PF Mar 2018 - Presidential power under the AUMF - Con Position

Resolved: On balance, the current Authorization for Use of Military Force gives too much power to the president.

Con Position

The Con position is as simple as claiming the AUMF does not give the president too much power. This means the Con does not have to deny nor debate that the president indeed has too much power. Con merely asserts that the powers exercised by the president are not uniquely attributable to the AUMF. Despite the claims of some, the president is still constrained by federal regulations generally and the U.S. Constitution specifically. Moreover, the president would be powerless to engage in any significant action without the funding to back it up and it is the congress which decides who gets how much when it comes to the distribution of the U.S. federal budget. Every Lincoln Douglas debater and hopefully every Public Forum debater as well understands that a legitimate government has a fiduciary responsibility to provide for the common defense. This includes protecting the citizens and protecting the institutions of the government itself from all threats foreign and domestic. Even in the earliest days of the republic as the founding fathers were debating the very issues we debate today regarding the balance of power and the duties of the three branches, it was well understood that national security was a paramount value. It should be clear, for example, the president does and must retain a great deal of discretion as to how to respond to an imminent threat against the homeland. Often congress moves so slowly one can time it with a calendar and if the president needs to await congressional authorization or a declaration of war to respond, the nation could be overrun.

Another interesting view is the perceived expansion of executive power is due, not so much to a particular authorization or act but rather a general reluctance by congress to exercise its own power. As congress has more and more shrunk back from exerting its counter-balancing power, the executive, perhaps out of necessity has expanded to fill the void.

One thing is certain. The realities of today's world are not the same as those faced by our founding fathers who mostly focused on opportunistic European monarchies. Today's world faces a much different kind of threat which requires a much different kind of response than that foreseen in the 1790s. In fact, it may be claimed that some ideas upheld by the U.S. Constitution may no longer be relevant.

The Limits of Congressional Power

Much of the focus of this position will be upon the balance of power and the system of checks and balances through which the executive and legislative each limit the over-reach of the other. But one of the key attributes of the system of balance of power is it is a passive system which requires action to make it work. 

Boyer, et al 2005:

Yet the system of checks and balances is not automatic. Checks are not self-executing. James Madison explained our system as one designed to make “ambition” counteract “ambition” – the ambition of the executive to aggregate power with the ambition of Congress to preserve legislative prerogative and the ambition of the courts to interpret the law. The executive’s ambition rarely flags, spurred by every new real and perceived threat. But Congress’s ambition has sometimes wavered since the Vietnam War.

The fact this system requires some kind of action is one its weaknesses. Standing up to the ambitions of the president requires a congress willing to stand firmly in support of issues that may not be politically expedient. The members of congress are accountable to their constituents and thus would be very reluctant to oppose presidential actions which are politically popular, even if those actions push the limits of the intent of the law.

Steele 2013:

Our national legislature has reached the point where it simply creates broad packages of legislation that are weak on substance and lack direction. This in turn gives the executive branch the ability to actually shape the implementation law, which is not their responsibility. Why has this slow but steady slide into blurring, if not outright disregarding the otherwise very bright lines separating the branches of government been allowed to occur? Is it just about aggregating power to the executive branch or is it something more? The evidence seems to suggest that we are witnessing the “Red State-Blue State” politics of our times redefine how each branch views its role of shaping the law of the land. The real danger, however, is inherent in congressional and presidential actions that stretch the reach of executive power or abandon legislative authority, resulting in an unprecedented encroachment upon the liberties of private citizens and religious institutions. [100]

The lack of action by congress is often more apparent when it come to authorizations which would result in putting troops in harm's way. There is little political will for war and even when it is justified for national security, there is reluctance on the part of congress to take any responsibility for its progress. In Federalist #70, Alexander Hamilton argued that "Decision, activity, secrecy, and dispatch" were the attributes of a properly empowered president. The lack of consensus in congress is a detriment to the system of checks and balances.

Boyer, et al 2005:

Although Congress has authorized the use of force abroad, it has also sometimes failed to insist on a collective judgment about initiating force abroad, either because it tries to evade political accountability for a decision on war or because it defers to the presumed superior competency of the executive to make that decision. When national security decisions are said to rest on secret information not widely shared with Congress, the temptation to defer to the President only increases. Furthermore, the courts’ ambition, too, has flagged, as they have invoked amorphous procedural doctrines to avoid war powers or national security questions properly presented to them. Just as Congress’s wavering ambition to exercise its war powers has often left the decision to use force to the President, so the courts’ doctrines of avoidance have left the interpretation of war powers to the President as well. The resulting erosion of checks and balances for war powers is neither steady nor complete. Since the Vietnam War, Congress performed its constitutionally assigned role in authorizing Operation Desert Storm against Iraq in 1991, and military force against the perpetrators of the 9/11 attacks and their protectors in 2001. Congress also authorized war against Iraq in 2002. Even in these cases, however, presidents asserted that they did not need Congress’s authorization, in effect denying that this check applies. More frequently since the Vietnam War – Grenada in 1983, Panama in 1989, Haiti in 1994, Kosovo and the Federal Republic of Yugoslavia in 1999 – Congress has evaded its constitutional duty to express clearly its decision about the use of force, and the courts stood aside, leaving the field to the President. Furthermore, confounding the intentions of its sponsors, the 1973 War Powers Resolution contributed to this erosion of the system for war powers insofar as it has been understood to give both political branches a “free pass”: the President to use force for sixty days without prior congressional authorization, and Congress to assume that it could discharge its constitutional duty by doing nothing.

The multiplicity of political opinions in the U.S. congress has permitted exerises of power and influence by the president to "breach" the separation between the branches of power; Lincoln suspended habeas corpus during the civil war, Bush pushed through the USA PATRIOT Act which authorized government spying on its own people, Obama ordered the Justice Department to stop defending the Defense of Marriage Act.

Steele 2013:

It’s important to keep in mind that these presidential breaches are not alien to the separate branches of government. It is a bit like a yo-yo in the sense that the President wants to extend the reach of executive power and authority, and the other two branches want to pull it back. However, it is not always the executive branch taking power from the other branches, but rather the other branches relinquishing authority that constitutionally belongs to them. In other words, one branch says: “Not my problem. I do not want to deal with it; you deal with it.”[99]

What is War?

"I know it when I see it", one of the most notoriously famous expressions in law was cited in 1964 by Supreme Court Justice Potter Stewart when asked to describe his threshold test for "obscenity". Perhaps when pressed, most individuals could give varying and descriptive definitions for what is war and perhaps Justice Stewart's response would be suffice for many. However, the definition of war has evolved. The justification and methods of execution of warfare have changed greatly since the first days of the formation of our republic. International bodies such as the United Nations and various international treaties have redefined the rules and yet, war continues to evade our ability to legally define due to its amorphous nature. The language of war such as "police action" or deployment of "military advisers" were semantic sugar describing what could be plainly seen as growing wars in Korea and Vietnam. In the space of years between 1953 and 1963 war was morphing into guerrilla tactics in which combatants could blend into the civilian population and blur the distinctions between who was friendly and who was enemy redefining the rules of engagement. In 2001, the U.S. for the first time, was struck by a new kind of enemy operating under a new set of rules (or lack of rules) that defied definition.

Bradley & Goldsmith 2005:

The “war on terrorism” following the September 11, 2001, attacks lacks many of the usual features that define, justify, and limit the conduct of war. The enemy intermingles with civilians and attacks civilian and military targets alike. The traditional concept of “enemy alien” is inapplicable in this conflict; instead of being affiliated with particular states that are at war with the United States, terrorist enemies are predominantly citizens and residents of friendly states or even the United States. The battlefield lacks a precise geographic location and arguably includes the United States. It is unclear how to conceptualize the defeat of terrorist organizations, and thus unclear how to conceptualize the end of the conflict. Uncertainty about whether and when the conflict will end, in turn, raises questions about the applicability of traditional powers to detain and try the enemy.[2048-2049]

The fact that the war on terror is an undeclared war on a non-state actor does not mean it is not a real war being executed by the executive branch under the authority of the congress. The framework that constitutes legitimate and justifiable war has changed radically. The vague language of the 2001 AUMF was sufficient to describe and justify the actions of every president from Bush to Trump, in dealing with terrorist groups with international reach.

Bradley & Goldsmith 2005:

In this Part, we attempt to clear away two misconceptions relevant to interpreting the authority that Congress has granted in the AUMF. The first is that the powers being granted to the President are limited or truncated in some fashion because Congress has not declared war. As we explain, a declaration of war is not required in order for Congress to provide its full authorization for the President to prosecute a war. An authorization of military force can be sufficient and, in fact, may even be necessary.
The second misconception is that the powers granted to the President in the AUMF are limited or truncated in some fashion because an armed conflict with terrorists is not a “real war.” Presidents have exercised their full Commander-in-Chief powers in a number of military conflicts throughout U.S. history that involved many of the purportedly non-traditional elements present in the current conflict with terrorists. More importantly, the scope of authority conferred on the President by a congressional authorization of force has never turned on the metaphysical question of whether a particular conflict qualifies as a “war.” Rather, it has always turned on how the political branches view the conflict and how they characterize the belligerents in the conflict. The political branches have clearly indicated, in the AUMF and elsewhere, that the conflict with the terrorists responsible for the September 11 attacks is a war requiring a full military response by the President. [2056]

In fact, it can be argued, that modern war renders even the language of the constitution obsolete.

Bradley & Goldsmith 2005:

Another reason why almost no one argues that Congress’s authorization of war must take the form of a declaration of war is that the international law role for declarations of war has largely disappeared.
The United Nations Charter, which now regulates the portion of the international laws of war known as jus ad bellum, refers not to “war,” but rather to “armed attack,” “use of force,” and “threat[s] to the peace.” A similar shift away from “war” as the determinative concept has taken place in the law of armed conflict (jus in bello). The applicability of the law of armed conflict was once triggered by the existence of a state of “war,” which in turn could be triggered by, among other things, a declaration of war. The Geneva Conventions of 1949 changed this regime by making clear that their jus in bello rules applied not only to “cases of declared war” but also more broadly to “any other armed conflict” between states, regardless of whether a “state of war” was recognized by one of the parties. Today, “armed conflict” — not “war” — is the relevant jurisdictional concept for jus in bello. As a result, it now appears that declarations of war serve little purpose under international law.54 This is a principal reason why, despite hundreds of armed conflicts around the world during this period, some of them quite intense and prolonged, it appears that no nation has declared war since the late 1940s. [2062]

Any claims the president is exceeding limits of power allotted to the office would be warranted if he or she were taking actions outside of the bounds of their legal authority. However this is not the case. By authorizing the war on terror congress has authorized the the president to operate under the constraints of international law.

Bradley & Goldsmith 2005:

Since the international laws of war can inform the powers that Congress has implicitly granted to the President in the AUMF, they logically can inform the boundaries of such powers. For example, the international laws of war permit the detention of enemy combatants without trial until the end of hostilities.208 The terms of this international law rule suggest that, in order for the detention to be authorized under the AUMF, the detained individuals must be enemy combatants and hostilities must be ongoing. The plurality in Hamdi appeared to rely on international law in this limiting manner when it stated that “indefinite detention for the purpose of interrogation is not authorized.” [2094]

Moreover, the wording of the AUMF was not directed exclusively to the eradication of Al Qaeda. It was directed toward the structure of organized terror and toward the purpose of eliminating its power to do harm to the U.S.

Bradley & Goldsmith 2005:

There is no contrary textual basis to justify limiting the organizations covered by the AUMF to their lowest level of organizational abstraction based on formal criteria such as the name or structure of a particular group as of September 11. Indeed, the fact that Congress authorized the use of force against “organizations” rather than “al Qaeda” suggests the contrary. So too does the “purpose” clause of the AUMF, in which Congress stated that the AUMF’s purpose was to “prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”284 This clause suggests that the AUMF should not be read narrowly to exclude groups that, in organizational conjunction with the entities responsible for the September 11 attacks, threaten future attacks on the United States. [2111]

Thus, the president is functioning completely within the constraints of his legal authority.

The Summary

Sometimes I find an author that sums up the entire position succinctly.

Turner 2013:

In his first Pacificus essay in 1793, Alexander Hamilton observed that “the power of the Legislature to declare war” was an “exception” to the general “executive power” vested in the President by Article II, Section 1, and thus was to be “construed strictly.”  This was the interpretation of that clause embraced earlier by James Madison, Thomas Jefferson, George Washington, John Jay, John Marshall, and many others.
Although it will surprise many readers today, in a February 1804 memorandum to Treasury Secretary Albert Gallatin, President Jefferson explained the original practice:

"The Constitution has made the Executive the organ for managing our intercourse with foreign nations . . . .  From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President."

That same month, Chief Justice John Marshall (Jefferson’s political enemy) wrote in perhaps the most famous Supreme Court opinion in our history (Marbury v. Madison):

"By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion. . . . [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive."

To illustrate the point, Marshall referred to the statute creating the Department of Foreign Affairs (now State), explaining that the Secretary’s duties were “to conform precisely to the will of the President.”
It was widely understood by the Framers that Congress couldn’t keep secrets, so early appropriations bills expressly provided: “[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify . . . .”  The Framers would have been shocked at the idea of congressional “intelligence committees” demanding sensitive national security secrets, which are a product of the post-Vietnam era.
Indeed, in Federalist No. 64, John Jay explained that sources of valuable foreign intelligence information would be willing to confide in “the secrecy of the president,” but not in that of the Senate or House, and thus the Constitution had properly “left the president able to manage the business of intelligence in such matter as prudence may suggest.”
In the 1990 case of United States v. Verdugo-Uriquidez, the Supreme Court noted that American presidents have sent armed forces abroad into harm’s way “over 200 times in our history” for the protection of citizens and our national security.

The Final Focus

The idea the AUMF has given the president too much power is an empty claim if it can be shown he is functioning completely within the legal constraints granted by congress and international law. After all, legal constraints are the power of congress to check executive action. What we have shown is the apparent expansion of executive power is really a contraction of legislative will to constrain the president in matters of national defense. The nature of modern war against terrorist groups with international reach require a commander in chief with the freedom to act swiftly and decisively in defense of the nation. No, the president does not have too much power. He has the power he needs to carry out his duties to the satisfaction of the people. In the end, it will be the people who are the final check on power.

For all these reasons and more...we urge a Con ballot.

For more and this and other PF topics click the Public Forum page tab above.



Sources:


Boyer, SP, et al (2005), DECIDING TO USE FORCE ABROAD: WAR POWERS in a System of CHECKS AND BALANCES, 2005, The Constitution Project. http://constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad1.pdf


Bradley CA and Goldsmith JL (2005), Congressional Authorization and the War on Terrorism, Harvard Law Review, Vol 118, Nbr 7 May 2005.
https://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/bradley_goldsmith.pdf


Steele, M (2013) The Executive branch: Too Much Power?, Lincoln Memorial University Law Review, Vol. 1, issue 1, Dec. 2013. http://digitalcommons.lmunet.edu/cgi/viewcontent.cgi?article=1022&context=lmulrev


Turner, RF (2013), Why the War Powers Resolution isn’t a key factor in the Syria situation, The Constitution Center. August 30, 2013.
https://constitutioncenter.org/blog/why-the-war-powers-resolution-isnt-a-key-factor-in-the-syria-situation