Text, history, and presidential power

• Text. But USC text does not make President the sole organ of federal government. USC text vests in Congress a number of foreign affairs powers: power to declare war; power to regulate commerce with foreign nations; power to raise/support armies, power to provide/maintain navy; power to provide for organizing/arming/disciplining militia; and power to make rules for calling forth the militia to repel invasions.

• History. First, the history is ambiguous and thus only arguably supports SCt’s conclusion here. Second, it is not clear that historical practices are a valid basis of constitutional argument if such practices involved usurpation original allocation of constitutional authority.

Functionalism and the autonomy of constitutional interpretation

• SCt also made functionalist argument by asserting that only the President “can know the conditions which prevail in foreign countries,” “has confidential sources of information,” and can maintain secrecy.

• This argument parallels argument for delegation of legislative power to executive in domestic affairs.

• SCt’s functionalist conception of the executive adopted here is ironic since at the same time SCt was invalidating much of the New Deal on formalist grounds. SCt wanted a foreign policy that would be vigorous and interventionist, while preventing domestic policy that would be vigorous and interventionist.

• How valid are such functionalist arguments in constitutional interpretation? Are these arguments independent from controversial political judgments about appropriate role of federal government?

Allocation of war making authority

• USC is ambiguous on allocation of war making power as between President and Congress.

• President is made commander-in-chief of armed forces; no doubt that framers intended President to play principal role as representative of U.S. in relations with other nations.

• But Congress is expressly empowered to “declare war.”

• Does inherent presidential power include the power to send troops into combat abroad and to keep them there without Congressional authorization? If so, what is the practical significance of Congress’ Article I power “to declare war”?

• How can vesting of power to declare war in Congress be reconciled with presidential necessity that president be able to respond to emergencies?

• For that matter, how can judicial protection against racial discrimination, or of private property, or of freedom of the press, be reconciled with that necessity?

Approaches toward reconciling these provisions

• Evidence shows that framers believed President should be able to act to “repel sudden attacks.” But in other contexts, President could not initiate “war” without a congressional declaration.

• In modern circumstances, notions of “repel sudden attack” and “war” mean something different from what they meant for framers. Here are some different views on this issue:

• Underlying constitutional language is long-range purpose authorizing President to protect Americans from external force in an emergency. Given increasing mobility of weapons, President may sometimes conclude that offense is the best defense. Though his characterization may be debatable, President must necessarily be accorded a broad discretion. (Ratner)

• Enemy actions today not amounting to an attack can more obviously threaten U.S. national security than when USC was adopted. Thus, a sound functionalist interpretation of President’s power to “repel sudden attacks” should probably permit him to take any military action necessary to preserve our national security when there is not time to consult Congress – but subject to stipulation that President come to Congress for approval as soon as possible and terminate military action if Congress does not provide approval. (Ely)

• Historical development of self-defense rationale would limit independent presidential power to engage in war to certain cases involving direct attacks against U.S. But there may be some cases where violence abroad poses a threat so inimical to U.S. security that defense of U.S. itself is immediately involved. How do we decide which cases fall into that category? Should courts have a role here?

• Framers recognized that not every involvement of armed forces can be a “war” requiring congressional action. Meaning of “war” must be determined with reference to purpose of war-declaring clause: to safeguard U.S. against unchecked executive decisions to commit country to a trial of force. Two reasons for requiring Congress (not President) to approval declaration of war:

1. Such decision involves risk of great economic/physical sacrifice.

2. Very act of using force involves moral and legal consequences significant enough to require popular approval.