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The United States Constitution provides that:
The Congress shall have the power:
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" Art. I, § 8, cl. 11,
"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;" Art. I, § 8, cl. 12,
"To provide and maintain a Navy;" Art. I, § 8, cl. 13,
"To make Rules for the Government and Regulation of the land and naval Forces;" Art. I, § 8, cl. 14,
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" Art. I, § 8, cl. 15,
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;" Art. I, § 8, cl. 16.
"The executive Power shall be vested in a President of the United States of America." Art. II, § 1, cl. 1.
The President "shall take Care that the Laws be faithfully executed . . . ." Art. II, § 3.
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States." Art. II, § 2, cl. 1.
When does the President have the power to take military action unilaterally?
Youngstown Categories - Jackson Concurrence (pg. 828)
FRAMEWORK FOR ANALYSIS
(1) If there is a statute, can it be fairly read to give authority to the President or to prohibit action by the President?
(2) Which Youngstown category?
"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. In these circumstances, and in these only, may he be said (for what it is worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presumption and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer (Jackson, J., concurring) (pg. 828)
In Hamdi v. Rumsfeld (pg. 841), the Court held that the Executive did indeed have the authority to detain citizens who qualify as "enemy combatants" because the "Congress has in fact authorized Hamdi's detention, through the AUMF." The Court concluded that "the AUMF is explicit congressional authorization for the detention" of enemy combatants. (pg. 843)
Thus, the situation in Hamdi falls under the purview of Youngstown Category One, whereby the President was acting pursuant to "express or implied authorization of Congress."
"When the President acts in absence of either a congressional grant of authority or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures of independent presidential responsibility. In this area, any actual test of power is likely to depend in the imperatives of events and contemporary imponderables rather than on abstract theories of law." Youngstown Sheet & Tube Co. v. Sawyer (Jackson, J., concurring) (pg. 828)
(1) Traditional/Originalist Approach - John Hart Ely
All wars, big or small, must be authorized by Congress.
"The power to declare war was constitutionally vested in Congress. The debates, and early practice, establish that this meant that all wars, big or small, 'declared' in so many words or not - most weren't, even then - had to be legislatively authorized." John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 3 (1993)
The President could act unilaterally to repel a sudden attack BUT he has to come to Congress and seek authorization for his actions either simultaneously or after the fact; thereafter, the President must abide by the judgment of Congress. See John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 6 (1993)
It simply seems inconsistent for this approach to stick so closely to the text of the Constitution for the general proposition that all wars, big or small, must be authorized by Congress WHILE at the same time recognizing an exception for repelling sudden attacks. Indeed, there is no text in the Constitution that supports the idea that the founders intended there to be such an emergency authority vested in the President. Moreover, there is text that strongly weighs against the idea that the founders intended such an emergency authority to exist. Article 1, § 10, cl. 3 provides that "[n]o state shall, without the consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This is an emergency authority to repel sudden attacks vested in the States, not in the President. One of the canons of statutory construction is "expressio unius est exclusio alterius," which roughly translates to mean "the expression of one thing is the exclusion of another." Under this canon of statutory construction, since the Constitution explicitly provides for emergency authority in the States for repelling sudden attacks, while remaining completely silent with respect to whether such an authority exists in the President, it is to be understood that the founders did not intend such a power to exist.
(2) The Other Extreme - Jay S. Bybee OLC Memo re Iraq
There is no limit on the President's authority to act unilaterally in the absence of a limiting statute (except of course appropriations).
Even a full-fledged war can be launched by the President once Congress has provided the means (i.e., appropriated the monies)
"[T]he Constitution grants the President unilateral power to take military action to protect the national security interests of the United States." Authority of the President Under Domestic and International Law to Use Military Force Against Iraq, Op. O.L.C. (2002) (pg. 1)
Here, the OLC concluded that "the President possesses constitutional authority for ordering the use of force against Iraq to protect our national interests."
This is just too extreme. There has to be some limit to the President's authority.
(3) Middle Ground - Caroline D. Krass OLC Memo re Libya
Whether the President has authority to take unilateral military action turns on two considerations:
(1) "whether United States operations . . . would serve sufficiently important national interests to permit the President’s action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations"; and
Important National Interests:
In 2004, the OLC found adequate legal authority for the deployment of U.S. forces to Haiti based on national interests "in protecting the lives and property of Americans in the country, preserving 'regional stability,' and maintaining the credibility of United Nations Security Council mandates."
In 1995, the OLC concluded that the President’s authority to deploy approximately 20,000 ground troops to Bosnia, for purposes of enforcing a peace agreement ending the civil war there, rested on national interests in "completing a 'pattern of inter-allied cooperation and assistance' established by prior U.S. participation in NATO air and naval support for peacekeeping efforts, 'preserving peace in the region and forestalling the threat of a wider conflict,' and maintaining the credibility of the UNSC."
In 1992, the OLC rested the President’s authority to deploy troops in Somalia in terms of national interests "in providing security for American civilians and military personnel involved in UNSC- supported humanitarian relief efforts and (once again) enforcing UNSC mandates."
With respect to the actions taken in Libya, the OLC concluded that "the combination of at least two national interests that the President reasonably determined were at stake here . . . provided a sufficient basis for the President’s exercise of his constitutional authority to order the use of military force."
(1) "[T]he United States has a strong national security and foreign policy interest in security and stability in the Middle East that was threatened by Qadhafi’s actions in Libya."
(2) "[T]he longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security."
(2) "whether the military operations that the President anticipated ordering would be sufficiently extensive in 'nature, scope, and duration' to constitute a 'war' requiring prior specific congressional approval under the Declaration of War Clause."
Here, the OLD concluded that "considering all the relevant circumstances, we believe applicable historical precedents demonstrate that the limited military operations the President anticipated directing were not a 'war' for constitutional purposes."
(1) "As in the case of the no-fly zone patrols and periodic airstrikes in Bosnia before the deployment of ground troops in 1995 and the NATO bombing campaign in connection with the Kosovo conflict in 1999 . . . President Obama determined that the use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that '[t]he United States is not going to deploy ground troops in Libya.'"
(2) "[A]s in prior operations conducted without a declaration of war or other specific authorizing legislation, the anticipated operations here served a 'limited mission' and did not 'aim at the conquest or occupation of territory.'"
"President Obama directed United States forces to 'conduct a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster'; American airstrikes accordingly were to be 'limited in their nature, duration, and scope.'"
"As the President explained, 'we are not going to use force to go beyond [this] well-defined goal.'"
(3) "[A]lthough it might not be true here that 'the risk of sustained military conflict was negligible,' the anticipated operations also did not involve a 'preparatory bombardment' in anticipation of a ground invasion—a form of military operation we distinguished from the deployment (without preparatory bombing) of 20,000 U.S. troops to Haiti in concluding that the latter operation did not require advance congressional approval."
The OLC concluded that "[c]onsidering the historical practice of even intensive military action—such as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in 1999—without specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations in Libya, we do not think the 'anticipated nature, scope, and duration' of the use of force by the United States in Libya rose to the level of a 'war' in the constitutional sense . . . ."
Although this is not fully in accord with historical practice...
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