David Adler: Mutual defense treaties can’t change constitutional process

December 5, 2013 

The Obama Administration’s declaration that the U.S.-Japanese mutual defense treaty covers the Senkaku Islands, control of which is at the heart of the deepening crisis between China and Japan in the East China Sea, threatens to drag America into a military conflict in the event that hostilities break out.

It also resurrects a constitutional debate on the question of unilateral executive power to enforce terms of a mutual security pact. In the event of a military conflict between the Pacific nations, may President Obama authorize the use of military force to defend Japan?

Since 1950, presidents of both parties — Democrat and Republican, liberal and conservative alike — have asserted unilateral authority to deploy U.S. troops pursuant to the terms of a security treaty. Harry Truman invoked a U.N. Security Council resolution in 1950 as “authority” to send troops to Korea. George H.W. Bush advanced a Security Council resolution as “authorization” to deploy troops to Kuwait in 1991 in the first Gulf War.

Such resolutions may satisfy international law requirements for the use of force, but they fail to meet America’s constitutional law standards for initiating military hostilities or going to war. That’s important. The various security pacts to which the U.S. is a party, including mutual defense treaties, contain language declaring that the decision to deploy troops is left to each signatory state, based on its “constitutional process” for going to war.

In the U.S., the constitutional process for going to war, including the initiation of lesser military hostilities, is governed by the “War Powers Clause,” found in Article 1, Section 8, which provides that Congress “shall have power to declare War.” The framers of the Constitution, to a man, agreed that Congress, not the president, should possess the sole and exclusive authority to commit troops to war. Congress might make that decision through either a formal declaration of war or a resolution, but the key constitutional requirement is that such measures must be passed by both houses of Congress.

American participation in mutual security pacts does not change our constitutional process for going to war. Treaties, it will be recalled, are made jointly by the president and the Senate. The House of Representatives is not part of the treaty power. If the U.S. were committed to war by a mutual defense treaty, it would be undertaken by the president and the Senate, to the exclusion of the House of Representatives. That would violate the requirements of the War Powers Clause of the Constitution.

Moreover, if signatories to NATO, for example, possessed authority to commit the U.S. to war, it would mean that representatives in France and Italy, rather than our representatives in Congress, would determine when Americans should risk their blood and treasure. U.S. decisions to go to war cannot hinge on the attitudes of the French.

The question of whether a mutual security agreement can obligate the U.S. to defend a treaty partner engaged in war was settled in 1793 when President George Washington concluded that the treaty of alliance of 1778 with France did not bind the U.S. to defend the French in their war with England. He declared the United States neutral.

If the escalating tension between Japan and China leads to a military conflict that might trigger the mutual defense treaty with Japan, President Obama, pursuant to our constitutional process, will be obligated to seek congressional authorization before deploying troops. The Constitution accords the president no unilateral authority to initiate war, and a mutual defense treaty cannot alter the constitutional process for going to war.

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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