Presidential War Powers

Introduction:   The War Powers of the President of the United States is a subject as old as the United States Constitution. The definition of the executive branch’s powers in Article I of the Constitution is purposefully vague and open-ended. The war powers of the president, however, seem to be better defined than other powers. The war powers defined in the Constitution belonged to both the Legislative and Executive branches. The Framers separated the war powers to create a balance that would not give one branch unilateral power to send the United States into war. Constitutional War Powers the Founding Fathers placed in two separate branches of the government have shifted almost entirely into the jurisdiction of the Executive Branch as a result of President Abraham Lincoln’s actions and The War Powers Resolution.

The Framers of the US Constitution skillfully separated the War Powers between the Legislative and Executive branches. The Legislative branch would have the power to declare and fund war while the Executive had the power to conduct war.

• Alexander Hamilton wrote in Federalist 74: “The President of the United States is to be ‘Commander-in-Chief of the army and navy of the United States, and o the militia of the several States when called into the actual service of the United States [emphasis in original].

• Alexander Hamilton again in Federalist 69: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature [emphasis in original]”

Abraham Lincoln set an unfortunate precedent when he declared war on the Confederacy. Faced with an unprecedented problem of needing the Congress to declare war while they were not in session, Lincoln decided to declare war and then ask Congress’s blessings after the fact. Despite usurping the power to declare war that was constitutionally Congress’s, Lincoln only did so in an extreme situation. His opinion on presidential War Power, however, did not change the decision he made when faced with the choice as president. Presidents will overstep their constitutional rights when faced with extreme circumstances and their steps have only gotten worse as history progressed.

• Lincoln writes about his opinion about War Powers before his presidency in a letter to William Herndon: “Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may be choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure.” p. 112

• Mr. Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center for Justice at NYU School of Law testified at a hearing in 2008 about Pres. George W. Bush’s actions as president commented on Lincoln’s actions towards Congress: ““…in the case of Lincoln, what he did, he said to the Congress, you know, ‘‘You may disapprove of what I have done. If you do, please criticize me. But I would like you to ratify what I have done.’’ And they did ratify what he did… Now, that is an enormously dangerous loaded gun, to pick up on that expression, that lies, unless it is squashed, that lies for future Presidents to take advantage of, future Presidents of either party” 180-18.

• Justice Robert Grier spoke on Pres. Lincoln’s actions after the fact in The Prize Cases, 67 U.S. 635, 668 (1863). While he believed the declaration of war to have been made under extreme circumstances and was rectified with the Congress at the soonest opportunity. He made sure to emphasize the defensive nature of the war and to assert: “The question is not what would be the result of a conflict between the Executive and Legislature, during an actual invasion by a foreign enemy, the Legislature refusing to declare war. But it is as to the power of the President before Congress shall have acted, in case of a war actually existing. It is not as to the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”

Finally, in 1973, Congress responded to their loss of constitutional power. They created the War Powers Resolution in an attempt to reclaim their power of declaration. However, the resolution only served to worsen the situation. The resolution requires the President to inform Congress of troop deployment within 48 hours and if Congress does not give their support he must withdraw the troops within 90 days. Congress instead found themselves writing away their own power.

• USC: Title 50 – War and National Defense, Chapter 33: War Powers Resolution is the Resolution Congress pushed through by 2/3 of Congress overruling a presidential veto by Pres. Nixon.

• Hearing Before the Subcommittee on International Organizations, Human Rights, and Oversight of the Committee on Foreign Affairs.

• A large number of testimonies concerning the War Powers for the 21st Century: The Constitutional Perspective
  • Jules Lobel, Esq., Professor of Law, University of Pittsburgh School of Law writes “…the War Powers Resolution has failed to serve its purpose and should be replaced by a more effective measure…”

• Louis Fisher, Ph.D., Special Assistant to the Law Librarian, Law Library of Congress mentions the predicament in which Congress would find themselves. Their popularity and possibly their jobs would be on the line if they voted against the troops.
  • So you are then locked into the kind of fight that Newt Gingrich had with Bill Clinton about whether you are basically going to close down the government over this particular dispute. That is not really an effective way of wielding the appropriations power.

• President Obama’s Administration faces criticism concerning his War Powers. He committed troops to the international mission in Lybia without their permission. White House Representatives said he followed the Resolution by notifying them within 48 hours. Public opinion, however, forces Congress to ‘support the troops’ and discourages them from taking drastic actions.

Conclusion: The Founding Fathers of the United States wrote a Constitution to protect their new country. Besides protecting life and liberty, it established the three branches and balanced their power. The War Powers – declaration and practice of war – were split between the Executive and Legislative branches. The Framers feared placing too much power in one man or in one body. However, by creating a living document in the Constitution, they allowed for it to eventually evolve into something new. Abraham Lincoln also saw the problem that could arise in placing too much power in the President’s hands. Despite his original convictions, emergency circumstances forced his hand. By momentarily circumventing the text of the Constitution he opened the door later presidents to manipulate the meaning and text of the War Powers. Eventually Congress attempted a resolution to limit the Presidential War Powers that failed when put to the test. Today’s War Powers reside almost entirely in the hands of the President. While Congress can technically force him to withdraw his troops or cut off funding, public opinion forces their lack of action. The original framers of the Constitution would unfortunately find the current situation unrecognizable from their original intent.

 

 

Reflection:

Writing a research paper can be very challenging if you do not know how to utilize all the opportunities given you by others in your field. The Internet has provided many new opportunities for research. Depending on the age of your subject you face different levels of access. A more political topic, like Presidential War Powers, granted access to different types of databases including history, law, and political science. Government departments have done a good job digitizing their documents. Access to different law documents and Supreme Court opinions were easily found on multiple sites. Access to opinions on cases from Marbury v. Madison to Florida v. Department of Health and Human Services is important for historians. Documents and opinions that were once available only to law students in dusty corners of libraries are now available to anyone with a computer. Access to these documents provides opportunities for personal interpretation. Secondary sources no longer provide our only access to personal letters of historical characters. The opportunity of interpretation grows with each newly digitized item.

However, with so many items digitized a day, new challenges arise for researchers. Students just beginning their career as a historian face a daunting amount of information. When starting the research process secondary sources provide helpful direction. However, if an untrained historian were to attempt to begin their research in the primary sources, the amount available would quickly bog them down. Researching primary sources on the Internet requires direction and a certain amount of skill. Despite the newness of digital researching, learning how to navigate the Internet is simply a new technique historians will have to learn if they do not want to become obsolete. This new digital trend in history will not only create new jobs for grad students in Public History programs but also open the practice up to amateurs. Museums and archives can look forward to finally sharing the hidden treasures in their vaults. Digitized sources provide opportunities for researchers as well as those who make and public history their careers.

Compatibility is another issue that crops up with the digitization of primary sources. Most museums, universities, archives, and libraries have their own digital archive today. Each institution has their own method of cataloging that may or may not match with the same artifact in other locations. Every source is legitimate but buried in confusing programming jargon unique to each database. There is also a hierarchy of the items provided to the public. Documents belonging to “great men” are unsurprisingly a priority to provide to the public. Items belonging to little known people are preserved and usually digitized, but little effort goes into making them available to the average person. While this preference is understandable, it leaves holes in historical understanding. By relying only on the figureheads, it is very easy to miss the people who created and supported everyday life.

Forgery and imitations have been the bane of historians for centuries. The digital age brings with it any number of false texts and images. While researching it is in the hands of the historian to determine the reliability of the source. With so many databases controlled by universities and federal institutions, reliable sources are relatively easy to find. With every legitimate database, however, one can find less reputable sites. Young historians may find Wikipedia tempting and a fast way to ‘research’ their topic. Online publications also provide a less honest option for students easily swayed by the option of plagiarism. Even in the historical world the Internet provides temptation for the weak willed.

While doing my research I found the documents for my topic readily available. Not once did I look for an opinion of a Justice and find myself out of luck. When looking for sources on a political topic like War Powers I faced less challenges than if I had chosen a lesser-known subject. The databases and secondary sources I searched typically belonged to universities or federal departments, so I never had to worry about the legitimacy of my site and the sources it provided. The challenge I faced was the large amounts of opinions available with little citation. People from politicians to journalists have something to say about War Powers. Swimming through the opinions down to the legitimate sources was time consuming and occasionally aggravating. However, when I found the appropriate secondary sources it was very easy to find the correct direction for my research. Further research into different violations of the Constitutional War Powers by presidents in the modern era would provide more depth to my paper and only strengthen my thesis. Digitized primary sources provide more opportunities than drawbacks to the modern historian. The more items available for public scrutiny and interpretation the more historians can dig into the sources and try to find that elusive source that will change the way we think.

 

 

Annotated Bibliography

Works Referenced

• The Avalon Project, Alexander Hamilton, “The Federalist Papers: No. 69” avalon.law.yale.edu, (accessed October 2012).

• Website dedicated digitizing material of importance to the fields of Law, History, Economics, Politics, Diplomacy and Government. Every section of the Federalist Papers has been made available in easy to read script. This made searching the Federalist Papers or other digitized documents quick and easy when looking for specific keywords and topics.

• Benedict, Michael, Blessing of Liberty: A Concise History of the Constitution of the United States. Boston: Houghton Mifflin Company, 2005.

• This secondary source was a good starting point. Using the index it was easy to find different figures in history that were important in the history of the War Powers. Abraham Lincoln stood out in Benedict as a good place to start about the text of the constitution versus the interpretation.

• Books.Google.com, Hamilton, Alexander, The Federalist 74 Books.google.com (accessed October 2012). Or Abraham Lincoln (Volume 1); Complete Works, Comprising His Speeches, State Papers, and Miscellaneous Writings, books.google.com/, (Accessed October 2012)

• Google Books has a massive collection of digitized books and articles. Ironically I find that the older the book or article the more likely I am to be able to find it on this database for free. In the case of the War Powers issue the most useful work I found was The Federalist Papers in their entirety. This collection of work written by Alexander Hamilton, James Madison, and John Jay provides an invaluable insight into thoughts of some of the US Founding Fathers.  And also a compilation of Lincoln’s writings.

• Cornell University Law School, “Legal Information Institute”, www.law.cornell.edu/, (accessed October 2012).

• Provides a catalogue of legal documents and resolutions. Provides access to War Powers Resolution in its entirety along with notes and any possible updates that have been made to the original resolution. The site provides more than just the original words but will continue to update any adjustments made or any laws affecting the code.

• Dinan, Stephen,  “Bipartisan Congress rebuffs Obama on Libya mission”, The Washington Times, 3 June 2011, www.washingtontimes.com, (accessed October 2012).

• Contains articles of nearly every topic possible. Provides current news and opinions on subjects like the War Powers Resolution and the Obama Administration.

• FindLaw: For Legal Professionals, launched 1995, caselaw.lp.findlaw.com (accessed October 2012).

• Website for legal professions containing scripts and texts of a large number of different court decisions ranging from local to supreme court judgments.

• Fisher, Louis. Presidential War Power. Lawrence, Kansas: University of Kansas, 2004.

• He had good comments that lead me towards comments about Lincoln and his actions before and after his presidency about the power of the president.

• Fisher, Louis: The War Power: Original and Contemporary. American Historical Assn., 2008

• Collection of essays concerning the War Power. Both fortunately and unfortunately Google books only had a snippet view on Lincoln and the Civil war.

• The Founder’s Constitution, Martin v. Mott, press-pubs.uchicago.edu/, (accessed October 2012).

• Website dedicated to collecting sources on the Founders of the Constitution. Federalist papers, Supreme Court hearings and opinions, etc. For topics concerning the constitution this site is extremely helpful when seeking specific items like the court case Martin v. Mott – in which the Court ruled that it was constitutional for Congress to vest the president with the discretionary authority to decide whether an emergency had arisen and to raise a militia to meet such a threat of invasion or civil insurrection.

• House Committee on Foreign Affairs, http://foreignaffairs.house.gov, (accessed October 2012)

• Contains text from hearings concerning foreign affairs and international relations. I was able to find a pdf of a hearing containing a discussion of the constitutionality of the War Powers Resolution and its effects

• O’Brien, David M. Constitutional Law and Politics: Struggles for Power and Governmental Accountability, vol. 1, ed. 2. New York: W.W. Norton and Co., 1991.

• O’Brien discusses the War Powers Resolution and Congress’s intentions. Provided useful insight into possible interpretations and use the original Resolution as his source.

• Scribd: The World’s Largest Online Library, www.scribd.com, (accessed October 2012).

• Online library containing providing digital copies of books. Like Google books this simply provides an opportunity to access books from your couch. Found a book that talked about Abraham Lincoln and the War Powers. The book had primary sources along with the author’s explanation. Instead of using the author’s interpretation I found his primary sources online and interpreted them myself.

• US Government Printing Office: Keeping America Informed, “Executive Power and its Constitutional Limitations”, www.gpo.gov, (accessed October 2012).

• A site hosted by the Printing Office that takes up the charge from Congress in 1813 to make information concerning the branches of the Government accessible to all Americans. You can find digitized articles written by and for all levels of the government. I was able to specify a search for War Powers and found articles like a hearing on Executive Power and its Constitutional Limitations concerning the possible impeachment of Pres. George W. Bush.

• United States Senate Committee on the Judiciary, “Testimony of Louis Fisher”, www.judiciary.senate.gov/, (accessed October 2012).

• Louis Fisher appeared before the Senate Committee on the Judiciary and spoke on “Exercising Congress’s Constitutional Power to End a War.” He mentions Justice Grier and his opinion on Lincoln’s actions among other helpful topics on the subject.