Recent events in Iraq seem to pose a challenge to a limited view of presidential war powers. Suppose, the argument runs, a fast moving threat to U.S. national security arises quickly, at a time when Congress is not meeting. Containing the threat depends on a fast response — but if the President must get Congress’ approval to act, action will come too late.
This is the ISIS situation in a nutshell. Nor is this an artefact of modern times; while threats may arise more quickly now, Congress meets more often and can be more easily recalled. Thus the challenge goes to the core of original meaning of the declare war power: could the framers have intended to deny the President the ability to act in an emergency (such as the one posed by ISIS) by vesting war-initiating powers exclusively in Congress?
In no particular order, here are my responses:
(1) The President has independent power to respond to attacks (and, I would say, imminently threatened attacks) on the United States. (See my article The President’s Power to Respond to Attacks). This power is not foreclosed by the Congress’ declare-war power. This power may also include power to protect U.S. personnel abroad. Indeed, as Ilya Somin describes in his excellent post Assessing Possible Legal Justifications for US Airstrikes against ISIS, this is an arguable ground for the President’s acts (so far) in Iraq: to defend U.S. personnel in and around Erbil. In any event, even a narrower view of the response power would allow the President to defend against core threats to and attacks on the United States, which are obviously the ones of greatest concern.
(2) The President has independent power to deploy troops to defensive positions in support of n ally (as, for example, President Bush did in 1990 in Saudi Arabia in response the Saddam Hussein’s attack on Kuwait). If those forces are then attacked, the President can defend them. Thus, one response — distateful for political reasons, of course — to the ISIS threat would have been to move troops to Erbil.
(3) The President has authority to transfer weapons and supplies to allied forces. So if the concern is an attack on an ally, the President can respond in this manner. (Arguably in the current situation the President should have responded in this way earlier to the ISIS threat against the Kurdish region).
(4) Congress can delegate to the President the power to use force if the President thinks necessary. This claim is somewhat more controversial, but it accords with longstanding practice dating at least to the quasi-war with France in 1797. (I have some further thoughts in this article: Presidential Declarations of War). While I am doubtful that Congress could constitutionally make an open-ended non-specific delegation, in the present case I think Congress could have (and probably should have) delegated to the President temporary authority to deal militarily with ISIS prior to leaving on vacation.
(5) Perhaps most importantly, per Article II, Section 3, the President may “on extraordinary Occasions, convene both Houses …” This is the constitutional text’s most apparent way of dealing with emergencies requiring the attention of Congress. Its inclusion suggests that the framers understood the risk of investing Congress with powers that might be needed in an emergency while knowing that Congress would often not be immediately available. Because the text does not give the President general power to act in an emergency, the clause further suggests that the framers, although knowing the risks, still thought re-convening Congress was preferable to unilateral action.
With modern transportation, re-convening Congress is quite easy; in the framers’ time it was obviously harder, but threats also developed more slowly then. Of course, a re-convened Congress might not approve of the President’s proposed action — but that would suggest that the need to act was not as great as the President contended.
In sum, these considerations suggest to me that the problem of responding to rapidly developing military threats is not an intractable one, even under a narrow view of presidential war powers. To be sure, some of these strategies (though not all of them) may sound odd or anachronistic to modern ears. But that is because in modern times we have assumed greater presidential power to act in emergencies, and thus discounted how the Constitution actually dealt with them.
UPDATE: At Lawfare, Jack Goldsmith: The Case for Seeking Congressional Authorization for Iraq Strikes Just Grew Stronger. Plus related posts here and here.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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