Antonio F. Perez (Catholic University of America (CUA) – Columbus School of Law) has posted A Whole Text Reading of the War Powers Clauses: Why the Constitution's Text Obviates Esoteric War Powers Debates and Encourages Policy Flexibility and Democratic Accountability (Georgetown Journal of Law & Public Policy, Vol. 12, Pp. 861-72 (2014)) on SSRN. Here is the abstract:
This paper is a lightly-footnoted and modestly expanded version of my presentation at the Georgetown Journal of Law & Public Policy Symposium’s panel on Executive War Powers, Syria, and President Obama’s “Red Line” — Did President Obama Have the Power to Use Force in Syria without Congressional Approval? While criticizing the President’s policy decision, this paper argues that the President would have been well within his authority to use force. Relying on a whole text reading of the relevant constitutional provisions, it argues that the President’s authority to use force is virtually plenary, while Congress’s authority is limited to governing the legal effects of war and limiting executive discretion solely through the power of the purse. It rejects functional arguments in constitutional interpretation, but it recognizes that functional arguments in our modern Age of Terror happily confirm conclusions that can be reached by textualist modes of constitutional interpretation. Finally, it argues that these conclusions reinforce constitutional and democratic accountability and are not seriously undermined by any possible international law limits to presidential discretion.
I agree that the text, in isolation, can be read in the way the author proposes. But I don't think it must be read in that way; the text is subject to two possible meanings. As a result, it's important to investigate how people of the time appeared to read it. On a quick read, Professor Perez largely does not deal with the way the founding generation appeared to read it (other than to dismiss evidence from the drafting convention as irrelevant because it was not public). I think this is a mistake, because the founding-era evidence is very strong in favor of a shared understanding of limits on the President's war power.
RELATED: Via Opinio Juris, here is video of a panel on war powers in which Julian Ku (Hofstra) also expresses a broad view of the President's power to use force. As he summarizes:
In 2008, then-candidate Barack Obama stated that he believed the President cannot constitutionally use military force absent congressional authorization except in response to an imminent attack or threat. But since he has taken office, the President has abandoned this view, most notably in a legal memo from his Justice Department justifying military intervention into Libya. In my view, this shift provides strong evidence that the strict congressionalist view of presidential war powers is untenable. I concede that there may be other limits on unilateral presidential use of force (e.g. congressional prohibitions, long-term interventions amounting to a “war”, etc.) but we should no longer take seriously the strict congressionalist position articulated by Candidate Obama in 2008.
I mostly agree with Candidate Obama as a matter of original meaning. I'm not sure what Professor Ku means in calling this position "untenable" beyond the reasonable observations that (a) people tend to get a broader view of presidential power once they become President and (b) without judicial oversight it's hard to enforce constitutional limits on the President. As to the Libya action, it seems (to me) an entirely tenable position that the President should have gotten congressional approval — and if approval was not forthcoming, he should not have taken the action; it also seems clear in retrospect that the Libya action was not necessary to national security and arguably was detrimental to it.
To connect Libya and Syria: I think one can tell a story here about constitutional limits on the President. The Libya action was strongly criticized in commentary as contrary to the Constitution and the War Powers Act. That criticism was fairly recent when the Syria situation arose (and the Libya intervention had not led to a policy success). Rather than establishing a precedent for unilateral action, the Libya action seemed at that point to suggest presidential overreach. The President may have been reluctant to undertake another arguably unconstitutional unilateral action, especially one with dubious chances of success. Since Congress seemed unlikely to approve, the President decided not to act — which, whatever the policy merits, was the correct constitutional outcome. How much truth there is to this story is debatable, but it is at least one way of looking at the matter.
Posted at 6:27 AM