Lyle Denniston looks at Justice Robert H. Jackson’s 1952 opinion about presidential powers, as an indicator of President Obama’s mindset about Syrian intervention.
“After careful deliberation, I determined that it is in the national security interests of the United States to respond to the Assad regime's use of chemical weapons through a targeted military strike….That's my judgment as commander in chief. But I'm also the president of the world's oldest constitutional democracy. So even though I possessed the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress.”
– President Barack Obama, Tuesday night in his speech to the nation on the military situation in Syria.
“Kathryn Ruemmler, the White House counsel, said the President believed a strike would be lawful, both in international law and domestic law, even if neither the [United Nations] Security Council nor Congress approved it. But the novel circumstances, she said, led Mr. Obama to seek Congressional concurrence to bolster its legitimacy.”
– As reported in The New York Times by staff reporter Charlie Savage, on September 8.
WE CHECKED THE CONSTITUTION, AND…
Many Americans tend to assume that, for every major constitutional question, there is a definite constitutional answer. But, if the question is how much power a president, acting entirely on the powers of the presidential office alone, has to send the military into action, the simple answer is that there is no simple answer.
In this field of constitutional law, Oliver Wendell Holmes’ most-famous quote again becomes very useful: “The life of the law has not been logic; it has been experience.” During 226 years with the Constitution, Presidents have been working out equations on the extent of their war powers, and experience (more than constitutional text or logic) has determined the extent of that authority.
President Obama continued that exploration Tuesday night, making a bold claim that he could act on his own, but also suggesting that it was not appropriate to do so in the Syrian situation, at least as matters stand at this moment.
Both of those thoughts are contained in the quotation above. He asserted, just as his White House counsel had done in comments to The New York Times, that the Constitution gave him the authority to use military action unilaterally to inhibit the Syrian regime’s capacity to deploy chemical weapons. But he also conceded that there was not as yet “a direct or imminent threat to our security” so he was going to share the choice of options with Congress.
Each side of that equation can be traced directly to the Constitution. A President has the authority to send U.S. military forces into action immediately, in the case of an actual invasion of U.S. territory. That comes out of the role as commander in chief of the armed forces – a role explicitly endowed on the office by Article II. Interestingly, though, the power to repel an invasion is supposed to be shared with Congress, because Article I gives the legislative branch the authority to call the armed forces into national service for just that purpose. Once on duty, then, the forces are under the president’s Article II authority.
In modern times, an actual invasion of U.S. soil would probably be met immediately with retaliatory action launched by the President without waiting for Congress to be consulted. (It is not equally clear that there would be an immediate military response, under presidential order, if the invasion were of U.S. facilities overseas, such as an embassy. The Benghazi incident in Libya has left that question with an uncertain answer.)
But President Obama and his White House legal advisers have conceded that the reports of chemical warfare by the Syrian regime do not, as yet, amount to a “direct or imminent threat” to the United States. Without that, the President seems to have concluded, he is better advised to ask Congress to go along with a military strike, before it happens.
While President Obama clearly does have competent legal advisers, he also is a former professor of constitutional law, and has surely thought a good deal about presidential powers, including wartime powers. He would be familiar, one may assume, with the classic warning against presidents going it alone without Congress during wartime – that is, the warning given in 1952 by a Supreme Court justice when the court struck down President Harry Truman’s seizure of the nation’s steel mills to keep them operating despite labor unrest during the Korean war.
Justice Robert H. Jackson, writing a separate concurring opinion in the 1952 case of Youngstown Sheet & Tube v. Sawyer, began by suggesting that the distribution of war powers under the Constitution was anything but clear and settled. “A judge,” he wrote, “may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
The constitutional materials, of course, have not been much clarified in the six decades since Justice Jackson wrote.
Despite the enigmatic nature of the constitutional materials, though, Jackson was able to suggest “a somewhat over-simplified grouping of practical situations” to gauge presidential powers. He concluded that “when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate….[But] when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”
For constitutional reasons, then, and maybe also for political reasons, President Obama was taking the less adventuresome approach in asking Congress to share the burden of responding to the Syrian situation. If his plea for support ultimately were to fail, he would then be faced with whether to take the constitutional dare of acting on his own authority even though it would then be at its “lowest ebb.”
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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