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Posts Tagged ‘constitution’

Rebalancing War Powers: President Obama’s Momentous Decision

Posted by Peter M. Shane on September 1, 2013

President Obama’s pursuit of congressional authority for a Syrian strike operation is, to date, his single most important decision in reshaping the post-9/11 presidency.

He early foreswore torture and declared the U.S. bound by the Geneva Conventions in the war against al Qaeda. These orders, however, only institutionalized legal positions into which the Supreme Court had already pushed the Bush Administration. Guantanamo, despite Obama’s best efforts, is still open.

But seeking authorization for a military strike against Syria marks the first time that a modern-day president has taken the initiative to elicit legislative approval for a military action that, by the President’s own reckoning, will neither be a prolonged, nor a boots-on-the-ground operation.

In announcing his decision, President Obama, like both Presidents Bush, declared that he possessed the constitutional authority to act unilaterally. He said he does not need Congress’s approval in order to proceed.

But historical precedents have consequences. Whatever their formal legal views, the Bushes’ decisions helped cement a consistent pattern: With the exception of Korea, the United States has never engaged in a massive or prolonged military deployment without some form of explicit congressional sanction. A President acting unilaterally to start what is sometimes called “a real war” henceforth would probably be courting impeachment.

Since World War II, presidents (with the exception of Eisenhower) and their lawyers have consistently maintained that executive power encompasses unilateral presidential authority to deploy military force wherever the President thinks necessary to protect the national security of the United States. As well documented by Tulane law professor Stephen M. Griffin, however, presidents made no such ambitious claims prior to World War II. It was common for high public officials, including presidents, to say the contrary.

The modern argument generally takes either of two forms. One, elaborated by the State Department during the Vietnam War, is a kind of “living Constitution” argument. There is scholarly consensus that the Constitution intended for the President to have the authority, without advance congressional approval, to repel sudden invasions. The State Department argued that, under modern conditions, threats to U.S. national security anywhere in the world could be as urgent as the threat of an invasion would have been in 1789. Hence, the allocation of war-making authorities should now be understood to give the President unilateral war-making power that matches the scope of modern threats.

The second form of argument is that unilateral presidential power to conduct at least those military operations that fall short of “real war” has been ratified by Congress’s implicit acquiescence in presidential actions of just this sort. In other words, presidents have acted without Congress, and Congress has not barred the practice. The War Powers Resolution is sometimes argued as supporting this view because it effectively permits the President on his own initiative to commit armed forces to combat for up to 60 days.

Neither of these arguments is frivolous, but each departs notably from the original Constitution. Because the Constitution vests authority in Congress to issue “letters of marque and reprisal,” it is evident that the framers supposed congressional authority necessary to the deployment of military force even on a small scale.

A version of the history-based argument is, however, at least technically reconcilable with the original understanding. Congress’s acquiescence can be understood as a form of congressional authorization, which still remains a necessary legal precondition for any presidential military initiative.

The problem for Obama regarding Syria, however, is that – as scholars as different in political orientation as Jack Goldsmith and David Cole have pointed out -no historical precedent quite resembles the punitive strike that the President seeks to inflict. There is no imminent danger to U.S. persons or property. We are not acting at the behest of the sitting government. We would not be acting in pursuit of any resolution of the U.N. Security Council. It could not even be argued, as with Kosovo, that the strike was necessary to reaffirm the cohesiveness of NATO. Proceeding without either clear domestic precedent or obvious defense under international law would come close to saying that the President’s authority to deploy military force is beyond legal limit.

In seeking congressional authorization, President Obama is thus re-submitting the modern presidency to the kind of “cycle of accountability,” to use Professor Griffin’s phrase, that the constitutional design anticipated. We will strike Syria, if at all, based on a joint determination by both elected branches that should nurture an ongoing sense of joint responsibility to monitor and assess in a careful way whatever consequences ensue.

It is all the better for this purpose that support for a resolution, if enacted, will necessarily be bipartisan. No party and no elected institution will be able to say, in the face of adverse consequences, “We didn’t do this.”

It is also a strategy under which the President accepts political risk. If Congress votes down a resolution that would authorize a strike action, the President might take the position that (a) failure to pass a resolution of authority does not equal the affirmative passage of a resolution denying him authority, and (b) absent the latter, he still has constitutional power to undertake the mission unilaterally. But it’s not likely to be a politically viable argument. If Congress fails to authorize a Syria strike, the President is all but certain to desist – with obvious negative consequences for his credibility, both at home and abroad.

(It might be observed that no President who has gone to Congress for military authority has ever been turned down.  But none has sought military authority from a legislative branch as polarized as the current Congress.)

Of course, historical precedents are not legal precedents like Supreme Court opinions. The norm of consistency across cases is not as strong in decision making where politics dominates.

But events, when they happen, exert a force on the future. Should President Obama or his successors seek to attack other nations in similar circumstances in the future – Iran, for example, to forestall its nuclear ambitions – the question will be asked, “Why can’t Congress be involved, as it was in Syria?” This is an institutionally powerful question. It can limit the exertion of power. It will have force in rebalancing the allocation of authority between executive and legislative branches in the deployment of U.S. military assets in support of presidential foreign policy.

In the world of constitutional politics, this is a very big deal.

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OLC’s Skillful Defense of President Obama’s Recess Appointments and Its Possible Aftershocks

Posted by Peter M. Shane on January 13, 2012

The Justice Department’s release of on Office of Legal Counsel (OLC) opinion regarding President Obama’s recess appointments power is a welcome display of public accountability. However one analyzes the bottom line, the opinion is a model of the genre. It is thorough in its analysis, candid about points that are novel or untested, and serious about engaging what it acknowledges to be substantial counterarguments. This is evidence of an OLC that is doing its job.

For separation of powers aficionados, what ought to most interesting is the OLC opinion’s primary line of attack. I had earlier defended the President’s right to make recess appointments even during a three-day recess – an argument that, in a footnote, the OLC opinion holds in reserve. OLC’s main conclusion, however, is that the recent pro forma sessions were of no constitutional significance in interrupting what was effectively a 20-day recess. OLC thus followed earlier Attorney General Opinions that had judged the concept of “recess” functionally, by whether “in a practical sense the Senate is in session so that its advice and consent can be obtained.”

The OLC analysis is arguably the more institutionally modest position because it is better grounded in historical precedent. Its functional approach also resonates with Supreme Court and D.C. Circuit opinions dealing with a structurally similar question, namely, when does Congress “by their adjournment” prevent the President from returning a veto message, thus triggering the President’s power of “pocket veto” – i.e., the power to prevent an enacted measure from becoming law without an actual veto if, on the tenth day following the measure’s presentation to the President, Congress is not in session to receive the President’s message. In the 1938 case of Wright v. United States, the Supreme Court held that, even when the Senate was concededly in a three-day recess, it had not prevented the President from vetoing enacted bills because the Secretary of the Senate remained available to receive the veto message. The OLC opinion, like Wright and, even more conspicuously, Wright ‘s D.C. Circuit progeny, seeks a constitutional reading that most pragmatically facilitates the system of checks and balances by respecting the core powers of each political branch.

(Interestingly, Professor Laurence Tribe had earlier offered yet a different analysis — that the Constitution confers “an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes,” and that pro forma Senate sessions during what would otherwise appear to be a substantial recess could not defeat the President’s power when such sessions “manifestly” served no purpose other than to serve as a “transparently obstructionist tactic.”)

As much as I admire the restraint and thoughtfulness of the OLC opinion, however, I have only a limited hope that it will put a stop to interbranch game-playing. Perhaps the toughest point for OLC to counter was that, during two pro forma sessions – one last summer and one this winter – the Senate actually did pass legislation by unanimous consent, thus seeming to be “in business.” OLC’s counter to this was rather technical, namely, that the scheduling orders during which the pro forma sessions were held explicitly provided that there was to be “no business conducted.” “In our judgment,” the opinion states, “the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.”

That’s fair enough, but let’s imagine a few scenarios. What if, for example, the Republicans take the Senate in 2012, but President Obama is reelected? It seems quite likely that the pro forma ritual will continue, but with the Senate modifying its scheduling orders to make the possibility of doing business seem more plausible. Perhaps the pro forma sessions will occur daily, rather than every three days.

Or, imagine, as is less likely, that the Democrats retain the Senate but President Obama loses the White House. The Democrats, eager to prevent controversial nominees from getting recess appointments, could well try to prevent them the old-fashioned way – by actually scheduling floor action and voting them down. Will we then see Republicans using the filibuster to prevent such votes, not in the hope that the Senate will ever approve the nominees in question, but to keep the nominations alive and the vacancies open, so President Obama’s Republican successor may appoint them during a recess?

In our analyses of President Obama’s recent appointments, both Professor Tribe and I stressed that the appointments were limited to vacancies that, if they persisted, would prevent the agencies involved from actually executing the laws they were charged with enforcing. Of course, there is no guarantee that any successor to President Obama (or even President Obama himself on another occasion) will observe such restraint.

And, on top of all of this, the President seems to have his own textually explicit nuclear option. He is authorized by Article II to adjourn Congress unilaterally “to such time as he shall think proper.” If courts interpret the Recess Appointments Clause to require adjournments of, say, ten days or more in order to be triggered, there is no obvious bar in the text to the President adjourning Congress for ten days to accomplish precisely that end.

A British Prime Minister, Lord John Russell, famously observed: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.” Under our Constitution, of course, it is “the People” who hold the supreme power. But we have effectively delegated the exercise of government power to a set of partly autonomous, partly interdependent institutions to which we have allocated both authorities and dependencies in the hope of effective governance. Yet, “forbearance of those among whom . . . power is distributed” is not much in evidence these days. As much as I applaud the President’s recent actions and the skillful defense OLC has offered, I thus find it difficult not to worry about the aftershocks.

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An Inconvenient Text: Will House Members Obey the Constitution They Read Aloud?

Posted by Peter M. Shane on January 5, 2011

It’s wonderful that Members of the House of Representatives are preparing to hear a reading of the Constitution of the United States.  I would enthusiastically echo the hopes of Dahlia Lithwick and Garrett Epps that close attention to such a performance might prompt at least some of our constitutional fundamentalists to appreciate that the document they revere is both imperfect and complex.  Things they hope to find there will be missing.  Things they wish were not there are explicit. Readers of Dahlia’s and Garrett’s essays will find numerous examples to mull over.

I thought, therefore, that I would limit my post today to a single question:  After the reading of the Constitution, will all members of Congress who are military reserve officers or who hold appointments as retired military officer resign their posts?  I ask because, Section 6, Paragraph 2, of Article I states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  It’s called the Incompatability Clause.  To hold a commission in the armed forces reserves or an appointment as retired military officer is to hold “Office under the United States.”  So, while in Congress, don’t Reserve officers and retired military officers have to resign their executive branch positions?

A group of reservists opposed to the war in Vietnam brought the issue of reserve officers to the fore over 35 years ago, and succeeded at the trial and appellate court levels in getting a declaratory judgment that Members of Congress are ineligible, while in Congress, to hold a Reserve “commission.”  The Supreme Court set aside the judgment on a procedural ground, namely, that the plaintiffs were not injured personally by the asserted violation of the Constitution’s Incompatibility Clause, and were therefore not entitled to sue on the matter in a federal court.

Of course, the fact that individual Americans cannot sue Congress because of procedural hurdles should not keep Congress from doing the right thing, right? 

In a Fourth of July week message last summer, now Rep. Allen West (R-FL), said:  “I believe in our Constitutional Republic which means we are a Nation respecting the rule of law. We must . . . enforce our laws, clearly articulated in the Constitution.”  Does that mean that “Lieutenant Colonel Allen West (US Army, Retired),” as he describes himself on his web site, will now resign that appointment? 

Just asking.

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