The Law: Constitutional Understandings of the War Power

The past few years have given constitutional students and scholars the chance to stake out positions on a number of high-profile and controversial topics. From the impeachment of the president and what constitutes high crimes and misdemeanors to electoral tallies and who gets to say what constitutes a valid vote, otherwise arcane and back-shelf legal issues are suddenly on the front pages of newspapers and in the everyday conversation of citizens. One facet of constitutional law, the constitutional allocation of the war power, continues to evoke interest, comment, and argument. The 1990s were bracketed by military operations overseas that sought popular approval and involved all three branches of government. Operation Desert Storm in 1991 and the air campaign over Kosovo in 1999 saw the president take unilateral action; Congress debate, deliberate, and bring suit; and the courts address the legal issues claimed by the coordinate branches. In the middle of the decade, the newly seated 104th Congress attempted to rewrite the War Powers Resolution (WPR) as part of the Contract with America promises made by Republican House candidates in the fall campaigns. Although the bills did not become law, the debates of 1995 were another effort by Congress to grapple with the legal and political questions that have kept the war powers debate a lively one since the passage of the WPR in 1973. This journal has been an important venue for those who have taken positions in the war powers debate. The December 2000 issue of Presidential Studies Quarterly was of particular note, as it presented a point-counterpoint set of articles by Professors David Mervin and David Gray Adler. The Mervin-Adler debate clearly set out a pragmatic versus an original-intent perspective over the power to commit military forces abroad. The writers were clear and unsparing in making their points, and each neatly connected his core arguments to policy prescriptions. Yet this debate, like so many before it, reinforced assumptions about the constitutional allocation of the war power that create as many problems as they solve. These assumptions, and the constitutional understandings that inform them, are the focus of this inquiry. This article surveys the interpretive positions of those who have decried presidential actions and the conduct of foreign policy over the past decade and those who see the war powers debate as either moot or a dead letter. It examines the legal methods most often cited within this debate--text, intent, and judicial doctrine--and notes the assumptions beneath each. Within this discussion, I will stake out a position that legal arguments are important. They are neither obsolete nor irrelevant. If anything, the congressional debates during the 1999 military action in Kosovo demonstrated the overriding need to adhere to constitutional principle, not the opposite. Finally, I propose the use of structural argument as an alternative approach to the war powers problem. This approach suggests policy implementation that neither cements political players into places set in 1800 nor walks away from the substantive and procedural requirements of the law. It integrates text, intent, and doctrine rather than supplants them. Taking Sides A number of constitutional commentators have excoriated Bill Clinton for his performance as commander in chief. In an earlier piece by Adler (2000a, 156, 164), Clinton was accused of exercising "arbitrary executive power" and engaging in "naked usurpation" that has "eroded," "disfigured," and ultimately "eviscerated" the war powers clause of the Constitution. Louis Fisher (2000, 574) concluded that Clinton's hubris in the conduct of foreign affairs brought about a "collapse of constitutional principles" and a "decline in representative democracy." These vigorous criticisms of presidential conduct are grounded in certain presuppositions about the Constitution and its proper interpretation. …