- [Host] So, I'm here with Jeffrey Rosen
head of the National Constitution Center in Philadelphia
and we're continuing to talk about
Article II of the US Constitution
which talks about the powers of the president.
And now we're gonna focus a little bit
on the first part of section two
which talks about among other things
that the President shall be the Commander-in-Chief
of the Army and Navy of the United States,
essentially the military of the United States.
And this seems like there's a bit of a balance here
because in Article I which describes the
powers of the congress in section eight,
it says the congress shall have power
and it starts listing a bunch of stuffs, a bunch of things
but one of the things that it list is
the power to declare war,
grant letters of marque and reprisal
and make rules concerning captures on land and water.
How do these two things fit together, Jeffrey?
- [Jeffrey] Well, they've led to the most
dramatic constitutional controversies in American history
as Justice Robert Jackson put it in the Steel Seizure case.
These cryptic words of the commander-in-chief clause
have given rise to some of the most
persistent controversies in our constitutional history.
Everyone agrees that congress has the power to declare war
and once war is declared,
the president has total control
over the conduct of the war.
There's civilian control of the military,
there's a single leader once the war starts
but how the president can act to deploy the troops
in the face of emergencies when congress is silent,
and how much congress can constrain its power
has led rise to some huge constitutional controversies.
- [Host] And the Steel Seizure case that you talked about,
this was in 1952,
this was arguably talking about the Korean War.
What was the context there?
Why did this need to be ruled on?
- [Jeffrey] Well, it's an amazing case
and the steel companies are gonna go on strike,
and President Truman decides
this is a threat to national security
because the army needs steel to conduct the Korean War.
He decides on his own without congressional authorization
to seize the steel mills as part of his authority,
his military authority as commander-in-chief
and this goes up to the supreme court
and the supreme court strikes him down.
They say he can't seize the steel mills on his own.
Truman is shocked, he's appointed many of the justices
but the most influential opinion in the steel seizure case
is the concurring opinion by Justice Robert Jackson,
and I want our listeners to go check it out on the web
because it's so important.
And Justice Jackson identified three categories
of executive power that every law student learns
and they're easy to remember.
Basically, when the president acts
with congressional approval,
his authority is at its height.
When he acts in the face of congressional disapproval,
his authority as at its lowest ebb.
And when congress has neither approved or disapproved,
the president acts in a zone of twilight,
as Justice Jackson said.
It sounds like the Twilight Zone
and I always think of that music. (mumbles)
But it means that in the Steel Seizure case,
although the congress had not authorized the seizure
and the president had no civilian authority
to seize the steel mill,
so he had no independent authority
to rely on them in the zone of twilight,
and therefore, the court held he acted unconstitutionally.
- [Host] And Truman's argument might have been
hey, look the constitution makes me the commander-in-chief.
If I read that broadly I should be able
to do whatever I need to execute in times of war.
Steel is a very important input into making
the things that you need to execute your war with.
And so, if they're gonna go on strike,
that's gonna keep me from being able to conduct our war.
- [Jeffrey] That's exactly right.
That's just what he argued
and although some justices bought it
including Chief Justice Fred Vinson
who Truman had appointed,
a majority of the supreme court said
that civilian power over the military
doesn't authorize the president
to use his power in the United States
in ways that might be helpful to the war effort.
He needs explicit congressional approval for that.
It really upset President Truman.
He invited the whole supreme court.
They actually invited him for drinks
at Justice Hugo Black's house
after the decision came down,
and Truman sulked for a while and he said,
"Hugo, I don't think much of your law
"but my golly, this bourbon is good."
So they kind of, (laughs)
they made up after the case.
(laughs)
- [Host] And another I guess relevant,
this isn't a case but a resolution,
is War Powers Resolution 1973, historical context.
We're nearing the end of the Vietnam War.
What was the background there?
- [Jeffrey] Well, congress was very upset
that President Nixon had sent bombers into Cambodia
without congressional approval,
and there'd been other disputes about
the president's power in Vietnam.
Congress decided to try to codify
exactly when the president could act
to repel sudden attacks,
which everyone agrees that he has the right to do.
So, congress said, "President, you've got to notify us
"within 48 hours of the time
"that you send troops on your own
"and you can only keep those troops
"on the ground for 30 days,
"except under extraordinary circumstances,
"otherwise you need congressional approval."
Despite this effort to kind of set out
congressional approval for these extraordinary situations,
some presidents have argued
that the War Powers Resolution itself
is unconstitutional as a violation
of the president's commander-in-chief power.
Others on the other side they said congress
is sitting too much power to the president
but so far the supreme court has not struck down
the War Powers Resolution,
and presidents are supposed to abide by it,
although sometimes they haven't.
President Bill Clinton sent troops into Kosovo
without following the War Powers Resolution
and notifying congress.
- [Host] What's the argument that a president would make
that the war powers or anyone could make,
that the War Powers Resolution is unconstitutional?
That somehow conflicts with section two.
- [Jeffrey] The argument is
that the president's unitary authority under Article II
gives him complete power as commander-in-chief
to conduct military operations as he thinks best,
and that includes the ability
to send troops into the field
despite the explicit provision
in Article I, section eight of the constitution
that says the congress has the power to declare war.
The unitary executive people
and President George W. Bush's administration
claim this explicitly say
that the president basically can do
whatever he thinks is necessary
to preserve national security.
That led after the terrorist attacks of 9/11
other presidents including President Obama said
that because of the commander-in-chief clause,
various attempts by congress to limit
the president's unitary authority were unconstitutional
and the Bush administration said
the forbidding of torture of detainees,
warrantless surveillance,
the detention of U.S. citizens as enemy combatants,
all of these were unconstitutional.
The supreme court rejected many of those claims
including most famously in the
Hamdan and Rumsfeld case in 2006
where the court said that the president
could not set up military tribunals
without congressional authorization.
The big lesson from all these cases is that
when the president acts side by side with congress,
then the supreme court tends to uphold executive power.
But when this president acts unilaterally on his own
especially in the face of congressional disapproval,
the supreme court is likely to slap him down.
- [Host] But across all of these,
there is a, even though these cases
especially the ones we cite seem to
limit presidential authority to some degree.
There is this general notion
even our founding fathers thought of
which is yes, the congress has the power to declare war
but as the commander-in-chief,
what if we're suddenly attacked by someone.
Obviously, you don't wanna go through the process
of getting all the congressmen together and to vote,
you need to be able to act quickly.
It has always been understood that
as commander-in-chief, the president could
engage in conflict quite quickly.
- [Jeffrey] No question about it
and presidents have done so from the beginning,
the response to 9/11 is a famous example as well.
But many of the framers thought
that congress' approval was necessary
for serious wars, the war of 1812
there was a former declaration
but there were lesser uses of force
like the war with France in 1798,
conflict with the Barbary states in Tripoli and Algeria,
conflict with Native American tribes.
All of these are approved by congress
although without formal declarations.
In the modern era though, things have really changed
and presidents have used military force
without expressed consent from congress.
On lots of occasions, the Korean War, Libya,
Grenada, Lebanon, Panama, Noriega,
all of these are cases where the president
has used this force without congressional authorization.
And we haven't had a formal declaration of war
since World War II.
- [Host] I mean, that statement I think is worth
writing down that's why I-- (laughs)
- [Jeffrey] Okay, Let's write it down.
- [Host] Since World War II.
I mean, when I, when you say that
to me it's like well, what's,
it kind of feels like well,
we've clearly had what you and I
would consider wars since World War II,
Korea, Vietnam War, obviously post 9/11
what happened in Afghanistan.
We have the Iraq war, actually we have both the Iraq wars.
And you've had all sorts of military action
whether we're talking about drone strikes
or kind of very surgical interventions
and all of those were done without
a formal declaration of war by congress.
So, to what degree does this even matter anymore?
It seems like in modern times,
presidents are able to do what they need to do militarily.
- [Jeffrey] Well, that seems right.
Now, that's not to say congress hasn't acted.
Many of the wars we've talked about
have had informal statutory authorization
including most famously recently,
the authorization of the use of military force after 9/11
which was said to authorize
a lot of what happened after 9/11.
And it's now contested whether that continues
to authorize the war not against Al-Qaeda
which it was originally passed for,
but also against ISIS.
But it certainly seems to be the case
that formal declarations of war
have now been replaced with these more
informal authorizations
or even with presidential unilateral action.
- [Host] And I guess, maybe one argument there is that
in some of these wars,
it gives more flexibility to the president to be flexible
and there might not even be a state
to declare war against.
- [Jeffrey] That's true although there have been
a bunch of these wars where there are clear states.
Korea, Libya, Grenada, Lebanon.
More literalist conceptions of the president say
the president could have and should have asked
for formal declarations of war,
but that's not the way that the modern executive want.
- [Host] Fascinating.
Well, thanks so much Jeffrey.
This is really informative.
- [Jeffrey] Thanks. A pleasure to talk.