Posted: May 19, 2006
he Constitution assigns Congress the powers "To declare War, grant Letters of Marque and Reprisal, and...provide for calling forth the Militia to...repel Invasions," as well as to raise armed forces and make rules for governing them. It gives the president the executive power and makes him commander in chief. The original understanding of these allocations continues to be warmly debated, as does the subsequent record of war-making under the Constitution. Have presidents, congresses, and courts adhered to whatever division of powers they are supposed to observe or enforce?
Peter Irons explores this and related questions in War Powers, part of a series of books ("The American Empire Project") devoted to exposing the nation's "imperial ambitions" and "discuss[ing] alternatives to the dangerous trend" toward empire. Irons himself is a political scientist best known for his work on the Japanese-American relocation cases from World War II. In this book, his predilections quickly surface. He moves easily from reconstructing an original understanding that assigns Congress the bulk of war-initiating authority, to implicating a "supine Congress" as a "willing, often eager accomplice" of the president in a massive "subversion" of the Constitution, assisted by "compliant federal judges" and even the general public. They all promote an imperial design feeding an economic system that requires global resources and markets.
In holding that Congress originally received nearly complete war-initiating authority, with the president empowered only to respond defensively to attack or invasion, Irons is in decent company. (At least I prefer to think so, having argued a similar position in print.) Yet he fails to engage weighty arguments put forth by equally respectable proponents of presidential authority. (John Yoo comes to mind.) Instead, he directs the book at "concerned American citizens...who wish to become better informed about these issues, without having to master scholarly jargon or deal with overheated rhetoric." But if care and accuracy matter, War Powers should give concerned citizens considerable pause. Space allows only a sampling of Irons's missteps.
Irons's discussion of the constitution's origins foreshadows what follows. It may be trivial that he badly botches the Mount Vernon conference in 1785. (He has four states attending, not two, and he wrongly describes it as unsuccessful.) Less easily dismissed is his misreading of James Madison's "Vices of the Political System of the United States," completed just prior to the 1787 Convention. "Chief among the vices," Irons claims, "was the absence, in the Articles of Confederation, of the tripartite system of government that Locke had proposed a century earlier in his Second Treatise of Government, with functions divided among legislative, executive, and judicial branches." In reality, Madison's document ignored the structure of the Confederation government because its concern was the balance between state and central authority. But if Madison had taken up the issue, he surely knew his Locke well enough not to have associated the functional division between the legislative, executive, and judicial branches with the Englishman. (Try Montesquieu.)
Downright negligent is Irons's use, a bit later, of a comment from Madison attacking presidential initiative in war-making:
Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to becommenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.
Describing this as "[p]erhaps the most authoritative statement on the primacy of the legislative over executive powers in this field," Irons places the passage in the midst of his discussion of the meager comments on war-making during the Constitutional Convention and the ratification debates. Whether or not Madison's remark accurately reflects the original understanding, the unwary reader has no way of knowing that he actually wrote it about five years later, in 1793, after the outbreak of war between Britain and France had begun to polarize American politics.
Indeed, evidence suggests that Irons himself is unaware of the circumstances of Madison's comment, even though they are hardly obscure. The new European war provided the context. Because it threatened to involve the United States, George Washington formally proclaimed American neutrality in April 1793, relying on his authority as president. Thomas Jefferson, then Secretary of State, also favored America's steering clear of the conflict, but argued Washington lacked authority to issue a neutrality proclamation without consulting Congress. (Accommodating Jefferson, Washington hence avoided using the word "neutrality.") Yet when Irons turns to the related events, he misstates their sequence in several confused and curious paragraphs and has Jefferson supporting the president's unilateral "authority to issue what might be considered treaties." We learn too that Jefferson "had an unlikely ally on this question, Alexander Hamilton [then Secretary of the Treasury], and an equally unlikely adversary, James Monroe [sic]." Monroe did question the constitutionality of the proclamation as it was implemented, but context indicates Irons meant to identify Madison as Jefferson's adversary. More important for understanding Madison's comment quoted above, this was the occasion for Hamilton, writing as "Pacificus," to defend Washington's neutrality policy. Irons mentions the Pacificus essays, but omits Hamilton's key argument that the powers of foreign relations and war are inherently executive, with exceptions in favor of Congress to be narrowly construed.
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Irons then continues with his constitutional odd couple, reiterating that "Hamilton and Jefferson became unlikely allies on the question of presidential authority to issue the neutrality proclamation." "It was equally surprising," he adds, "that Jefferson's longtime friend and political compatriot James Madison entered the debate on the other side." In fact, Jefferson encouraged Madison to answer Hamilton. "For god's sake, my dear Sir," he pleaded, "take up your pen, select [Hamilton's] most striking heresies and cut him to pieces in the face of the public. There is nobody else who can and will enter the lists with him." Madison's ensuing "Helvidius" letters challenged Hamilton's constitutional interpretation and included the comment wrongly placed by Irons in the midst of the Constitution's framing and ratification.
Irons might have returned to Hamilton during the Quasi-War of 1798-1801, when the U.S. launched an undeclared but congressionally authorized naval war against France to defend American shipping. In May 1798, before the legislative program was complete, Hamilton (now in private law practice) responded to a request for advice on instructions to Navy captains. He wrote:
Not having seen the law which provides the Naval Armament, I cannot tell whether it gives any new power to the President[,] that is[,] any power whatever with regard to the employment of the Ships. If not, and he is left on the foot of the Constitution, as I understand to be the case, I am not ready to say that he has any other power than merely to employ the Ships as Convoys with authority to repel force by force, (but not to capture), and to repress hostilities within our waters including a marine league from our coasts. Any thing beyond this must fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.
During the Quasi-War, moreover, President John Adams's words and deeds indicate he apparently agreed with Hamilton's assessment that without congressional authorization, the president's options were severely limited.
Yet Irons neglects Hamilton's position in 1798, which offers support for his own views on congressional supremacy. As mentioned above, Hamilton had argued in 1793 that exceptions, in favor of Congress, to the president's executive powers are to be narrowly construed. If he applied this rule in 1798, he evidently concluded that even under a narrow construction of its authority, Congress rather than the president holds the power to initiate general naval reprisals. In December 1801, of course, he seemed to reverse himself, criticizing now-President Jefferson for disclaiming presidential authority to initiate offensive action against Tripoli after its declaration of war against the U.S. (In fact, unknown to Hamilton, Jefferson had secretly ordered offensive action.) Hence Hamilton remains a bit of a puzzle. Or perhaps not: in his 1801 attack on Jefferson, he placed considerable stress on Tripoli's already having declared war. In the Quasi-War, France had refrained from doing so.
As Irons moves into the 19th century, the problems continue. By his account, Congress chartered the Second Bank of the United States as part of preparations for the War of 1812. (The charter came in 1816, after the war.) In 1846, we discover, General Zachary Taylor provoked the attack that began the Mexican-American War by sending a detachment south of the Rio Grande. (He did not. It was provocative enough for Mexico that Taylor's forces took up positions in the disputed territory north of the river.) When Irons reaches the Civil War, he implies that Justice David Davis spoke for the whole Supreme Court in Ex parte Milligan (1866), denying that either Congress or the president had authority during the war to institute military commissions in loyal areas where courts were open. (Irons properly sees Milligan as an aberration within the overall pattern of judicial acquiescence in war measures, but four of the justices maintained that although the president had no authority to establish the tribunal that convicted Milligan, Congress could have done so.)
The 20th century? In World War I, Irons states astoundingly that although "the British and Germans had both interfered with American shipping [prior to U.S. entry into the conflict],...neither had violated the established rules of warfare...." (Both glaringly did so, but British seizures proved more tolerable than German sinkings.) From the end of World War II, another tidbit emerges: "Just a few months after Roosevelt's sudden death...Harry Truman learned about the development of nuclear weapons and made the decision to drop atomic bombs on two Japanese cities." (He learned of the Manhattan Project within two weeks of FDR's death in April 1945.) Irons gets the Korean War wrong, too, writing, "From Korea in 1950 through the Gulf War in 1991, Congress...allowed presidents...to commit forces on the basis of resolutions that constituted functional declarations of war." For some of the later conflicts, this is arguably correct, but for Korea, Congress passed no authorizing resolution. The error is strange, because earlier in the book Irons gets Korea partly right, noting the lack of a resolution.
In due course, Irons turns to the 1991 Gulf War, which "President George H. W. Bush launched...to restore his sagging political fortunes, in addition to [sic] his determination to secure access to Middle Eastern oil." Irons finds that it "produced only one significant judicial test of Bush's decision to commit troops to combat." Here he identifies Dellums v. Bush, decided in December 1990 by federal judge Harold Greene, who finally dismissed as premature an attempt by 54 members of Congress to enjoin going to war without congressional approval. Before doing so, however, Greene denied that the case presented a nonjusticiable political question and indicated that Bush had no authority to commit forces to major hostilities on his own authority.
But "only one significant judicial test"? Irons inexplicably fails to mention a second case, decided the same day, which better supports his view about "compliant federal judges." In Ange v. Bush, federal judge Royce Lamberth ruled against a National Guard sergeant's attempt to prevent his deployment to the Persian Gulf. "The judicial branch," Lamberth opined, "is neither equipped nor empowered to intrude into the realm of foreign affairs where the Constitution grants operational powers only to the two political branches and where decisions are made based on political and policy considerations." But Lamberth denied this conclusion gave the president free rein, for "Congress possesses ample powers under the Constitution to prevent Presidential overreaching, should Congress choose to exercise them." These included impeachment and control over appropriations. Of course, neither Dellums nor Ange really tested "Bush's decision to commit troops to combat." In the actual event, Bush finally obtained a resolution from Congress, in January 1991, but Irons is conflicted about it. Besides calling it a "blank check," he contends the elder Bush misread the Constitution in denying he needed the authorization. Several pages later, however, Irons favorably compares the 1991 resolution's focus on Iraq to the open-ended resolution George W. Bush sought after 9/11.
Aside from court opinions, one senses that Irons has not gone far into the basic documents. Typically, he takes a primary-source quotation from one of the several secondary accounts on which he heavily relies, perhaps breaking it up with a phrase of his own. For the surrounding text, he paraphrases the secondary account. An example comes from Louis Fisher'sPresidential War Power (1995). Describing the background to the Spanish-American War of 1898, Fisher wrote, "Congress passed a concurrent resolution in 1896 offering the 'friendly offices' of the United States to Spain for the recognition of an independent Cuba. Spain rejected the offer." In Irons's account, this becomes: "In 1896, Congress adopted a resolution extending the 'friendly offices' of the United States to Spain in recognizing an independent Cuba. But the Spanish government rejected the offer."
Another example involves a presentation in 2003 by Congressman Peter DeFazio (D-Oregon). Discussing Congress's response to President Bush's request in September 2001 for a resolution against terrorism, DeFazio asserted (misleadingly) that "congressional negotiators succeeded in significantly narrowing the scope of the final resolution" from "[t]he original language...[that] would have authorized the President 'to deter and pre-empt any future acts of terrorism or aggression against the United States.'" He then claimed (also misleadingly) that "the final resolution limits the President to retaliating against only those nations, organizations, or persons responsible for the September 11th attacks.... [T]he resolution was signed into law on September 18th, a mere seven days after the attacks...." Here is Irons's version: "Disturbed by the sweeping language, congressional negotiators finally persuaded the president to accept a resolution that limited him to retaliating only against those nations, organizations or persons responsible for the 9/11 attacks. Bush signed the congressional resolution into law on September 18, 2001, just seven days after the attacks." Perhaps with better license, Irons recycles parts of War Powers almost verbatim from his own People's History of the Supreme Court (1999).
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Despite its errors and questionable interpretations, War Powers presents an intriguing puzzle. Consider first that Irons approvingly quotes Madison at the beginning of the Constitutional Convention on dividing power between the different branches and levels of government. "What his opinion might ultimately be he could not yet tell," Madison's own notes record him as saying. "But he should shrink from nothing which should be found essential to such a form of Govt. as would provide for the safety, liberty and happiness of the Community." Consider also that in his People's History of the Supreme Court, Irons allowed that he "believe[s] firmly that the Framers—despite their flaws—shaped the Constitution as a 'living' document, whose basic principles would endure but whose separate provisions would grow in meaning as American society grew in size and diversity." There too he approvingly quoted his "judicial ideal and inspiration," Justice William Brennan: "[T]he genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."
In short, Irons evidently accepts the need for a government attentive to the safety of the community, and he endorses an evolving Constitution. Why then is he so rigidly set on holding the president, Congress, and the courts to an original understanding that denies the flexibility in war-making required for national security in the 21st century? The solution to the puzzle is most likely Irons's underlying opposition to war itself, however authorized or initiated. By his telling, it mesmerizes and co-opts almost everyone, in and out of government. Neither Congress nor courts exercise independent judgment about hostilities. Worst of all, an evil system rumbles on.
In the end, in Irons's view, "there is just one realistic prospect for ending the subversion of the Constitution and returning the war-making power to Congress, where it was placed by the Framers and where it belongs." His proposed strategy is "slow, incremental grassroots activism" with people "coming together in the kinds of town meeting gatherings that sparked the colonists to rebel against the imperial rule of King George III." Not only is Irons's scholarship sloppy; the remedy he envisions is truly unbelievable. Why would anything change?