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Constitutional Dilemma: The Power to Declare War Is Deeply Rooted in American History

By Richard Brust

February 1, 2012, 11:35 am CST

Commanding the American warship the USS Constitution in the waning days of the 18th century, Capt. Silas Talbot steered the massive 44-gun frigate into the path of a little vessel called the Amelia.

Talbot knew what he was after. An experienced naval officer since the American Revolution whose prowess prompted President George Washington to appoint him to supervise the Constitution’s construction, Talbot sought to put a potentially dangerous ship out of commission.

But he also wanted what Congress seemed to have promised: a fee from the salvage of the Amelia. Congress had passed statutes that appeared to have allowed for the seizing of ships like the Amelia.

The statutes came during the Quasi-War, a naval confrontation in the 1790s between the newly formed United States and France, its former ally in the American Revolution. France and England were openly warring with each other, and Americans were arguing over whether to stay neutral.

The Amelia was sailing from Calcutta, an English possession, with a cargo of produce and dry goods. The ship was owned by a mercantile company in the city-state of Hamburg, which was neutral in the English-French war.

A French corvette seized the Amelia in September 1799, adding a crew and arms, and sailed it to the West Indies as a naval prize. A week later the Constitution caught up with the Amelia and, in turn, captured it instead.

The Hamburg company’s representative, Hans Frederic Seeman, wanted the ship back; Talbot claimed it as a legitimate prize of the conflict with France and sued in federal court.

The case, Talbot v. Seeman, which came to the U.S. Supreme Court in 1801, was remarkable in several ways. First, it revealed the growing split between America’s emerging political parties. The case was argued in the appellate court by two archenemies: Federalist Alexander Hamilton, whose party sought war with France, for Talbot; and for Seeman, Aaron Burr, a Republican whose party wanted to avoid foreign alliances and defend neutral shipping.

Second, it was among the first cases in which new Chief Justice John Marshall employed a novel method of decision-making. He changed the age-old routine of a series of justices’ opinions into a single opinion of the court.

And most important, the Talbot case laid part of the groundwork for what has become one of the most profound debates of American war policy: whether the Constitution requires war to be declared by Congress or whether the president has the sole authority to engage in war, followed only by Congress’ latent approval via its power of the purse.

Here the confrontation moves from the floating Constitution to the written one. It also sets the stage for a discussion between two prominent constitutional scholars in Patriots Debate: Contemporary Issues in National Security Law, a new book sponsored by the American Bar Association’s Standing Committee on Law and National Security scheduled for publication in the spring. The book is the ABA committee’s second, and it offers broad concepts on issues of U.S. international law. The first, published in 2005, focused more exclusively on sections of the USA Patriot Act.

SQUARING OFF

In this debate, Louis Fisher, a scholar at the Constitution Project, a nonprofit policy institute in Washington, D.C., argues that Congress must set the stage by declaring war. Opposing him is John C. Yoo, a law professor at the University of California at Berkeley’s Boalt Hall, who favors executive leadership. Yoo also was deputy assistant attorney general in the Justice Department’s Office of Legal Counsel under President George W. Bush.

According to Fisher, the founders intended to steer the new nation away from the British tradition that imputed war powers to the monarch. Here, he wrote in a 2006 law review article, the Constitution was “intended to prohibit presidential wars.” The italics are Fisher’s.

Fisher concedes that the framers gave the president the power to engage in a “defensive” war to counter surprise attacks. That’s why they endowed the president with the title of commander in chief—to unify aggressive action and to keep a civilian as head of the military.

But when repelling sudden aggression escalated to all-out war, it was Congress that had the sole power to “raise and support armies,” “provide and maintain a navy,” grant letters of marque and reprisal, and “make rules concerning captures on land and water.” The founders granted Congress the power to “declare” and pay for a full offensive war.

Fisher has written on the history of presidential power for years. He worked from 1970 to 2010 for the Library of Congress as a specialist on the separation of powers and constitutional law, and he was research director of the House Iran-Contra Committee in 1987.

Fisher also has been active with CEELI, the ABA’s Central European and Eurasian Law Initiative, traveling to European nations freed from Soviet influence to assist in drafting their new constitutions.

In his law review article, “Lost Constitutional Moorings: Recovering the War Power,” Fisher quotes Marshall in Talbot: “ ‘The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.’ That body alone,” Fisher stresses in italics.

To Yoo, however, the reference in Talbot to congressional war-making power was little more than dicta. In a key 1996 law review article, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” Yoo takes Talbot and other Quasi-War cases apart, minimizing their holdings to determine merely the amount of seized cargo that may be paid to a commander or returned to the ship’s owner. Marshall intended only that statutes regarding return of capture didn’t apply until Congress officially declares war, Yoo says.

Yoo’s argument focuses on the question of what a “declaration” of war means. To Yoo, a declaration merely empowers Congress to do what Congress already had the power to do: fund the war or withdraw payment, or impeach the president. A declaration “served diplomatic notice about a change in legal relations between nations,” writes Yoo in his Patriots Debate essay. “It had little to do with launching hostilities.”

In his law review article, Yoo contends that “interpreting ‘declare’ war to mean ‘authorize’ or ‘commence’ is a 20th century construct inconsistent with the 18th century understanding of the phrase.” Declaring war, Yoo continues, is comparable to filing a complaint among nations that the home country was to begin combat with another.

Yoo counters Fisher’s argument—that the framers rejected the British executive war-making power—by claiming that the founders “created a framework designed to encourage presidential initiative in war.”

The idea reflects Yoo’s belief in the unitary executive, which endows the president with strong powers that preclude other branches from intruding. Under the original understanding, Yoo notes, declaring war bound the people to the executive’s—then, the king’s—decision to wage war.

The result, Yoo writes in his essay, is “presidential initiative, followed by congressional acquiescence.” So there’s little surprise that Congress declared war only five times in U.S. history. A reluctance to declare war doesn’t imply congressional disapproval. Silence, Yoo contends, may signify consent. A declaration, he argues in his law review article, “did not create or authorize; it recognized.”

Any conflict between the two branches should be resolved by politics—whether the people agree with the war or not—and not through legal battles over the separation of powers, he adds.

Yoo’s ideas came to the forefront during the Bush administration. A Yale law graduate, Yoo clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Clarence Thomas.

After the Sept. 11 attacks on the World Trade Center and the Pentagon, Yoo co-authored memorandums that framed the Bush administration’s strong approach to the war on terror. Yoo claimed President Bush could bypass the Geneva Conventions, clearing the way for aggressive interrogation techniques. Yoo rejoined the Berkeley faculty in 2003.

WARY FOUNDERS

In contrast with Yoo’s adherence to a strong executive, Fisher argues that those war-making powers are too heavily weighted toward the president. The founders had good reason to invest Congress with the power to declare war and with the responsibilities of calling and funding an army and navy, Fisher says. The attempt was to keep war-making powers closer to the people.

In addition to the Talbot case, Fisher cites two others in which the courts sought to define constitutional war power. United States v. Smith was a case contemporary with Talbot in which a federal circuit court said that “it is the exclusive province of Congress to change a state of peace into a state of war.”

Decided in 1806, Smith involved another thorny issue of a young nation trying to protect its neutrality among warring European powers. The case focused on a Venezuelan revolutionary named Francisco de Miranda, who traveled through Europe to gain support for liberating his native country from Spain.

His appeal eventually fell upon the ears of prominent Americans—including Thomas Jefferson, then president, and James Madison, secretary of state. They met Miranda over dinner, although the meeting’s outcome was unknown.

Miranda then called upon an old colleague, Col. William Stephens Smith—a former diplomat and Revolutionary War hero, and, at the time, customs surveyor for the port of New York. Smith also was John Adams’ son-in-law.

In February 1806, Miranda sailed for Venezuela on a ship procured by Smith and supplied with weapons and an American crew, including Smith’s son. The Spanish captured the vessel, but Miranda escaped. Col. Smith and the ship’s owner were subsequently tried for violating the federal Neutrality Act of 1794, which barred any military expedition against a nation with which the U.S. was at peace.

Smith claimed that he was acting under orders from Jefferson and Madison, and that it was up to the president to decide whether a state of war existed with Spain. Smith subpoenaed Madison to testify, but the court denied the claim, saying it was up to Congress to declare war.

Fisher also cites the Prize Cases, an influential Civil War ruling that decided whether the Southern states composed a separate nation or an internal insurrection. As with Talbot and Smith, the Prize Cases also involved shipping and neutrality—here, whether a naval blockade employed by President Abraham Lincoln allowed the federal government to seize ships trading with Southern ports, even if the ships were from neutral countries.

DELICATE DISTINCTION

Justice Robert Grier sliced a delicate line between presidential and congressional war power. He acceded to the government’s argument that the conflict was an insurrection, allowing Lincoln to employ defensive measures without having to recognize the Confederacy as an independent nation.

Grier, Fisher says, emphasized the distinction: The president “has no power to initiate or declare a war against either a foreign nation or a domestic state.”

The understanding that the president could indulge in short defensive responses, while Congress had the power to engage in prolonged campaigns, stood until 1950, Fisher says.

That was when the equation changed. Fisher blames the Korean conflict, which he calls the “first unconstitutional presidential war.” Of all the incidents involving presidential approval of defensive actions, he says, “not one approached the magnitude and gravity of the Korean War.”

President Harry S. Truman, acting under the United Nations Charter, found the means to “entirely skirt” the House of Representatives, “the legislative body closest to the people.” Truman instead appealed to the authority provided by an international treaty, which needed only Senate approval.

In the end, Truman “creat[ed] an alternate means of going to war.” While Yoo finds it unsurprising that Congress has declared war only five times, Fisher, on the other hand, finds this development unconstitutional. It is an invitation, Fisher writes in his law review article, for “presidential adventurism”—exactly what he contends the founders tried to preclude.

In Yoo’s view, the legacy of Congress opposing the president’s powers has “not been a happy one.” He cites the post-World War I defeat of the Versailles Treaty and the Neutrality Acts that tried to keep the U.S. out of the growing European conflict that evolved into World War II.

As for Vietnam, Yoo contends that with Congress continuing to fund the war, it must have supported the conflict. For Fisher, the loss of congressional participation made the Vietnam War “a great calamity.”

Which brings us to Libya. To Yoo, a conservative who authored many of the Bush administration’s justifications for its conduct of the Iraq and Afghan wars, President Barack Obama has been acting “about right”—that is, within the executive authority he proclaims the founders intended.

Fisher, on the other hand, is despairing. Just as Truman bypassed Congress for an international treaty to justify the Korean conflict, so did Obama slink around the Constitution by using a U.N. Security Council resolution to exert military force in Libya.

Libya neither attacked nor threatened the U.S., says Fisher. Yet Obama responded with offensive force, not defensive counterattacks. That, Fisher says, is an impeachable act.

However unlikely, should Congress get up the gumption to impeach Obama, Fisher says, it would represent a “healthy and welcome” signal for the future of constitutional government.