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08/31/2013

Garrett Epps on Syria and War Powers (Updated)
Michael Ramsey

At The Atlantic, Garrett Epps: The Authority to "Declare War": A Power Barack Obama Does Not Have.  From the conclusion:

This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between President and Congress. Sending our missiles against Syria is an act of war. If it is to be done, Congress, not the president, should approve. 

We are, of course, a long way from Philadelphia 1787, and much of what the Framers thought and intended is now obscure. But there's not much question they gave the power to commence war to Congress. The idea of a single chief executive arose within the first week of the Convention, and John Rutledge of South Carolina declared that "he was for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace." 

This theme carried through. The Framers gave Congress even the minor powers that go with making war -- prescribing military discipline, issuing letters of "marque and reprisal," etc. The Committee of Detail gave the entire power to "make war" to Congress, not the President; Madison moved the change to "declare," saying he did so to make clear that the president would have power "to repel sudden attacks." Before the vote to change that language, Elbridge Gerry spoke for many when he said he "never expected to hear in a republic a motion to empower the Executive alone to declare war." 

That is the power that, signs suggest, Barack Obama will exercise sometime this weekend or next week. 

(Thanks to Bryan Wildenthal at Thomas Jefferson Law School for the pointer).

Of course I agree.  But there's a key textual point to highlight here.  Professor Epps (and others who take a similar view) equate the constitutional term "Declar[ing] War" with the power to commence war.  That assumption is central to Epps' entire argument.  Obviously President Obama is not going to issuing a formal eighteenth-century-style document entitled "Declaration of War."  The President's action against Syria, whatever it may be, will be constitutionally problematic only if one thinks "initiating hostilities" is equivalent to "declaring war" in the constitutional sense.

Regular readers know that I do think  "initiating hostilities" is equivalent to "declaring war" in the constitutional sense.  But why would anyone think that?  It is not the obvious and exclusive meaning of the phrase.  People, both in the eighteenth century and in modern times, have described hostilities as begun without a declaration of war (or as we sometimes put it today, "undeclared" wars).  Used this way, there is plainly a difference between declaring war and initiating hostilities. Why is this not the constitutional meaning?

There is an answer, which I have tried to explain at perhaps too much length elsewhere.  Eighteenth century language, constitutional structure and the descriptions and assumptions of the founding generation show (a) that at the time "declar[ing] war" could mean initiating hostilities and (b) that this was the meaning expressed in the Constitution's text.  My point here, though, is that this is not an obvious meaning, accessible just from the face of the document.  It is one that can be uncovered and demonstrated only by reference to eighteenth century context and meaning.

Thus the declare war issue illustrates that textualism is not simply about reading a few words in the document and expecting answers to become immediately apparent.  It is also an investigation of what the words meant in the context in which they were written.  It is only through a study of that context that we can say with any confidence what the power to "Declare War" means.

RELATED:  John Yoo argues the other side here and here.  As to his second post -- which purports to summarize the academic argument against presidential war-initiation power -- I will say only that it simply does not engage or fairly represent the academic argument as it has been developed in the last 15 years.  Notably, (1) Professor Yoo asserts that the argument against the President "relies on legislative intent" when instead it relies in large part on the meaning of "Declare War"; and (2) Professor Yoo claims that there are only three items of evidence suggesting a lack of presidential power, whereas an enormous volume of evidence shows that every major framer who spoke on the issue assumed that only Congress had the power to initiate hostilties.

UPDATE (11:30 AM PDT):  CNN is reporting that President Obama will ask for congressional approval of military action in Syria.