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AN INTRODUCTION TO WAR POWERS
This is best observed on the constitutional battleground that is “war powers”.
Distribution of war powers between the President and Congress in a nation mothered by war is undeniably ambiguous in its original form. When searching for answers and clarity you discover, according to Steven W. Hook, “The language on foreign policy is very brief and sufficiently vague to provoke widely varying interpretations of the framers’ intent.”
David M. Kennedy, a history professor at Stanford University and a 2000 Pulitzer prizewinner, says, “The founders meant to create a new political order in which sovereignty would reside not with the rulers but with the people, especially when it came to the fearsome sanction of military power.” War powers are thus divided—under the Constitution—between the President and Congress.
Article I, Sec. 7 gives Congress the power to declare war, as well as, raise and support the armed forces. Article II, Sec. 2 names the president Commander-in-Chief giving him the power to repel attacks and lead the army created and supported by Congress.
According to Kennedy, “Nowhere has the fabled system of checks and balances proved more contentious. Because so much is at stake in questions of war and peace, the founders in effect crafted an invitation to perpetual conflict between Congress and the President.”
On November 7, 1973, in an attempt to curb rapidly eroding congressional authority, the War Powers Resolution (WPR) was voted and passed despite President Nixon’s attempt to successfully exercise his veto authority. The resolution “states that the President’s powers as Commander in Chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only pursuant to,” declaration of war, specific statutory authorization or national emergency created by an attack on the U.S. or its forces.
Louis Fischer—senior specialist in separation of powers at the Congressional Research Service of the Library of Congress—and David Gray Adler—professor of political science at Idaho State University—say, “The War Powers Resolution (WPR) of 1973 is generally considered the high-water mark of congressional reassertion in national security affairs. In fact, it was ill conceived and badly compromised from the start, replete with tortured ambiguity and self-contradiction.”
Fischer and Adler disagree with the broad power the WPR seems to extend to the chief executive, even though Congress can contain the executive by refusing or controlling funds.
This paper will analyze Federal and Supreme Court Decisions concerning war powers of the President, because according to Ryan C. Hendrickson, author of The Clinton Wars: The Constitution, Congress and War Power “the question of who has authority to deploy American troops and use military force abroad is one of the most profound and important constitutional issues raised since the republic’s founding.”
EXTERNAL MATTERS: FOREIGN AFFAIRS AND WAR
Much of the debate between Congress and the President exists in mutual differences of opinion as to which entity holds the power to address foreign—external—matters of state. The root of divergence is who holds war making powers, an area evidently lacking in sufficient clarity due to the Framers’ own disagreements on the subject.
According to Jesse H. Choper, “Relatively few Supreme Court opinions address foreign affairs or war powers, much modern debate involving a host of controversial issues has concerned the original understanding and historical practice.” Despite Choper’s belief that both Congress and the President hold enough power to settle their own disputes without judicial intervention, the courts are not lacking in suits filed.
In the case of the United States v. Curtiss-Wright Export Corporation the powers of the Chief Executive over foreign [external] affairs is affirmed in the reversal of a lower court’s opinion that a joint resolution passed by Congress authorizing the President to place an arms embargo on Bolivia and Paraguay if he found it would lead to the reestablishment of peace—between the two countries—was an “unconstitutional delegation of legislative power.”
Delivering the opinion of the court, Justice Sutherland wrote, “The powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs [are] different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.”
The opinion of the high court also states that the application of power in the area of foreign affairs is “significantly limited,” and that, “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.” The court notes what is important here is the fact that the case deals not only with authorities given to the President by congressional power, but also with “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”
Because the issue at hand applies to external relations rather than those of an internal nature, “congressional legislation [must] often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs involved,” if the U.S. is to circumvent staid embarrassment and ultimately achieve its goals successfully. The President is often in a better position to understand the internal atmosphere of other countries, “especially is this true in time of war,” as a result of “confidential sources of information” of which secrecy is “highly necessary.”
Justice Sutherland, on behalf of the court, says, “it is evident that this court should not be in haste to apply a general rule which will have the effect of condemning legislation like that under review as constituting an unlawful delegation of power.”
Another case involving foreign affairs—more particularly International Executive Agreements—is that of the United States v. Belmont. The case is brought by the United States to “recover a sum of money deposited by a Russian corporation (Petrograd Metal Works) with . . . a private banker doing business in New York City under the name of August Belmont & Co.”
“A motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action was sustained by the District Court,” and affirmed by the appellate. In 1918 the Soviet government dissolved and nationalized and appropriated the company and all its property and assets “of every kind wherever situated” and “as a result, the deposit became the property of the Soviet government,” until November 16, 1933 when an international executive agreement was reached with the United States releasing and assigning “all amounts due to that government from American nationals, including the deposit account of the corporation with Belmont.”
In the opinion of the court, Justice Sutherland says due to the continued interest by the Soviet government as to the outcome of collection attempts by the U.S. a question of “public concern, the determination of which might involve the good faith of the United States in the eyes of a foreign government,” is raised.
The court does not disagree an infringement upon a policy of the state of New York would occur—the reason the lower court ruled in favor of the respondent—however, “we are of the opinion that no state policy can prevail against the international compact here involved.” What is important here is that while governmental power concerning internal affairs is distributed among the states, “governmental power over external affairs is not distributed, but is vested exclusively in the national government.” It is determined that “in respect to what was done here, the executive had authority to speak as the sole organ” of the national government, and the agreements made did not require the consent of the senate. Justice Sutherland states it is “inconceivable” that any state policies would act “as an obstacle to the effective operation of a federal constitutional power,” thus respondent “may not challenge the effect of the assignment to the United States, the judgment is rightly reversed.”
The case of the United States v. Pink also affirmed the power of the President over external affairs. In a concurring opinion Justice Frankfurter states, “In our dealings with the outside world the United States speaks with one voice and acts as one, unembarrassed by the complications as to domestic issues which are inherent in the distribution of political power between the national government and the individual states.”
Power given to the President to engage in international executive agreements is a key element to successful foreign relations. Executive agreements frequently act as the thin thread holding off the gates of war even if American troops must fight or deploy.
In the case of Campbell v. Clinton a group of congressmen filed suit alleging President Clinton had violated the War Powers Resolution [WPR] and the War Powers Clause of the Constitution, “by directing U.S. forces’ participation in the recent NATO campaign in Yugoslavia.” The district court dismissed for a lack of standing and the Supreme Court refused to hear the case.
Circuit Court Judge Silberman concurred with the judgment saying, “In my view, no one is able to bring this challenge because the two claims are not justiciable. We lack ‘judicially discoverable and manageable standards’ for addressing them, and the War Powers Clause claim implicates the political question doctrine,” in Baker v. Carr. The court says the appellants “cannot point to any test for what is war.”
The opinion also states “even if this court knows all there is to know about the Kosovo conflict, we still do not know what standards to apply to those facts.”
The case of Martin v. Mott is a case dealing with the Presidents power to repel invasions. Though somewhat outdated, considering in modern times there is no draft or forcible entry of any form into the armed services, the case supports the presidential power to call forth a militia to halt an invasion and take steps required to prevent invasion based on his unique access to information.
Justice Story in delivering the opinion of the court stated: “The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility.”
INTERNAL MATTERS
President Truman issued Executive Order 10340 instructing the Secretary of Commerce to “take possession of and operate most of the Nation’s steel mills,” with the aim of sidestepping a nationwide strike of steel workers in April of 1952 in order to avoid a national defense crisis during the Korean War. This resulted in the case of Youngstown Sheet & Tube Co. v. Sawyer, also known as The Steel Seizure Case.
According to Justice Black in the majority opinion of the court: “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. [T]he use of the seizure to prevent work stoppage was not only unauthorized by any congressional enactment; prior to this controversy, Congress has refused to adopt that method of settling labor disputes.”
In lieu of the emergency seizures, The Labor Management Relations Act of 1947 would attempt settlement by the use of “customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports.” Justice Black also says—on behalf of the court—“We cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production,” he continues, “This is a job of the Nation’s lawmakers, not for its military authorities.”
Within the Constitution it outlines that the President should make sure the laws are “faithfully executed” proving false the idea of the President making the laws. Justice Black says plainly that the Constitution is “neither silent nor equivocal” on the delegation of lawmaking powers. The Presidential role in the process of lawmaking is limited to “recommending laws he thinks wise and the vetoing of laws he thinks bad.”
Justice Jackson in concurrent judgment says, “The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” In addition it is stated that “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”
Chief Justice Vinson, Justice Reed and Justice Minton dissent citing the international commitments of the United States for “economic and military aid to preserve the free world.” They argued that there was a history of seizures—particularly by Roosevelt—to preserve the defense effort during World War II. “Flexibility as to mode of execution [of the laws] to meet critical situations is a matter of practical necessity.”
PRIOR RESTRAINTS AND NATIONAL SECURITY
Due to a security breach somewhere within the national security structure a classified study entitled “History of U.S. Decision-Making Process on Vietnam Policy” was leaked to the press, and on June 12-14, 1971 the New York Times published portions followed by the Washington Post on June 18, 1971. The publication of the “top secret” documents led to the government filing temporary restraining orders and injunctions and in just under two weeks made it through 4 courts to a Supreme Court decision in the case of New York Times Co. v. United States—The Pentagon Papers Case.
In a per curium opinion it is stated: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” There is a “heavy burden” placed on the government in cases such as these and in the opinion of the court that burden was not met.
Justice Black delivered an opinion with which Justice Douglas concurred stating, “I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Justice Douglas believes that despite the dire impact the publication of these documents will have, that “the dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.”
The dissent believes that the court has been “almost irresponsibly feverish” in the way the Pentagon Papers Case was handled, placing a particular emphasis on the time frame for judgment. According to Justice Harlan’s dissent “These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous.”
The court did however leave room for prior restraint in the future, but outlined the “dire” circumstances that would need to be present.
GLOBAL WAR ON TERRORISM (GWOT)
Following the terrorist attacks on the United States in 2001, the Bush Administration launched a Global War on Terrorism (GWOT) in accordance with the Congressional Authorization for Use of Military Force (AUMF). Only recently have cases begun to hit the courts involving detainee rights.
The case of Hamdi v. Rumsfeld concerned an “enemy combatant” captured during military operations in against the Taliban in Afghanistan. Upon arrival at Guantanamo Bay, Cuba it was learned Yaser Hamdi was an American citizen and transfer was arranged to a naval brig in South Carolina.
The long and short of the case is that individuals captured on the battlefield who turn out to be American citizens “can be detained without criminal charges, but they are entitled to a hearing.”
The case of Hamdan v. Rumsfeld dealt with the legality of military commissions approved by the President to be utilized in trying “enemy combatants” captured in the GWOT. According to John C. Yoo, a professor at University of California at Berkeley School of Law, “The Supreme Court’s decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretations of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive’s reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference.”
CONCLUSION
One true constant once returning from the war powers battleground is the grey area surrounding the majority of language used to describe the framers’ intent for separation of powers between Congress and the Executive Branch.
Applying history to future administration of government as simply a list of experiences to look back on may in fact be the only way to gain any depth from the courts offerings in the areas of War Powers.
The truth of the matter is indeed Congress will always fight for the power the President holds and the President will always try to stretch the power as far as law will allow.
SOURCES and LINKS
CRS Issue Brief for Congress (RL81050), “War Powers Resolution: Presidential Compliance” By Richard F. Grimmett
“Founders’ Fuzziness” By David M. Kennedy appear in TIME Magazine January 18, 2007 (
[url=http://www.time.com/time/magazine/article/0,9171,1580384,00.html]http://www.time.com/time/magazine/article/0,9171,1580384,00.html)
“Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch” BY Julian Ku and John C. Yoo (Hofstra University Legal Studies Research Paper No. 06-32 UC Berkeley Public law Research paper No. 945454 Constitutional Commentary, Vol. 23, p 179, 2006
Hook, Steven W., U.S. Foreign Policy: The Paradox of World Power (Second Edition,) Copyright 2008 CQ Press.
[url=http://www.law.duke.edu/publiclaw/supremecourtonline/commentary/hamvrum]http://www.law.duke.edu/publiclaw/supremecourtonline/commentary/hamvrum
“Judicial Review and the National Political Process” By Jesse H. Choper (1980) Ch.5
The Clinton Wars: The Constitution, Congress and War Power, By Ryan C Hendrickson. 2002 Vanderbilt University Press.
The War Powers Resolution (P.L. 93-148)
“The War Powers Resolution: Time To Say Goodbye” By Louis Fisher and David Gray Adler. Political Science Quarterly , Vol. 113, No.1 (Spring, 1998), pp.1-20 [Published by The Academy of Political Science
Supreme Court Cases
Campbell v. Clinton 203 cert denied F.3d 19 (D.C.Cir.2000)
Hamdan v. Rumsfeld (No. 05-184) (2006)
Hamdi v. Rumsfeld 542 U.S. 507 (2004)
Martin v. Mott 25 U.S. 19 (1827)
New York Times Co. v. United States 403 U.S. 713 (1971)
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936)
United States v. Belmont 301 U.S. 324 (1937)
United States v. Pink 315 U.S. 203 (1942)
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)
