Jefferson, George Washington, America’s first Chief Justice, and two of the three authors of the Federalist Papers clearly on record as believing that the business of foreign affairs was vested exclusively in the President as part of the “executive Power” contained in Article II, Section 1 save for those narrowly construed “exceptions” clearly vested in Congress or the Senate. But, obviously, there were sharp differences of opinion among the Founding Fathers on many issues, so it is useful to consider the views of Jefferson’s key rival at the time and the third contributor to the Federalists. Alexander Hamilton, too, addressed this issue – most clearly in his first Pacificus essay in 1973:

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.
While, therefore, the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations . . . enjoin in the intercourse of the United States with foreign Powers.

This might be an appropriate time to make another observation. On August17, 1787, James Madison and Elbridge Gerry (who later served as Madison’s Vice President) moved during the Constitutional Convention to deny Congress the power to “make” war and substitute instead the power to “declare” war. There are some differences in the surviving notes on this debate (which was conducted under rules of strict secrecy), but the final vote appears to have been 8-to-1 in favor of the Madison-Gerry motion, with only New Hampshire in the end voting in the negative. And a key argument in the debate for denying Congress the power to “make” war was made by Rufus King — that “‘make’ war might be understood to ‘conduct’ it which was an Executive function.”

Accepting that the power to “declare War” was an exception to the President’s general grant of “executive” power, and thus was to be construed “strictly,” it is worth noting that “declare War” was a term of art from the law of nations that had a well understood and rather narrow meaning at the time the Constitution was written. The Framers understood the concept of “force short of war,” and the leading publicists of the era associated formal declarations of war only with what today we would call all-out “aggressive” wars. In the eighteenth century, every sovereign State had the right to resort to self-help measures to protect itself as well as to blatant armed international aggression to further its perceived self-interest. The sovereign State was the supreme entity, there being no international legislature to establish rules, executive to enforce them, or judiciary to resolve disputes among nations. States were therefore only constrained by the treaties and voluntary customary practices to which they voluntarily consented to be bound.

There is some confusion inherent in the term “offensive,” as in jus ad bellum it is distinguished from going to war for “defensive” purposes (i.e., in today’s parlance launching an “aggressive” war), while under jus in bello it includes offensive counter-attacks like Douglas MacArthur’s 1950 Inchon Landing in Korea or Norman Schwarzkopf’s brilliant “left hook” in the early days of Operation Desert Storm. Neither of those “offensive” maneuvers changed the UN Security Council-authorized forces led by American generals into the “aggressors” for purposes of establishing the lawfulness of the conflict. The point I am making is that when the term “offensive” is used in a jus ad bellum context, it is synonymous with “aggressive” – and such military operations have been illegal in theory since the 1922 Kellogg-Briand Treaty and in reality since the adoption of the UN Charter in 1945.

Thus, I would submit that, in terms of international law, the kinds of conflicts historically associated with formal declarations of war are now blatantly unlawful. No country has clearly issued a “declaration of war” since the 1940s, and in that sense the congressional power to “declare War” may today be as much an anachronism as the power conveyed in the same clause of Article I, Section 8, of the Constitution empowering Congress to “grant Letters of Marque and Reprisal . . . .”

In discussing the meaning of a “declaration of war” in his 1620 classic, De Jure Belli ac Pacis, Hugo Grotius – often described as the “father” of modern international law, explained “no declaration is required when one is repelling an invasion, or seeking to punish the actual author of some crime.” This was consistent with the writings of sixteenth century Italian jurist Alberico Gentili, who reasoned: “when war is undertaken for the purpose of necessary defence, the declaration is not at all required.” The most influential international law publicist at the time of the Federal Convention was certainly Switzerland’s Emmerich de Vattel, whose writings were often cited by Jefferson and by Hamilton and John Marshall as well. In discussing formal declarations of war, Vattel asserted “[h]e who is attacked and only wages defensive war, needs not to make any hostile declaration . . . .”

Advocates of broad congressional war power are fond of quoting a September 1789 letter from Thomas Jefferson to James Madison, of which there are two extant versions. In the copy actually sent to Madison, Jefferson wrote: “We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.” A slightly different version is found in Jefferson’s own files – presumably the original – in which the power “of letting him loose” is replaced by “of declaring war.”

What the champions of legislative war powers miss here is that Jefferson is conceding that, by its nature, the power to “declare war” is “executive” in character. Why else would he speak of “transferring” this power to Congress? Under the Articles of Confederation, there was no national executive and the Continental Congress was invested with the full power “to make war.” So the most logical explanation for Jefferson’s wording is that, like Locke, Montesquieu, and other writers of the time, he recognized that the entire business of “war” was by nature “executive” in character. Assuming this is true, then his maxim (widely shared by others at the time) that “exceptions” to the President’s grant of the nation’s “executive” power that were vested in the Senate or Congress were to be construed strictly should be applied.

This leads to yet another important separation of powers issue. Both the Philadelphia debates and the state ratification debates are replete with concerns that the power of the “sword” and the power of the “purse” must be kept separate. Yet if Congress usurps the President’s executive and commander-in-chief power to control the movement of troops (the “sword”), it will violate that fundamental principle because it already possesses the power of the “purse.”

There is yet another greatly misunderstood statement by Jefferson that is cherished by scholars who seek authority for a broad interpretation of the “declare War” clause. In his first state-of-the-union address in December 1801, President Jefferson reported on an encounter between the American schooner Enterprise and a Tripolitan cruiser in the Mediterranean. He told Congress that, because Congress had not authorized war, the American ship was only permitted to defend itself when attacked and then had to let the enemy ship go free. I don’t have time to dwell on the details of this incident here, beyond noting that Jefferson grossly misstated the facts of the case and referring interested readers elsewhere for a detailed discussion. We now have both a valuable compilation of historical naval records on the Barbary Wars and Jefferson’s hand-written notes from his first cabinet meeting, and it is absolutely clear that Jefferson and his cabinet agreed on March 15, 1801, to send two-thirds of the new American Navy to the Mediterranean with instructions that — if upon arrival at
Gibraltar they confirmed the rumors that Barbary Pirates had declared war on America — they were to “distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce & chastise their insolence—by sinking, burning or destroying their ships & Vessels wherever you shall find them.” I would add that Jefferson does not appear to have even informed Congress of this decision (although the deployment was reported in the newspapers and there was no effort to keep it secret), and when he did finally refer to the deployment more than six months after the ships had departed Norfolk there appear to have been no expressions of concern from Congress.

That early Congresses shared the understanding that the conduct of war and the business of diplomacy and intelligence were the exclusive province of the Executive is clear from the deference they showed in these areas. Thus, the first appropriations bill for foreign intercourse – enacted by Congress on July 1, 1790 – provided that:

“[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify, and cause a regular statement and account thereof to be laid before Congress annually.”

The broad congressional deference to the President during the first fifteen years of our history was captured by President Jefferson in a February 19, 1804, letter to Treasury Secretary Albert Gallatin:

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.

Until about the time of World War II, there were very few statutes that even arguably constrained the President’s discretion in foreign affairs or the conduct of war. As America began playing a greater role on the world stage, more powers of Congress involving things like foreign trade and assistance came into play the number of statutes increase – most of which were largely drafted by the Executive Branch. But the basic understanding that the Constitution entrusted not only the execution of foreign policy to the President, but the formulation of that policy as well – subject to the Senate’s negative over a completed treaty – continued until the time of the Vietnam War. Thus, in a speech at Cornell Law School in 1959, Senate Foreign Relations Committee Chairman J. William Fulbright explained:

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.” He possesses sole authority 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.

Let me close this first section by observing that the Supreme Court has also recognized the President’s special responsibilities in these areas. Consider, for example, Chief Justice William Howard Taft’s lengthy discussion of early views of the “executive Power” in Myers v. United States in 1926, striking down the Tenure in Office Act that had led to the 1868 impeachment of President Andrew Johnson:

Washington's first proclamation of neutrality in the war between France and Great Britain. . . . was at first criticized as an abuse of executive authority. It has now come to be regarded as one of the greatest and most valuable acts of the first President's Administration, and has been often followed by succeeding Presidents. Hamilton's argument was that the Constitution, by vesting the executive power in the President, gave him the right, as the organ of intercourse between the Nation and foreign nations, to interpret national treaties and to declare neutrality. He deduced this from Article II of the Constitution on the executive power, and followed exactly the reasoning of Madison and his associates as to the executive power upon which the legislative decision of the First Congress as to Presidential removals depends, and he cites it as authority. . . .

Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, . . . [and]; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive are limitations to be strictly construed, and not to be extended by implication . . . .

Certainly the most cited foreign affairs case is United States v. Curtiss-Wright Export Corp., in which the Court declared:

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. 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. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." . . . .
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.



Dean Harold Koh’s “Shared Powers” Paradigm
and the Effect of Youngstown on Curtiss-Wright

Before leaving this theoretical section, let me briefly address the very popular views of Yale Law School Dean Harold Hongju Koh – an old and able friend with whom I have shared many platforms over the years – in his prize-winning 1990 volume The National Security Constitution. (I have recently written on this issue at greater length, if anyone is interested. )

Like Lou Fisher and many others, Harold favors the “shared powers” concept of foreign affairs. I’m not fond of the term, not because I don’t agree that many decisions in foreign affairs ultimately require the participation of more than one branch but because the specific role of each branch tends to be unique. The President “nominates” and “appoints,” while the Senate may either consent or veto the person nominated. The President has the exclusive power to speak to foreign governments on behalf of the nation, but before a treaty he has negotiated may bind the United States as conventional international law it must be approved by two-thirds of those Senators present and voting. I think it best not to merge these distinct roles with language that might suggest that the actual functions of each branch are interchangeable or “shared” in some way. It is not that Harold and Lou are necessarily wrong in this explanation, but rather that I fear the use of the term “shared powers” may promote sloppy thinking by readers less knowledgeable about the actual workings of government.

My real quarrel with Harold involves his suggestion that there is some struggle going on between the Supreme Court’s landmark 1936 Curtiss-Wright opinion and the concurring opinion of Justice Robert Jackson in the 1952 Steel-Seizure case (Youngstown Sheet & Tube Co. v. Sawyer). I think this argument is candidly silly, and the two opinions when properly understood are not in conflict. But before turning to that, let me quoted from Harold’s highly-acclaimed volume:

At the Republic’s birth, the Framers deliberately drafted a Constitution of shared powers and balanced institutional participation, fully aware of the risks that arrangement posed to the nation’s international well-being. By mandating that separated institutions share powers in foreign as well as domestic affairs, the Framers determined that we must sacrifice some short-term gains for speed, secrecy, and efficiency in favor of the longer-term consensus that derives from reasoned interbranch consultation and participatory decision making. Although in the early years of the Republic, all three branches condoned a de facto transformation of the original National Security Constitution from a scheme of congressional primacy to one of executive primacy, they never rejected the concept of power sharing and institutional participation . . . .

He then goes on the explain how Curtiss-Wright radically changed the paradigm:

In 1936, Curtiss-Wright’s dicta boldly asserted the alternative vision of unfettered presidential management. But even as the Cold War raged, the 1947 National Security Act, Youngstown, and finally the post-Vietnam era framework statutes (e.g., War Powers Resolution) definitively rejected that vision as America’s constitutional model for dealing with the outside world. Vietnam (and Watergate, as well, to the extent that it arose from Vietnam) then taught that even in a nuclear age, America would not conduct globalism at the price of constitutionalism. It is therefore ironic that the Curtiss-Wright model should now resurface . . . .



I was particularly amused by this passage of the Koh book:

Critics on the right, in contrast, argue that to preserve our activist foreign policy, we must revise constitutionalism, abandoning the Youngstown vision in favor of Curtiss-Wright. Yet because many of these same critics also espouse the constitutional jurisprudence of original intent, they are forced to engage in revisionist history to contend that the Framers did not originally draft the Constitution to promote congressional dominance in foreign affairs.

I think what I enjoyed the most was that, of the ten or so “[c]ritics on the right” he footnotes to this passage, he listed me first – well ahead of such distinguished scholars as former Yale Law School Dean Eugene Rostow or my colleague John Norton Moore. But, flattery aside, I’ve never been able to get Harold to come up with statements from men like Washington, Jefferson, Madison, Hamilton, or Jay supporting his theory that foreign and domestic affairs involved the same basic “sharing of powers.” I hope I’ve demonstrated in some detail the broad consensus among these key Founders that Congress and the Senate were to be excluded from many decisions in the foreign affairs realm, and the powers they were given that were exceptions to the broad grant of “executive Power” to the President were to be construed strictly. In contrast, without any effort to document his assertion, Harold simply tells his reader “the first three articles of the Constitution expressly divided foreign affairs powers among the three branches of government, with Congress, not the president, being granted the dominant role. Elsewhere in the book he asserts:

This structural vision of a foreign affairs power shared through balanced institutional participation has inspired the National Security Constitution since the beginning of the Republic, receiving its most cogent expression in justice Robert Jackson’s famous 1952 concurring opinion in Youngstown. Yet throughout our constitutional history, what I call the Youngstown vision has done battle with a radically different constitutional paradigm. This counter image of unchecked executive discretion has claimed virtually the entire field of foreign affairs as falling under the president’s inherent authority. Although this image has surfaced from time to time since the early Republic, it did not fully and officially crystallize until Justice George Sutherland’s controversial, oft-cited 1936 opinion for the Court in United States v. Curtiss-Wright Export Corp. As construed by proponents of executive power, the Curtiss-Wright vision rejects two of Youngstown’s central tenets, that the National Security Constitution requires congressional concurrence in most decision on foreign affairs and that the courts must play an important role in examining and constraining executive branch judgments in foreign affairs.

One wonders if Harold has carefully read Justice Jackson’s Youngstown concurrence, or the majority opinion in the case by Justice Black. For both went to considerable lengths to emphasize that they were not endeavoring to constrain the powers of the President in dealing with the external world. At issue in that case was whether the President’s “war powers” empowered him to order the Secretary of the Interior to seize domestic steel mills – the private property of American citizens – in order to prevent a labor strike that might affect the availability of steel for the Korean War. (And keep in mind that the Fifth Amendment Guarantees that “[n]o person shall . . . be deprived of . . . property, without due process of law . . . .”)

There is no reason to believe that justice Jackson was in any way hostile to Curtiss-Wright as the appropriate foreign policy paradigm. On the contrary, just two years before Youngstown, Justice Jackson wrote for the majority in Johnson v. Eisentrager:

Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. . . . The issue . . . involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. United States v. Curtiss-Wright Corp . . . .

And consider this excerpt from Justice Black’s majority opinion in Youngstown:

The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces had the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.

Similarly, Justice Jackson in Youngstown was very deferential to presidential power with respect to the external world:

[N]o doctrine that the Court could promulgate would seem to be more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often is even unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign adventure. . . .
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. . . . Such a limitation [the Third Amendment] on the command power, written at a time when the militia rather than a standing army was contemplated as a military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy . . . .

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. . . . What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize person or property because they are important or even essential for the military or naval establishment.

Even more fundamentally, in Youngstown Justice Jackson actually cited Curtiss-Wright as authority, but then explained: “That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories . . . .” And as both Justice Black and Jackson repeatedly emphasized, Youngstown was an “internal affairs” case.

That is also the consensus of scholars like Professor Louis Henkin, who in Foreign Affairs and the Constitution noted:

Youngstown has not been considered a “foreign affairs case”. The President claimed to be acting within “the aggregate of his constitutional powers,” but the majority of the Supreme Court did not treat the case as involving the reach of his foreign affairs power, and even the dissenting justices invoked only incidentally that power or the fact that the steel strike threatened important American foreign policy interests.

Consider also the reaction of Justice Rehnquist, joined by Chief Justice Burger and two other members of the Court, in the 1979 dispute over President Carter’s constitutional power to terminate the mutual security treaty between the United States and Taiwan. Senator Goldwater had urged the Court to decide the case on Youngstown, but Rehnquist wrote:

The present case differs in several important respects from Youngstown . . . cited by petitioners as authority both for reaching the merits of this dispute and for reversing the Court of Appeals. In Youngstown, private litigants brought a suit contesting the President’s authority under his war powers to seize the Nation’s steel industry, an action of profound and demonstrable domestic impact. . . . Moreover, as in Curtiss-Wright, the effect of this action, as far as we can tell, is “entirely external to the United States, and [falls] within the category of foreign affairs.

Others may disagree, but my own sense is that The National Security Constitution is not a particularly useful contribution to the literature in this highly-specialized field. Indeed, my strong sense is that when the book was written Koh was totally unaware of the materials I have cited above from Washington, Jefferson, and all three authors of the Federalist papers. I may disagree as strongly with Lou Fisher on occasion, but he is a serious scholar in this area who has done his homework.


“Unchecked” Presidential Discretion
in the Conduct of War and Foreign Affairs


I have already noted John Jay’s explanation in Federalist No. 64 that the new Constitution had left the President “able to manage the business of intelligence as prudence may suggest,” and the Supreme Court’s 1936 declaration that “Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” These are clear references to exclusive and unchecked presidential power.

One of the great myths in the post-Vietnam separation-of-powers debates is the idea that Congress and the Judiciary are supposed to be able to “oversee” and “check” every presidential power in a Democracy. I sometimes wonder if modern legislators paid attention in law school during the discussion of the most famous of all cases, Marbury v. Madison. There, Chief Justice Marshall referred to the President’s unchecked constitutional discretion, and used his control over the Department of Foreign Affairs as an example:

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. . . . [A]nd whatever 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. 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. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

It is certainly true, as many have observed, that if neither Congress nor the Judiciary has a check or “negative” over presidential decisions, the risks of abuse of power and the exercise of poor judgment increase. If we allow the President to authorize the military to detain enemy combatants for the duration of hostilities without being charged with a crime or given a trial (which is an accepted part of the Law of Armed Conflict recognized by the Geneva Convention Relative to the Treatment of Prisoners of War and acknowledged by the Supreme Court in the Hamdi case), some innocent people may suffer. But it is even more obvious that by allowing the President to authorize the military to empower a private to use lethal force against someone believed to be an enemy combatant on the battlefield, there is a greater risk of mistakes that could lead to the tragic loss of innocent life. Similarly, occasions arise where the military launches missiles or other high-explosive ordinance against buildings or other structures based entirely upon intelligence information that those structures are being used to house enemy forces — and sometimes that information is inaccurate and innocent people lose their lives. Those lives might be spared if we required the private, or the commander who is about to authorize the firing of a cruise missile or the launching of a Hellfire missile from a Predator drone, to come before Congress or prove beyond reasonable doubt in a court of law that no innocent people will be harmed. Yet few serious people would prohibit our military from making battlefield decisions with the speed and dispatch long recognized to be essential for the effective conduct of military operations.

The Founding Fathers understood that success in war, intelligence gathering, and diplomacy depended on unity of design, secrecy, and speed and dispatch; and they vested authority to make the necessary decisions exclusively in the President save for those limitations clearly established by the Constitution itself – including the power of Congress to control expenditures from the Treasury and the creation of military forces, and a variety of other checks expressly vested in Congress or the Senate.


Congressional and Senate “Negatives”
and Other Powers in these Areas

Others in this hearing will no doubt provide a complete list of all of the powers related to war and foreign affairs that are expressly vested in the Congress or the Senate in Article I, Section 8, and Article II, Section 2, of the Constitution. As I have already acknowledged, many of these are powers of tremendous importance.

I think it is also true that on occasion the Executive Branch fails to recognize some of the more esoteric “exceptions” to the President’s general grant of executive power over foreign affairs. To mention one example, I have no serious doubt that Congress has the constitutional power to pass legislation mandating the humane treatment of detainees during armed conflict. The Constitution expressly gives Congress the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” and to “make Rules concerning Captures on Land and Water . . . .” Yes, those are “exceptions” out of the general “executive” and “Commander in Chief” powers vested in the President, and thus, as already discussed, are to be construed strictly. But I can’t image the Supreme Court not recognizing this power even with a strict construction.

By refusing to create new military forces, rejecting appropriations requests for supplies and equipment for existing forces, and refusing to appropriate new funds for the armed forces, Congress clearly has the power to bring any major armed conflict to an end. The Constitution prohibits the President from spending Treasury funds without appropriations, and wars generally require a great deal of money.

I trust no one in this room would argue that the President may lawfully use the “power” he arguably possesses as Commander in Chief of the Army to order the First Armored Division to seize the gold from the Bullion Depository at Fort Knox and deliver it to the White House for the purpose of converting it to cash on international markets to fund the war in Iraq. One might contend that he has the “power” to accomplish that end, in the sense that – unaware of the ultimate purpose – military officers might well carry out apparently lawful orders to make it happen.

I mention this example, because it is certainly clear that Congress has the “power” – at least until the courts step in – to abuse its control over the nation’s purse strings to deny the President even his salary. To be sure, the Constitution provides that the President “shall receive” a compensation for his services which shall neither be increased nor decreased during his term of office, but before that compensation may be paid there must be an appropriation. And refusing to appropriate money to pay the President’s salary would be an abuse of power and a violation of the oath of office each of you took to support the Constitution. Nothing in the Constitution even arguably gives Congress the power to interfere with decisions involving, to quote Chief Justice Chase again, “the conduct of campaigns,” and deciding how many troops from among those forces “raised” by Congress are necessary to fight a war authorized by Congress – and where and how those forces should be deployed – is at the heart of the President’s constitutional power. This proposition in my view is not arguable.

Reconciling Congressional and Executive
Powers Pertaining to War

As the Supreme Court noted in Curtiss-Wright and many other cases, all constitutional powers “must be exercised in subordination to the applicable provisions of the Constitution.” So one of the issues we need to address this morning is how do we draw the line between the constitutional powers of Congress and those of the President.

Last June in the Hamdan decision, the Supreme Court quoted with favor a portion of Chief Justice Chase’s concurring opinion in what it described as “the seminal case of Ex parte Milligan. Speaking for the majority, Justice Stevens was primarily concerned with presidential power over tribunals, so for our purposes it is useful to include some language that was only partly quoted in Hamdan. Chief Justice Chase wrote:

Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.
The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. 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. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns . . . .

I believe Chief Justice Chase correctly reconciled the relevant powers in this case. And if so, it seems obvious that Congress has no power to tell the President he cannot send another 20,000 or 100,000 troops to Iraq. Any effort to do so in a legally-binding manner would be futile and a further act of congressional lawbreaking.

Senator William Borah on the Power of Congress
to Usurp Constitutional Authority of the President

On the second floor of the Senate corridor to the U.S. Capitol Building there is a statute of Senator William E. Borah, the “Lion of Idaho” who was elected to 6 terms in the Senate and chaired the Foreign Relations Committee for eight years. A progressive Republican who biographers say was “known for his integrity” and independence, Borah is perhaps best known today for his leading role in blocking Senate consent to the ratification of the Versailles Treaty in 1917 that would have brought America into the League of Nations. The official Senate biography of Senator Borah notes that Time magazine once referred to him as the “most famed Senator of the century.” And his views are particularly relevant to today’s hearing, because he was such a strong isolationist and a champion of the constitutional prerogatives of the Senate. He understood that the Senate had a constitutional negative over a presidential decision to ratify a treaty, and in 1917 no Senator was more instrumental in exercising that power. But he also understood that the President had important national security powers that were not subject to congressional veto, and time and again he stood firm on principle.

Consider this excerpt from the Congressional Record of an exchange Senator Borah had on December 27, 1922, with Senator James Reed of Missouri. To place it in context, following the end of World War I President Wilson elected to keep many American troops in Germany to help maintain the peace. President Harding kept them there, and legislators here in Washington were getting angry letters from parents who wanted their sons home now that the war had been won. Both Senator Reed and Senator Borah shared that goal, and this colloquy occurred on the Senate floor:

MR. REED of Missouri. 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.

Mr. REED of Missouri. So do I . . . . Would it not be easier to bring the troops home than it would be to have the proposed [disarmament] conference?

Mr. BORAH. You can not bring them home, nor can I.

Mr. REED of Missouri. We could make the President do it.

Mr. BORAH. We could not make the President do 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 of 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 of Missouri. I wish to change my statement. We can not make him bring them home . . ., but I think if there were a resolution passed asking the President to bring the troops home, where they belong, the President would recognize that request from Congress.

An even more illuminating exchange occurred six years later, during consideration of a naval appropriations bill, when the Foreign Relations Committee chairman had this exchange with Senator John Blaine, a newly elected member from Wisconsin:

Mr. BORAH. Mr. President, the Constitution of the United States has delegated certain powers to the President; it has delegated certain powers to Congress and certain powers to the judiciary. Congress can not exercise judicial powers or take them away from the courts. Congress can not exercise executive power specifically granted or take it away from the President. The President’s powers are defined by the Constitution. Whatever power belongs to the President by virtue of constitutional provisions, Congress can not take away from him. In other words, Congress can not take away from the President the power to command the Army and the Navy of the United States. . . . Those are powers delegated to the President by the Constitution of the United States, and the Congress is bound by the terms of the Constitution.

Mr. BLAINE. Another question. All that the Senator has said in a general way is sound constitutional law, but before there can be any action on the part of any Government unit requiring the expenditure of funds that are in the Public Treasury, or that may be placed in the Public Treasury, Congress must first act and make an appropriation for every essential purpose. That money so appropriated can be used for no other purpose than that designated by Congress, and there is no power that can coerce Congress into making an appropriation. Therefore, Congress’s power over matters respecting the making of war unlawfully, beyond the power of the President outside of the Constitution or within the Constitution, or conducting hostilities in the nature of the war during peace time, can be limited and regulated under the power of Congress to appropriate money.

Mr. BORAH. Of course, I do not disagree with the proposition that if Congress does not create an army, or does not provide for an army, or create a navy, the President can not exercise his control or command over an army or navy which does not exist. But once an army is created, once a navy is in existence, the right to command belongs to the President, and the Congress can not take the power away from him.

After some additional discussion involving other participants, Senator Blaine returned again to his contention that Congress could control the President’s conduct as Commander-in-Chief by using its power over the purse:

Mr. BLAINE. Mr. President, just one other question of the distinguished Senator from Idaho [Senator Borah]. I know that ordinarily he does not hedge. I want to press him just once more to give us the value of his training as a constitutional lawyer. I repeat, assuming that Congress has created an army and has created a navy, after that is all done, then may Congress not limit the uses to which money may be put by the President as Commander in Chief in the operation and in the command of the Army and Navy?
The Senator has said that, of course, if we do not create an army and navy, then there is nothing over which the President has command. But we have an Army and a Navy. Can not Congress limit, by legislation, under its appropriation acts, the purpose of which money may be used by the President as Commander in Chief of the Army and Navy?

Mr. BORAH. I do not know what the Senator means by “purposes for which it may be used.” Undoubtedly the Congress may refuse to appropriate and undoubtedly the Congress may say that an appropriation is for a specific purpose. In that respect the President would undoubtedly be bound by it. But the Congress could not, through the power of appropriation, in my judgment, infringe upon the right of the President to command whatever army he might find.

The debate continued, and shortly thereafter, in response to another question, Senator Borah said:

[I]f the Army is in existence, if the Navy is in existence, if it is subject to command, he may send it where he will in the discharge of his duty to protect the life and property of American citizens. Undoubtedly he could send it, although the money were not in the Treasury. What the result would be in the future as to appropriations would be another thing. I do not challenge the proposition that by refusing to appropriate, the President may be affected in the exercise of his power to command. The Congress might also refuse to appropriate for the Supreme Court for marshals, but why speculate about fanciful things?

Finally, this exchange occurred between Senator Borah and Senator Henrik Shipstead, a first-term Senator from Minnesota:

Mr. SHIPSTEAD. I agree with the Senator in that and I do not want to take away from the President the power to use the troops to protect American life and property.

Mr. BORAH. The Senator could not take it away from the President even if he wanted to do so. It is a power which belongs to him. We can not take it away from him.

In my doctoral dissertation on “National Security and the Constitution” I demonstrate that this was the prevailing paradigm in all three branches throughout most of our history, but things change.

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DeWayne Edward Benson - 2/28/2007

It literally angers me when intelligent people discuss the powers authorized by the Constitution to the branches of our government, being Executive, Legislative, and Supreme Court, and never even whisper about the illegal and unconstitutional "Executive War Powers" President (for past 65 years) have used that literally usurp all the powers of both the Legislative and Judicial.
It was with this War Powers that Pres-Bush began war against Iraq, and the Congressional Resolution was (no more than an attempt) to limit his War Powers.
If you cannot even make an inaudable mutter about this unconstitutional War Power's, why bother speaking at all about our government and the Constitution.

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