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12/03/2017

Judge Brett Kavanaugh on Judge David Barron on War Power
Michael Ramsey

At Lawfare, Judge Brett Kavanaugh reviews Judge David Barron's new book Waging War: The Clash Between Presidents and Congress, 1776 to ISIS (Simon & Schuster, 2016).  From the core of the review:

What does Barron’s survey of historical practice show us about those two major questions of war powers law?

First, Barron argues that, with rare exception, presidents from the founding to the present have led the nation into large-scale foreign wars only when they have obtained congressional authorization.

Commentators and the media sometimes say that presidents have often led the nation into war unilaterally and that presidents lawfully may do so. But Barron says that those assertions about the Constitution and historical practice are wrong.

Barron starts with the original understanding of the Constitution on this point. He explains that the framers themselves “leaned hard in Congress’s favor when it came to making the crucial decision between war and peace” (p. 22). The text of Article I of the Constitution grants Congress numerous war powers, including the power to declare war. The text of Article II makes the president the commander in chief, thereby ensuring civilian control of the military, among other things. But Article II does not afford the president, at least expressly, any other unilateral war powers. Barron points out that even Alexander Hamilton, who generally favored a strong executive, emphasized in “Federalist 69” that the president lacked the power to unilaterally take the nation into war.

As Barron describes it, that founding understanding has been followed throughout American history: Congress has authorized almost every substantial foreign war waged by the United States. Those wars include: the Quasi-War against France in the late 1700s, the War of 1812 against Great Britain, the Mexican-American War in the 1840s, the Spanish-American War in the 1890s, World War I, World War II, the Vietnam War (through the Gulf of Tonkin Resolution), the Persian Gulf War, the war against al-Qaeda and related terrorist groups beginning in 2001, and the war against Iraq beginning in 2003.

After painstakingly reviewing the text and original understanding of the Constitution, as well as longstanding historical practice, Barron concludes that Congress must authorize or declare war and that presidents do not have unilateral authority to take the nation into war. Barron recounts and concurs with Madison’s statement in the run-up to the War of 1812 against Great Britain: Whether to go to war is a question “which the Constitution wisely confides to the Legislative Department of the Government” (p. 85).

...

In short, Barron advances an important originalist and historical-practice case that presidents constitutionally must obtain—and ordinarily have obtained—congressional authorization to take the nation into any substantial foreign war.

And here is a description of the Barron book from Amazon: 

A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war.

The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress.

Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.

As readers of this blog well know, I agree with these conclusions as an originalist matter (as do, I think, most originalist-oriented legal scholars apart from Professor John Yoo).  I further think this topic poses a challenge to critics of originalism -- especially historians critical of the originalist enterprise.  If originalism is a fundamentally flawed approach, then the originalist conclusions regarding presidential war power advanced by Judge Barron and others must be wrong -- either because the Constitution actually established a different rule or because the Constitution's original meaning cannot be understood today.  But I'm not aware of any such arguments by originalist critics regarding presidential war power.