Statement of Professor Jules Lobel

calamities,”³ and therefore wanted to provide what Jefferson termed an “effectual check on the dogs of war.”⁴ They sought to slow down or “clog” the process of initiating warfare by providing careful review by independent minds, thus ensuring that the United States would not, as a key framer James Wilson put it “hurry . . . into war.”⁵ Second, they were suspicious of allowing the Executive to make the decision to go to war alone, for many agreed with Madison that war “in fact is the true nurse of executive aggrandizement.”⁶ Third, they wanted broad democratic participation in the momentous decision to initiate warfare, and therefore required the approval of a broadly representative legislative body. Therefore the Constitution provides that only Congress can initiate warfare—whether it be major military conflicts, small skirmishes or little wars—with the sole exception that the President can use force to respond to a sudden attack against us.

These reasons are as valid today in the 21st century as they were in the 18th century. Madison’s claim that, “in no part of the Constitution is more wisdom to be found, than in the clause which confides the questions of war or peace to the legislature and not to the executive department,”⁷ has been affirmed by the last half century of our history, which demonstrates the need for more independent review by Congress before going to war, not less. While the nature and source of the threats to our national security have dramatically changed since the 18th century, the cost of warfare in lives lost, injuries suffered, and national resources expended is even greater today than it was in 1787. Indeed, one lesson of the current Iraq war is that the need to put a brake on the rush to war and ensure that independent minds evaluate whether war is really necessary is still as compelling today as it was in 1787. Today the rule of law encapsulated in the Constitution and our treaty commitments requires the authorization of not only Congress but also the U.N. Security Council before the United States initiates non-defensive warfare.

Modern Presidents have distorted our constitutional framework, engaging in dozens of military actions against other nations without first seeking the constitutionally required consent of Congress. Moreover, they have articulated broad theories of Presidential power under which the President alone can use force in a broad array of circumstances. As President George H. W. Bush colloquially stated, “I didn’t have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait.”⁸

For example, Post World War II Presidents have claimed that smaller uses of military force, such as the Clinton Administration’s planned invasion of Haiti in 1995 do not rise to the level of war requiring congressional approval. The Justice Department in Dellums v. Bush took the even more extreme position that the term war had no fixed meaning whatsoever and therefore what was a war for purposes of the Declare War Clause could not be determined by a court. This position is in error and was fortunately rejected by Judge Greene in the Dellums case. The Article I congressional power to declare war is not limited to the formal power of issuing a declaration, nor to authorizing full-scale wars, but was intended to give Congress the power to decide whether the United States should initiate any offensive military hostilities, however big or little, or for whatever purposes.⁹

Moreover, to the extent there is any doubt as to the meaning of the Declare War Clause, the clause immediately following it gives Congress the power to “grant letters of Marque and Reprisal.” In the 18th century, Letters of Marque and Reprisal had two meanings. The first, now obsolete, referred to authorization given to private merchantmen to fight the enemy. Second, and still relevant today, letters of marque and reprisal referred to imperfect wars, special wars, limited wars, reprisals—all of which constituted hostilities that were something less than full-scale war.¹⁰ For example, both Alexander Hamilton and Secretary of War James McHenry advised President John Adams in 1798 that any use of American naval force beyond repelling attack on the nation’s seacoast, armed vessels or commerce within American waters, “comes within the sphere of reprisals and . . . requires the explicit sanction of that branch of the government which is alone constitutionally authorized to grant letters of marque and reprisal.”¹¹

Various Administrations and their supporters have also argued that the traditional limit of the Commander in Chief’s power to repel sudden attack or resist invasion no longer controls in the modern world. The Justice Department argued that the President had the unilateral power to send troops to Vietnam because the interdependence of the 20th century world meant that all warfare anywhere in the world might “impinge directly upon the nation’s security.”¹² Similarly , The Bush Administration acknowledged the Iraq Resolution passed by Congress in 2002 as a “resolution of support” but claimed that the President had independent authority to use force “to deter, prevent or respond to aggression on other threats to U.S. interests.”¹³ Therefore, modern Presidents have articulated a constitutional power to send forces into combat whenever they detect threats to national security. This vision of Commander in Chief clause merges war and peace, offensive action and defensive conduct. If any threat to United States security around the world actives the executive’s war powers, then the distinction between the executive emergency power to repel an attack and congressional power to authorize the introduction of U.S. forces into hostilities loses significance. As Judge Greene noted in Dellums v. Bush, such a reading of the Constitution would essentially write the Declare War Clause out of the Constitution.¹⁴ Moreover, it would be incredibly dangerous to allow the President alone to decide to attack Iraq, North Korea or any other nation he or she deems a serious threat to U.S. national security.

Finally, it is important to note that the President’s Commander in Chief power to repel sudden attacks is an independent but not preclusive emergency authority. The President has the independent constitutional authority to use American forces in self defense until Congress can meet and decide what to do, but that independent power is not a sole, exclusive power which Congress cannot limit or restrict. Congress can limit the President’s “repel attack” authority to a certain time period. Congress also could have prohibited the President from responding with nuclear weapons to a Soviet attack on American forces in Europe, or from attacking China in response to an attack on U.S. forces in Korea. The President’s Commander in Chief power to repel attacks allows him to act in self defense, independent of congressional authorization where Congress is silent, but not to act in disregard of affirmative restrictions that Congress enacts.

The War Powers Resolution

The War Powers Resolution attempted to restore Congress’s primacy over decisions to go to war. Nonetheless, virtually all observers recognize that the Resolution has failed. Every President since the enactment of the Act has considered it to be unconstitutional. Presidents have generally not filed a report starting the 60-day clock running, despite repeated executive introduction of armed forces into hostile situations in Indo-China, Iran, Lebanon, Central America, Grenada, Libya, Bosnia, Kosovo, or Somalia. Congress has usually not challenged this non-compliance. And the judiciary has persistently refused to adjudicate claims challenging executive action as violative of the Resolution, holding that members of Congress have no standing to seek relief, or that the claim presents non-justiciable political questions.

The War Powers Resolution was flawed in several key respects. The first flaw was that the Resolution imposed no operative, substantive limitations on the Executive’s power to initiate warfare, but rather created a time limit on the President’s use of troops in hostile situations of 60 days absent explicit congressional authorization.¹⁵

This approach was a mistake, as some astute members of Congress such as Senator Eagleton and Congressman Dellums recognized at the time, because as a practical matter it recognized that the President could engage in unilateral war making for up to 60 days.¹⁶ But the Constitution requires that Congress provide authorization prior to initiating non-defensive war, not within 60 days after warfare is initiated. As history has demonstrated time and again, it is difficult to terminate warfare once begun; the key time therefore for Congress to weigh in is before hostilities are commenced, not within 60 days afterwards.

Second, the War Powers Resolution correctly recognized that congressional silence, inaction or even implicit authorization was insufficient to authorize the President to engage in warfare, but failed to provide an adequate mechanism to enforce that basic principle. The automatic termination provision in Section 5(c) requiring that the President terminate any use of United States forces in hostilities or imminent hostilities after 60 days unless Congress affirmatively declared war or specifically authorized warfare proved to be unenforceable. Presidents simply ignored it, Congress had an insufficient interest in enforcing it, and the courts responded by saying that if Congress did nothing, why should we.

Congressman Campbell’s effort to enforce the War Powers Resolution during the Clinton Administration’s air war against Yugoslavia in 1999 provides a vivid example of the Resolution’s unenforceability. Through tremendous persistence, Campbell managed to invoke the priority procedures of the Resolution and force Congress to vote on whether to authorize the war. The House voted against declaring war by a lopsided margin, against requiring the President to withdraw troops, and, by a tie vote against authorizing the war. Moreover, both the House and Senate voted to appropriate funds for the war. Campbell and two dozen other members of Congress filed a complaint in Federal District Court seeking to enforce the Resolution. The President was in clear violation of the Resolution since more than 60 days had passed since United States warplanes had commenced hostilities against Yugoslavia. The House had refused to authorize hostilities, and the Resolution explicitly denied the President authority to continue hostilities based on congressional enactment of appropriations for the war unless such provision specifically authorized hostilities. Where Congress is too divided, conflicted, or unsure to affirmatively authorize warfare, both the Constitution and the War Powers Resolution require that the United States not go to war. What had in effect occurred was that Congress had not wanted to specifically authorize the war because many members disagreed with it, but neither did it want to be responsible for forcing the President to terminate it. That situation was contemplated by the Resolution, which required explicit, affirmative authorization.

Nonetheless, the judicial response to Campbell’s claims was that congressional refusal to authorize the war was insufficient to invoke judicial enforcement because “Congress has a broad range of legislative authority it can use to stop a President’s war making . . . .”¹⁷ Congress could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign, or Congress could have cut off funds for continuing the war. Indeed, every time I argued a case seeking to enforce the constitutional or statutory mandate that Congress affirmatively authorize war—in the Central American cases of the 1980s, the first Iraq War before Judge Greene in 1990 or the Kosovo case almost a decade later—judges said in effect “why should I enforce congressional war powers when Congress will not.” The answer I gave was that to require Congress to act affirmatively to stop a war reversed the Constitution’s presumption that the President was required to obtain explicit, affirmative congressional authorization to go to war, not that he or she could go to war unless Congress could muster a majority to stop the war. Congressional silence is sufficient constitutionally to deny the President authority to go to war; nonetheless it was insufficient to force either the President to terminate warfare or to get the Courts to do so on behalf of members of Congress.

The difficulties of enforcing a congressional mandate requiring legislative action to review executive emergency action is not unique to the War Powers Resolution. The 1976 National Emergencies Act sought to ensure congressional review of any executive invocation of emergency power by mandating that within six months of the declaration of a national emergency, “each House of Congress shall meet” to consider terminating the emergency.¹⁸ Nonetheless, Congress has not considered and voted on whether to terminate the emergencies declared by the President since 1976, despite their continuation for years. When plaintiffs injured by a presidential invocation of emergency power sought relief in federal court, the First Circuit Court of Appeals held that there was no legal remedy for a congressional failure to comply with the statute.¹⁹

III

Revising the War Powers Resolution

I believe that it is necessary and possible to reform the War Powers Resolution, and that H.R. Res. 53 is an excellent step in that direction. The first, crucial revision contained in the new statute is the language in Section 3 prohibiting the President from initiating warfare without clear authorization from Congress, unless he or she is acting to repel armed attacks on United States territories, troops or citizens.

Various administrations and commentators have argued that the situations in which the President requires independent authority to use American forces in an emergency cannot be limited to repelling or responding to an armed attack. The original Senate 1973 War Powers Legislation upon which Section 3 is modeled was criticized as being unduly restrictive of the President’s power to use American armed forces abroad. The various attempts by Senators Biden and others in the late 1980s and early 1990s to reform the War Powers Resolution ran into difficulties in attempting to define exceptions to deal with a broad range of emergency situations. For example, Senator Biden’s proposed 1988 Use of Force Act would have authorized the President to use U.S. troops “to respond to a foreign military threat that severely and directly jeopardizes the supreme national interests of the United States under extraordinary emergency conditions that do not permit sufficient time for Congress to consider statutory authorization,” and “to participate in emergency actions undertaken pursuant to the approval of the United Nations Security Council.”²⁰ These exceptions would constitute enormous, and in my opinion unwarranted loopholes in the legislation that would essentially eviscerate the prohibition on unilateral Executive use of force. In my opinion, H.R. Res. 53’s approach is fundamentally sound in only allowing the Executive to use force without congressional approval to respond to attacks on U.S. territories, troops or citizens.

One could, of course, hypothesize a myriad of situations where the nation might want the Executive to use force to respond to an emergency which did not constitute an attack on U.S. territories, troops or citizens. But the actual Executive uses of armed force in the decades since 1973 do not support the exceptions that various Administrations have claimed are necessary to protect national security. Can one think of any case in the past several decades where the President launched an armed action against another nation or terrorist organization but had no time to secure advance authorization from Congress? The air strikes against Libya in 1986, Baghdad in 1993 and again in 1998, Afghanistan and Sudan in 1998 and Yugoslavia in 1999 all could have been authorized by Congress in a timely manner before they were initiated. Military effectiveness merely required that the details and timing of the operation be secret—but there was sufficient time for Congress to decide whether to authorize those actions. The Panamanian and Haitian invasions were threatened for months and involved long-standing tensions. The Panamanian and Libyan operations were discussed for many months before they were actually launched. The Grenada invasion was arguably time driven, but only if you accept the implausible and factually inaccurate proposition that the operation was a direct response to the threat that American medical students would be taken hostage. Both of our attacks on Iraq in 1991 and 2003 took place after many months of military buildup and threats to invade, and after congressional authorization. Moreover, launching a surprise attack against a nation that has not attacked us ought not be a reasonable justification for avoiding the constitutional process. The phrase “repel sudden attacks” simply cannot, with any rationality, be turned into a justification for “launching sudden attacks.”

Today, as in 1787, the reality is that American national security can be adequately served if the President’s power to use American forces in combat unilaterally is reserved to repelling attacks or imminent attacks on American troops or territories, and evacuating citizens under attack. And repelling means just that; it does not mean retaliating for an attack on an American citizen or soldier that took place several days, weeks or months before. The President can respond defensively to attacks that have been launched or are in the process of being launched, but not to rumors, reports, intuitions, or even informed intelligence warnings of attacks.

Moreover, Congress has demonstrated that where United States national security is seriously threatened, it can and will act quickly. On September 14, 2001, just three days after the September 11 attacks, Congress authorized the President to use military force against the perpetrators of those attacks. In all likelihood, congressional authorization could have been secured even earlier had the administration not initially sought an overbroad authorization. So too, the Clinton Administration could have sought quick congressional authorization to use military force in 1998 against the perpetrators behind the August 7, 1998 bombings of the American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, or the 1993 World Trade Center bombing.

It is true that many situations will be murky, complicated or divisive and therefore that quick congressional action will not be forthcoming. But in those cases, the United States should not use military force until a substantial consensus develops in Congress and the public that military force is necessary, appropriate and wise.

While there might be rare future emergencies not covered under the repel armed attack exception in which we might want a President to act unilaterally, the solution is not to accord the President broad emergency authority or to dilute the statute with a host of exceptions. For as Justice Jackson said in Youngstown, “emergency powers kindle emergencies.”²¹ The better approach is to accept that in the rare situation where the force is really necessary and appropriate, and there is no time for Congress to meet to authorize warfare, the President should act openly and unconstitutionally and immediately seek congressional and public ratification of such action. That was what both President Jefferson and President Lincoln argued should be done when faced with such grave emergency crises.

From this constitutional perspective, section 3 of the Constitutional War Powers Amendments of 2007 correctly provides that the initiation of hostilities by the armed forces may only occur when authorized by Congress or in order to repel an armed attack upon the United States or its armed forces and citizens located outside the united States. I am troubled, however, by the language in Section 3(a), (3) and (4) that provides the President with the authority to use force “to the extent necessary” to repel such attacks. I realize that the probable intent of that language is to limit the President’s use of armed force to only that force which is essential to repel an attack, but the phrase “to the extent necessary” seems vague, and could be read by future Presidents to justify a preventive use of force where he or she believes it necessary to repel or prevent a future attack on the United States or troops. That is not what the drafters of this statute intended, but the language could be subject to misinterpretation. As then congressman Abraham Lincoln argued in 1848,

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repell an invasion . . . and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect.²²

I would therefore remove the words, “to the extent necessary,” and substitute “to repel an armed attack or such an imminent attack that the President has no time to obtain congressional authorization.”²³ I would also remove 3(B) which permits the President to take necessary and appropriate retaliatory actions in the event of such an attack. This provision, which seems to me a Cold War vestige contained in the original Senate War Powers Bill, is not necessary because the President can use force to actually respond to an attack and Congress should fairly quickly authorize whatever force is necessary to defend against an ongoing attack and respond to the aggressor.

I would also like to comment on the enforcement measures contained in the bill. Sections 3(b) and 6(c) prohibit the use of appropriated funds for any executive use of force that is unauthorized under the statute is a welcome strengthening of current law. Nonetheless, a President who claimed that the statute was unconstitutional and initiated hostilities in disregard of the statute would undoubtedly use appropriated funds to do so, forcing Congress into the difficult position of having to decide whether to authorize funds for troops engaged in combat.

The bill also tries to reverse the judiciary’s past refusal to intervene to prevent presidential unilateral war making by providing that members of Congress have standing to challenge a violation of the law in federal court. I am doubtful that this provision will accomplish its objective. In Raines v. Byrd, the Supreme Court held that members of Congress suffer no concrete injury sufficient to confer Article III standing in federal courts when they claim injuries not in any private capacity but solely because they are members of Congress.²⁴ The Court so held despite a provision in the statute at issue that specifically provided that any member of Congress could bring an action in federal court. The Court noted that although Congress’s decision to grant a particular plaintiff the right to challenge an act’s constitutionality eliminates any prudential standing limitations, Congress cannot erase Article III’s core, constitutional standing requirement that a plaintiff have suffered a concrete, particularized, personal injury.²⁵ The Court did suggest that a narrow exception might exist allowing congressional standing when a member of Congress’s vote is totally nullified, but the D.C. Circuit Court of Appeals seems to have foreclosed even that exception in Campbell v. Clinton.

The statute should also direct the courts to not apply the various non-justicability doctrines that courts have relied on to abstain from ruling on war powers challenges in the past. A provision should be added similar to that contained in Senator Biden’s Use of Force bill providing that in any action brought by private plaintiffs or members of Congress seeking compliance with the provisions of this Act, the court shall not decline to make a determination on the merits based on the doctrine of political question or any other non-justicability doctrine. The statute could also state that a presidential violation of the bill would create an impasse with Congress and that Congress’s view was that separation of powers principles required the Court to decide the merits of any challenge brought against an alleged violation. In the two wars against Iraq, soldiers who did have standing challenged presidential violations in court, but their claims were dismissed as presenting nonjusticiable political questions.²⁶ While Congress cannot override any core Article III requirement, it can negate the prudential judicial concerns that the resolution of the issue should be left to the political branches to determine.

Moreover, to ensure greater enforceability of the statute, I would define a privileged resolution in Section 7(a)(2) as one that is introduced after the President has submitted a written request or was required by the statute to submit such a report. Such a change would clarify that a privileged motion can be introduced even when the President is acting in violation of the statute and has not filed a report.

Finally, an important aspect of the statute is Sections 5’s strengthening of the reporting provisions of the War Powers Resolution. Not only must Congress explicitly authorize non-defensive uses of force, but it ought to do so after searching, informed and independent review. I would therefore suggest that a subpart (8) be added to the statute which would require the President to report on why he or she believes that the use of force contemplated is consistent with international law and United States treaties, particularly the U.N. Charter. Hopefully, this requirement will help focus congressional attention on that issue, which in my opinion is critical to Congress’s decision whether to authorize a non-defensive use of American forces.

In conclusion, the statute’s revision of the War Powers Resolution to only permit Executive unilateral use of U.S. armed forces to repel an armed attack on American territories, troops or citizens is a welcome and excellent improvement on the current War Powers Resolution. Hopefully the statute will engender and encourage a debate on whether that position is correct and a bipartisan consensus will develop that it is.

⁰ ^*I wish to thank Law Librarian Linda Tashbook for her assistance in preparing this testimony.

¹Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).

²Campbell v. Clinton, 203 F.3d 19 (D.C. 2000).

³1 The Records of the Federal Convention of 1787, at 316 (M. Farrand ed., 1911).

⁴Letter from Thomas Jefferson to James Madison (Sept. 6, 1789) in 15 The Papers of Thomas Jefferson 392, 397 (Julian P. Boyd ed., 1958).

⁵2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 528 (1937).

⁶Helvidius No. 4, in 6 Writings of James Madison 174 (G. Hunt ed., 1906).

⁷Id.

⁸Remarks before the Texas State Republican Convention, Dallas, Texas, June 20, 1992.

⁹See, e.g., Bas v. Tingy, 4 U.S. 33, 35-36 4 Dall. 37, 40 (1800) (Washington J.) (“every contention by force, between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”).

¹⁰For example, Sir Matthew Hale, a well-known legal scholar in the seventeenth century familiar to the constitutional framers, wrote: Special kinds of wars are that which we usually call marque and reprisal.” M. Hale, Historia Placitorum Coronae: The History of the Please of the Crown 162 (S. Emlyn ed., 1736) (1st ed. London 1680). James Kent, in his authoritative Commentaries on American Law referred to special letters of marque and reprisal as “imperfect war[s],” (James Kent, Commentaries on American Law 62 (O. W. Holmes, Jr. ed., Fred B. Rothman & Co. 1989) (1826).) which are “compatible with a state of peace.” Id. at 61. Blackstone noted that the “prerogative of granting [letters of marque and reprisal] . . . is nearly related to . . . making war; this being indeed only an incomplete state of hostilities.” 1 William Blackstone, Commentaries on the Laws of England 258 (Garland Publishing, photo. reprint 1978) (1765). Joseph Story, citing Blackstone, noted that the power to issue letters of marque and reprisal was “plainly derived from that of making war,” being “an incomplete state of hostilities.” 3 Joseph Story, Commentaries on the Constitution of the United States 64 (Boston, Hilliard, Gray 1833).

¹¹Letter from James McHenry to John Adams (May 18, 1798), reprinted in Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 155 (1976). Hamilton had advised McHenry that the president’s constitutional power went no further than the authority “to repel force by force . . . . Any thing beyond this must fall under the idea of reprisals and requires the sanction of that Department which is to declare or make war.” Letter from Alexander Hamilton to James McHenry (May 17, 1798), reprinted in 21 The Papers of Alexander Hamilton 461-62 (Harold C. Syrett ed., 1974).

¹²Office of the Legal Adviser, Dept. of State, The Legality of United States Participation in the Defense of Viet Nam, 75 Yale L.J. 1085 (1965).

¹³Statement by the President, 38 Weekly Comp. Pres. Doc. 1779 (Oct. 21, 2002) cited in David Gray Adler, George Bush and the Abuse of History: The Constitution and Presidential Powers in Foreign Affairs, 12 UCLA J. Int’l & For. Affairs 75, 121 (2007).

¹⁴752 F. Supp. 1141, 1146 (D.D.C. 1990).

¹⁵Section 2 of the Resolution defined a national emergency, which permits the Commander in Chief to introduce armed forces into hostilities, as arising only “by attack upon the United States, it territories or possessions, or its armed forces.” 50 U.S.C. § 1544(c). However, Section 2, entitled “Purpose and Policy” is merely hortatory.

¹⁶See, for example, Letter from Assistant Attorney General Walter Dellinger to Sen. Robert Dole et al., (Sept. 27, 1994) in 140 Cong. Rec. 140, at S14314 (1994) arguing that the War Powers Resolution “recognizes and presupposes” presidential power to initiate some hostilities for less than 60 days. While Dellinger’s assertion is incorrect, his opinion reflects the practice of viewing the Resolution as allowing the initiation of hostilities for less than 60 days.

¹⁷Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

¹⁸50 U.S.C. § 1622(b)(c) (1982) (emphasis added).

¹⁹Beacon Products v. Reagan, 814 F.2d 1, 4-5 (1st Cir. 1987).

²⁰Use of Force Act, Sept. 16, 1988. See Joseph Biden, Jr. & John B. Ritch III, The War Powers at a Constitutional Impassse: A Joint Decision Solution, 77 Geo. L.J. 367, 397-98 (1988).

²¹Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 690 (1952).

²²Letter from Abraham Lincoln to William H. Herndon (Feb. 15, 1848 reprinted in 1 Collected Works of Abraham Lincoln, 451 R. Basler, ed., 1953) (emphasis in original).

²³I would also include a substantive limitation in the bill similar to that contained in Senator Biden’s 1988 Use of Force Act which stated that the United States will not use force in violation of the U.N. Charter.

²⁴521 U.S. 811 (1997).

²⁵Id. at 820.

²⁶Id.