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04/08/2017

Originalism, Nonoriginalism, and War Powers
Michael Ramsey

At Lawfare, Andrew Kent has a good post summing up the debate on originalism and war powers, with links to the key articles (thanks for including my contributions!).

The best originalist argument in support of the Syria strikes that I've been able to find so far is from Gregg Jarrett at Fox: President Trump's military strike against Syria is perfectly legal -- and it's not very good.  Here is his argument:

It is true that under Article 1, Section 8 of the Constitutional, only Congress has the power to declare war. But a singular strike against a limited asset hardly constitutes war. It is a military action intended to confront hostilities which does not rise to the level of a declared war as the Founders envisioned.

It is clear that the Framers recognized there would be times when the President needs to use immediate military force unilaterally and without the extensive time it might take for Congress to consider the matter, then debate it and approve it.  They chose to withhold from him only the power to declare war, not make war which was regarded as a vital emergency power allowed the president to counter or thwart foreign threats.

This is pure assertion.  How does he know that the Founders didn't think of a limited strike as a war in the constitutional sense?  Does he think that the U.S. President in 1789 could have launched a naval attack against a British base without consulting Congress?  What evidence is there that the founding generation would have accepted this unilateral action as constitutional?  If he's right, why did virtually everyone in the immediate post-ratification era think that limited naval warfare, as against France in the Quasi-War, required Congress' approval?

On his declare war/make war point, it seems clear that this is not what the framers were doing when they changed Congress' power from "make war" to "declare war."  Rather, they had two goals.  First, as Madison said, they wanted to give the President power to respond to attacks.  Second, they wanted to make clear that once war was authorized by Congress, the President had power to fight the war without further detailed directions ("make" in this sense meaning "carry on" as opposed to "initiate").  Jarrett does not provide any contrary evidence.

As Professor Kent shows, a wide range of legal scholars who have looked closely at the issue endorse the view that, as an original matter, presidential initiations of the use of force require congressional approval.  But this leads to several questions:

(1) We've been bombarded over the last few weeks with claims -- in a different context, of course -- that originalism does not lead to determinate answers on contested questions, or that only PhD-trained historians can understand what the Constitution's text really means.  So here is a chance to prove that.  I'm a practical originalist, not a theorist, and I want to see how these claims work in practice.  Please explain why President Trump has as good an argument on the original meaning as I and other legal scholars who have looked closely at the matter do.  Or, if you are a historian, please explain what it is that historians see that I and other legal scholars who have looked closely at the matter do not.  I'm happy to keep an open mind on this, as I have no particular stake in the constitutionality of the President's actions.  (On the merits, I think the idea may have been a good one.)  I'll be more persuaded, though, if the person arguing the other side is vehemently anti-Trump in other respects.

(2) If nonoriginalism is (or should be) our law, why isn't it clear that President Trump's actions are at least plausibly constitutional?  If you have an intuition that his actions are not constitutional, it's probably based on the idea that the framers wanted Congress to be involved in the decision to attack another country.  But that is an originalist intuition (a correct one, in my view).  Nonoriginalism turns principally on the question of the best allocation of power for modern conditions.  There are multiple arguments why presidential authority to launch these sorts of strikes is a good idea under modern conditions.  There are responses as well, but it's not clear how any of these can get past the "I think it's a good idea/I think it's a bad idea" argumentative stalemate.  It reduces to a policy question -- which branch should have the power?  That is not a question of interpretation or of law; it's a subjective question of how the Constitution should be designed.  Thus I do not see how a nonoriginalist could claim definitively that the strikes are unconstitutional.

The last point illustrates a key difference between originalism and nonoriginalism.  Originalism aspires to an objective measure.  Gregg Jarrett says the framers did not understand low-level hostilities to be covered by the declare war clause; I say they did. There's a right and wrong answer to that debate (although finding it may be a challenge).  It can thus be a foundation for a rule of law.  But if the question is what is the best design of government to account for modern conditions, congressional deliberation or presidential unilateralism, the answer can only be the subjective assessment of the decisionmaker.