Davis Adler: Constitutional progress means one step forward, two steps back

September 5, 2013 

President Obama’s decision to seek congressional “authorization” for a military strike against Syria was suggestive of measurable constitutional progress on the use of force. It promised to resurrect the aims of the framers of the Constitution, the text and architecture of the Constitution, and Supreme Court decisions rendered at the dawn of the republic.

The constitutional architecture of the War Clause, as previously discussed in this space, grants to Congress the sole and exclusive authority to initiate military hostilities on behalf of the American people.

President’s Obama’s bow to Congress, reminiscent of his pronouncements in December of 2007 when, as a candidate for the presidency, he rightly claimed that the president has no authority to order military strikes without prior congressional authorization, seemed to reflect a recovery from his erroneous assertion in 2011 of a unilateral executive power to wage hostilities against Libya.

No sooner had he seemingly regained his constitutional footing, however, than he slipped — again. Through his aides and advisers, and in a press conference in Sweden, President Obama contended once more that the president, as commander in chief, has the constitutional authority to initiate military strikes, a position that renders congressional “authorization,” or lack of it, constitutionally meaningless.

If, indeed, President Obama has the constitutional power to order the use of force, he doesn’t require authorization from Congress. In fact, however, the Commander in Chief Clause does not confer upon the president the authority to initiate military hostilities.

Constitutional facts are stubborn things. The framers of the Constitution did not invent the title, “commander in chief.” Rather, they borrowed it from the English and employed its historical meaning: the commander in chief in any theater of battle is subordinate to a political superior. George Washington, appointed by the Continental Congress in the Revolutionary War as General and Commander in Chief, was required to obey instructions and directions imposed by Congress.

The understanding that the commander in chief was subordinate to Congress was embraced in the Constitutional Convention. When delegates to the convention assigned to Congress through the War Clause the exclusive authority to initiate military hostilities — short of and including full-fledged war — they did not grant to the president a concurrent power to order military strikes.

By the end of the convention, no delegate defended the proposition that the president might make determinations on matters of war and peace.

That understanding was embraced in the state ratifying conventions and in the Federalist Papers and other contemporaneous commentaries on the Constitution.

It was, moreover, embraced by our early presidents. Indeed, no president asserted a unilateral executive power to take the nation to war until 1950, when President Truman unilaterally injected the United States into the Korean conflict. It was of no legal consequence, by the way, that he tried to camouflage his usurpation of the war power by characterizing it as a “police power action.”

The original understanding of the War Clause and the Commander in Chief Clause was upheld by the Supreme Court in the early 19th century, and it has never been overruled. In an 1804 case Little v. Barreme, the court, in an opinion rendered by Chief Justice John Marshall, held that the president is bound by congressional determinations, including statutory limits on the use of force.

If, in its debates, Congress decides to withhold from President Obama the authorization to initiate military strikes against Syria, his status as commander in chief doesn’t not confer any constitutional power to override the will of Congress. Rather, as the court held in Little v. Barreme and in subsequent decisions, the president is constitutionally bound by congressional determinations on matters of war and peace.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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