Jack Goldsmith on the Constitutionality of the Libya Intervention

Harvard law professor Jack Goldsmith, a leading constitutional law and international law scholar, has an article in Slate defending the constitutionality of President Obama’s use of force against Libya without congressional authorization.

I am a big fan of Goldsmith and his academic work. He’s one of the leading scholars in his field. In this case, however, I think his argument falls short.

Goldsmith makes two central claims: that the original meaning of Congress’ power to declare war is ambiguous and that longstanding practice supports presidential power to initiate war unilaterally. There is some merit to both arguments. But both are much weaker than Goldsmith suggests.

I. The Problem of Ambiguity.

Here is Goldsmith’s argument based on ambiguity:

Legal scholars disagree about the original meaning of the Constitution’s conferral on Congress of the power “to declare war.” Many contend it required Congress to formally approve all uses of U.S. military force abroad, save, as James Madison said at the Convention, in situations needed to “repel sudden attack.” Others maintain the “declare war” clause provides more leeway, allowing the president to use force abroad as long as the force does not rise to the level of “war,” whatever that means. Yet others argue that the framers meant simply to give Congress the authority to signal under international law a state of war; the real work in controlling presidential initiation of force, under this view, was Congress’ control over appropriations and the size of the standing army.

It is true that there is disagreement about these issues among legal scholars. But under either the first or the second view that Goldsmith lists, a large-scale military action that involves US forces in prolonged combat surely qualifies as a “war.” There is indeed some ambiguity about exactly where a small-scale “conflict” ends and “war” begins. But the fact that we cannot draw a precise line between the two does not mean that there aren’t numerous cases that clearly fall on one side or the other. We can’t draw a precise line between people who are “short,” those who are “average” height, and those who are “tall.” But that doesn’t mean that we can’t easily determine that Pee Wee Herman is short, while Shaquille O’Neal is tall.

Similarly, the existence of ambiguous borderline cases does not prevent us from readily concluding that Vietnam, Korea, and the two Iraq conflicts are wars, while President Clinton’s 1998 decision to launch a few missiles against Al Qaeda camps in Afghanistan probably wasn’t. As I noted in my previous post on this subject, the small scale of US military involvement in Libya so far might put the case in the ambiguous category. But if US air and missile strikes against Gaddafi continue for any great length of time, it will fairly rapidly clearly become a war – even if we cannot pinpoint the exact moment when it does so.

As for the claim by a few legal scholars such as John Yoo that Congress’ power to declare war does not limit the president’s ability to initiate force at all, the historical evidence is overwhelmingly against it. Even Alexander Hamilton – the biggest supporter of sweeping presidential power among the Founders – admitted that “the Legislature have a right to make war” and that “it is…the duty of the Executive to preserve Peace till war is declared.”

II. Historical Practice.

Goldsmith also argues on the basis of historical practice:

[P]ractice confirms that the president, under his commander-in-chief and other executive powers, has very broad discretion to use U.S. military force in the absence of congressional authorization. Presidents have done this, in military actions large and small, over 100 times, since the beginning of the republic. The largest and most consequential unauthorized military action is the Korean War launched by President Truman in 1950. Another big conflict without congressional authorization—and, indeed, in the face of an overt congressional vote that declined to provide such authorization—was President Clinton’s Kosovo intervention in 1999. Some less significant unilateral uses of military force in the past 30 years include Haiti (2004), Bosnia (1995), Haiti (1994), Somalia (1992), Panama (1989), Libya (1986), Lebanon (1982), and Iran (1980)….

Critics will claim that a pattern of consistently violating the Constitution cannot remedy the illegality of these actions. But that is not the right way to view this pattern. An important principle of constitutional law—especially when the allocation of power between the branches is at issue—is that constitutional meaning gets liquidated by constitutional practice.

I am skeptical that a pattern of practice automatically validates what would otherwise be violations of the Constitution. Did decades of longstanding segregation laws validate the constitutionality of Jim Crow?

Even if practice does have the force Goldsmith attributes to it, that practice is much less clear than he suggests. Most of the cases of “unilateral” executive use of force Goldsmith cites were small-scale actions where little or no actual combat was expected. These examples don’t qualify as “wars” unless virtually any use of force does. Such cases include Haiti, Somalia, Lebanon, and others. Other cases on Goldsmith’s list (e.g. – Libya 1986 and Iran 1980) were responses to terrorist attacks sponsored by the regime in question. Even those who advocate a narrow interpretation of presidential war power don’t deny that the president can use force to respond to direct or imminent attacks on Americans. The 1989 Panama intervention – a much larger use of force – also falls within that category. Before the US invasion, Panamanian dictator Manuel Noriega foolishly declared that a “state of war” existed between the two nations and threatened US troops and civilians in the area of the Panama Canal. Both points were cited by President George H.W. Bush in his justification for the invasion.

As I have pointed out in the past, Bill Clinton’s 1999 Kosovo War really is an example of large-scale unilateral use of military force by the president in the face of congressional opposition. But there are many more cases where the president sought and obtained congressional authorization in advance of military action or very soon after it began. These include Vietnam, Afghanistan, the two Iraq conflicts and others. Going back further in time, presidents also got congressional authorization for the War of 1812, Mexican War, the Spanish-American War, and the two world wars. Indeed, the actual historical practice suggests that the larger and more unambiguously “war”-like a planned military action is, the more likely the president is to seek congressional authorization and to avoid action that Congress is unlikely to endorse.

The Korean War is a major exception to this pattern, and I apologize for previously mistakenly suggesting that it was not. President Truman never sought congressional authorization for that conflict, even though he could easily have gotten it. However, Harry Truman’s decision to enter the war did enjoy overwhelming congressional support and most of the congressional and public criticism of his conduct of the fighting came from Republicans who claimed that he wasn’t acting aggressively enough.

In sum, the historical record cuts both ways. But there are many more cases where presidents have gotten congressional authorization for large-scale military action than those where they have not.