Academic journal article Policy Review

A Conveniently Unlawful War

Academic journal article Policy Review

A Conveniently Unlawful War

Article excerpt

BEFORE CONGRESS APPROVED the use of force against Iraq in October 2002, and before the war began, some in the Bush administration believed that the president had constitutional power as commander-in-chief to attack Iraq without congressional authorization. Their theory was unconvincing, presupposing, as it did, a concentration of power in the presidency that found scant support in the constitutional text, the intent of the Framers, prior case law, or subsequent custom and practice. (1) Still, the view lives on, and to its adherents it would no doubt seem but one small step to conclude that that same broad constitutional power would now permit the president to continue to wage war in Iraq even if Congress did not approve.

A small step, but a mistaken one.

For the view rests upon a theory of concurrent power that pertains only where Congress is silent--not where Congress has spoken and set limits, as it has regarding Iraq. As the Supreme Court ruled 200 years ago in three seminal war powers cases, when Congress sets limits, those limits control.

These three cases, brought during the undeclared naval war with France in the 1790s, invalidated the seizure of enemy shipping by U.S. naval vessels. Congress had authorized the use of force, subject to specified limits. The president exceeded those limits, the Court concluded, and his acts were struck down. Congress, it found, can both declare war generally and can authorize limited or "imperfect" war--war with defined objectives and restrictions. The president, the Court made clear, is obliged to respect congressional restrictions when Congress has authorized imperfect war. In an imperfect war, Justice Bushrod Washington said in the 1800 case of Bas v. Tingy, 4 U.S. 37 (1800), those "who are authorized to commit hostilities ... can go no farther than to the extent of their commission." The following year, in Talbot v. Seeman, 5 U.S. I (1801), Chief Justice John Marshall wrote that "[t]he whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this enquiry." In Little v. Barreme, 6 U.S. 170 (1804), Marshall wrote that "the legislature seems to have prescribed the manner in which this law shall be carried into execution," and the legislative limits therefore controlled.

These cases, decided in the earliest days of the Republic, have never been overruled. (One of the cases, Little, was relied upon by Justice Tom Clark in his concurring opinion in the Steel Seizure case (2) as providing the controlling rule of law.) They remain good law and they are directly applicable to Iraq. Congress did not declare war generally against Iraq but authorized an imperfect war with limited objectives. In the language of modern constitutional jurisprudence, measures exceeding the conditions of an explicit congressional authorization are "incompatible with the expressed or implied will of Congress," and place the president's commander-in-chief power at "its lowest ebb." (3) The Supreme Court has used this framework time and time again in analyzing separation-of-powers disputes. (4) The upshot is of monumental importance: When Congress has spoken and set limits, the president cannot infer authority to wage war from the commander-in-chief clause. Authority to wage war must then come, if at all, from Congress. If the limits imposed by the Congress are exceeded, then the war stands without legal authorization. In the words of the Court: "Executive action under legislatively delegated authority ... is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review." (5)

Statutory authorization

THE QUESTION, THEN, is what legislation is in force that delegates authority to the executive to wage continuing war in Iraq, and what limits that legislation imposes. Only two statutes exist from which the president might conceivably infer such authority to wage continued war in Iraq. …

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