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09/05/2013

More from Garrett Epps on War Powers
Michael Ramsey

Garrett Epps comments:

Your post says: " 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."
 
I think that's an invalid inference from what I wrote [ed.: in this post], which was intended (whatever that means) to express the converse--that the power to commence war, except when hostilities are required by a "sudden attack" on the US, its armed forces, or its civilians, or by a valid treaty "made under the authority of the United States," does reside with Congress, whether the war is "declared" or not. It's not based on the two words "declare war" but on a reading of all of Article II and a study of subsequent history.  I explain more fully here:
 
http://www.theatlantic.com/politics/archive/2013/09/Yes-Congress-Can-Authorize-War-Without-Formally-Declaring-It/279261/

The linked post, Yes, Congress Can Authorize War without Formally Declaring It, is an interesting one, and I agree with its conclusion.  As Professor Epps points out, a congressional authorization for the President to go to war is not the same as a declaration of war (even if you think, as I do, that "declaring" can be done by words or action).  So how is it that Congress can authorize presidential wars?

As I discuss in this article, I think what is going on, constitutionally speaking, with authorizations is that Congress is delegating its power to declare war to the President.  Authorizations are not mandatory; the President has discretion whether to take hostile action.  If the President does take hostile action, war has been declared; if he doesn't, it hasn't.  Thus it is really the President that decides on war.  (Hence the article's title: "Presidential Declarations of War").  But where there is an authorization, the President does so because Congress has given him (delegated to him) the power to decide/declare.

Does that make it constitutional?  That depends on what you think of the non-delegation doctrine.  Some leading originalists, notably including Gary Lawson, flatly argue against delegation as a general matter.  I hesitate to disagree with Professor Lawson on anything (though sometimes I do), but I think he overstates on delegation of war powers, in any event.  As Professor Epps points out, congressional authorizations of war date to the immediate post-ratification era: the 1798 naval war with France proceeded under statutory authorizations that permitted the President to respond to France's attacks on U.S. shipping.  Congress also authorized military action against Tripoli in 1801.  Again, post-ratification practice is not conclusive, but it is suggestive of original meaning.  At least where the war delegation is reasonably specific (as it was in the conflict with France and Tripoli) there's some good ground for seeing it as constitutional.

So I come out at the same place as Professor Epps on this issue, although by somewhat different reasoning.   I don't think Congress has a general power over all things military.  The itemization of specific military powers in Article I, Section 8 doesn't imply a general power -- quite the opposite, it indicates that Congress has only the powers granted.  But those granted powers are themselves very broad.