July 19, 2006
July 19, 2006 01:07 PM
Marty Lederman has an informative open letter to Sen. Specter at Balkinization explaining that an inherent executive power does not mean indefeasible. Of course Marty's analysis is spot on, and I'm equally certain that the mouths eager to spout off any incredible defense of this executive will not pay any attention.
One thing that Marty glosses over is the conflict between Congress's power to regulate war and the President's power as Commander-in-Chief. Specifically I have the War Powers Act in mind. If my Poli Sci 101 memory serves me correctly, it was enacted over President Nixon's veto and every president since has claimed it is unconstitutional. Sadly, no one can ever have Article III standing to challenge the statute with the exception of the President seeking a declaratory judgment on the eve of an invastion (as if they don't want anything better to do) but I need not explain why that will never happen.
There's no conflict between legislative and executive war powers: There's overlap. (Which of course doesn't explain who should win. Jackson's metaphor in Youngstown is subtraction (president's powers "minus" Congress's); but that's not terribly helpful.)
As for the War Powers Act: Yes, that's the PoliSci 101 received wisdom -- but it's wrong.
It is arguable that section 5(c) of the War Power Act -- which requires a cessation of hostilities if both Houses of Congress vote for it by concurrent resolution -- is unconstitutional under Chadha (although I think the coutnerargument is stronger than sometimes assumed).
But the big question is whether section 5(b) is constitutional -- that's the provision that (roughly speaking) requires the President to cease unauthorized hostilities within 60 days if Congress has not authorized them in the interim. I think that's plainly constitutional, for what it's worth. The only formal OLC opinion pre-Bush agrees. See 4A Op. O.L.C. 185, 196 (1980). And not every President has said otherwise. (Nixon thought it was invalid, of course. And John Yoo reached out to say likewise in his 9/25/01 memo -- in which he characteristically failed even to cite, let alone distinguish or overrule, the governing 1980 OLC opinion. It's also suggested in a Reagan signing statement on Lebanon. But that's about it, as far as I know.)
Again this is based on my imperfect recall, but I know that Clinton went past the 60 days deadline in Kosovo (which led to the standing decision in Campbell v. Clinton, 203 F.3rd 19 (D.C. Cir. 2000)). I was too young to remember, but glossing over news accounts, the elder Bush did not think the War Powers Act applied to him with respect to starting the first Gulf War (though he eventually caved and obtained Congressional authorization). I can't speak to Reagan, Carter, and Ford without actual research.
But the general point I want to make is that the War Powers Act is an issue within Justice Jackson's "lowest ebb" that would squarely settle the question of a president's "inherent" and permanent powers with respect to war-making...if the issue ever reaches the courts. This of course ignores Republican attempts to remove the legislation and eliminate any limits on the executive. Who knows they might even strip the courts of jurisdiction to hear any cases challenging executive authority.
Our position in the Clinton Adminstration was not that the 60-day rule did not apply, or that the WPA was unconstitutional, but instead that Congress had *satisfied* the requirement of authorization. See http://www.usdoj.gov/olc/final.htm. A controversial view, to be sure -- but a far cry from concluding that we could ignore the statute.
Uh, our position on Kosovo, that is. Sorry about that.