Libya, Syria, ISIS, and the case against the energetic executive.

Author:Edelson, Chris
Position:The Law - Report
 
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The Flawed Energetic Executive Model

In the late summer of 2013, President Barack Obama seemed poised to order U.S. military action against Syria without congressional authorization. Obama "apparently [felt] the need to follow through on his threat" to use military force against the Assad regime if it used chemical weapons in the Syrian civil war (Cole 2013). However, following criticism from more than 150 legislators who insisted that congressional authorization was constitutionally required, President Obama changed course and asked Congress to authorize military action in Syria. John Yoo argued that the president's decision to seek congressional authorization was a mistake (Yoo 2013). In Yoo's view, President Obama had constitutional authority to act without congressional approval. (1) Yoo claimed that "the Framers did not lodge the war power solely with Congress ... [because] [legislatures are slow--Congress will not vote on the [Syria] authorization until the second week of September ... They [members of Congress] do not act with unity, secrecy, and speed" (Yoo 2013). Yoo worried that, because Obama had chosen not to act promptly and unilaterally, "[i]t seems likely that [Bashar al-] Assad will learn everything he needs to know about our tactics, strategy, and political will from a lengthy legislative debate" (Yoo 2013).

As it turned out, however, Congress never voted on legislation to authorize the use of military force against Syria, and the United States did not take military action against the Assad regime. (2) After President Obama asked Congress for approval, the crisis was resolved through diplomacy when Russia brokered a deal that would eliminate Syria's chemical weapons arsenal (Walsh and Labott 2013).

Yoo's concern that Obama had made a mistake by asking Congress to weigh in on the question of using military force against the Assad regime was based on a misconceived and constitutionally illegitimate energetic executive model of presidential power. By the energetic executive model, we mean the claim that Alexander Hamilton believed it was necessary to vest war power in one person, the president, who could order the military to act quickly and decisively in the name of national security. Yoo and other proponents of this energetic executive model are misreading both Hamilton's writings and the Constitution itself. When Hamilton spoke of energy in the executive, he did not mean that the president had plenary power over the use of military force, and even if Hamilton had meant this, the Constitution clearly rejects concentration of war power in the hands of the president. The energetic executive model is similar to the baseless sole organ doctrine of exclusive presidential control over foreign affairs (Fisher 2007). Each creates an illusion of legitimacy that depends on taking remarks by prominent figures in the history of public law (Hamilton for the energetic executive, John Marshall for the sole organ doctrine) wholly out of context to support a vision of presidential power that neither man intended and the Constitution expressly rejects. Both the energetic executive and sole organ theories seek to claim legitimacy through seemingly authoritative sources--for the energetic executive, an Office of the Legal Counsel (OLC) memorandum, and for the sole organ, dicta in a Supreme Court opinion (United States v. Curtiss-Wright Export Corp. 1936; Yoo 2001). But, on closer examination, these seemingly authoritative precedents are based on misreadings of the primary sources. Like the sole organ doctrine, the energetic executive model needs to be debunked and exposed as a fallacy.

The energetic executive model associated with Yoo and other advocates of plenary executive power fails, both as a matter of law and of policy. It fails as a matter of law because, as Hamilton himself recognized, the Constitution squarely rejects unilateral presidential military action outside of the limited context of an emergency defensive response to a sudden attack (Adler 2010, 537; Fisher 2013, 8; Kassop 2015, 164). It fails as a matter of policy because history shows that unilateral presidential action is simply not necessary outside of emergencies and can often produce dangerous, if unintended, results (Fisher 2012a). Advocates of the energetic executive model argue that unilateral presidential action can be justified beyond the limited emergency context, but there is simply no historical evidence to support their case. Most recently, the 2013 Syria episode mentioned above, as well as the use of military force in Libya (2011) and against ISIS in Iraq and Syria (2014), demonstrates that it is typically neither wise nor necessary for presidents to act quickly and unilaterally. These recent episodes are addressed more fully in the final section of this article.

It is important to note that, just as overly enthusiastic Hamiltonians can misread his support for an energetic executive as the basis for broad, even plenary, power over the decision to use military force, advocates for limits on presidential power may err by glossing over the need for meaningful emergency power. Jack Goldsmith is right to point out that, while it is essential to identify checks on presidential power, it is also essential to ensure the president has enough power to act during an emergency. While recent history raises concerns about unrestrained presidential power, Goldsmith is correct that there is also "the possibility of an insufficiently energetic or overly constrained presidency" if energy in the executive is given short shrift (Goldsmith 2013, 192).

The way to address Goldsmith's concern is to read Hamilton's writings carefully without losing sight of the text of the Constitution itself. Hamilton's call for energy in the executive can be squared with the Constitution if the president has authority to act unilaterally in a national security emergency when there is no time to consult Congress and the president later seeks retroactive approval for such emergency action (Adler 2012, 379; Pfiffner 2011, 112). In other words, necessity can justify unilateral presidential military action, but it also acts as a limit on presidential power. When there is time to consult Congress and obtain advance approval, unilateral presidential action is not legitimate (Pfiffner 2011, 116). As we discuss below, recent events in Libya, Syria, and Iraq demonstrate the wisdom of the constitutional model and underscore the bankruptcy of the energetic executive model.

How the Energetic Executive Model Gets Hamilton Wrong

At first glance, Hamilton's writings in The Federalist Papers seem to lend support to the idea that the Constitution was designed to create an executive capable of quick, decisive, unilateral action in the name of national security and therefore empowered to order the use of military force whenever necessary. It is not surprising that the energetic executive model claims Hamilton as its inspiration. As Jeremy Bailey notes, "Hamilton, after all, is perhaps the most famous American defender of executive power" (Bailey 2008, 454). In Federalist No. 70, Hamilton wrote that "[e]nergy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks ... [a] feeble Executive implies a feeble execution of the government" (Goldman 2008, 344). These words serve as the jumping-off point for the energetic executive theory.

In a September 25, 2001, memo he wrote while with the OLC, John Yoo cited Hamilton's writing to support the conclusion that the president has plenary power over the use of military force abroad (Yoo 2001). Building on Hamilton's assertion in Federalist No. 70 that unity in the executive--that is, a single person as head of the executive branch, rather than a plural executive or executive council--is desirable, Yoo declared that "[t]he centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch" (Yoo 2001). Yoo's memo ultimately concluded that any and all decisions involving the use of military force needed to respond to terrorist threats "under our Constitution, are for the President alone to make" (Yoo 2001). Yoo continued to take this view after leaving the OLC. In his book, Crisis and Command, Yoo claimed that Hamilton understood Article II of the Constitution as assigning the president "the ability to meet any challenge"--a power that "ought to exist without limitation" because the "circumstances that endanger the safety of nations are infinite" (2009, 425, quoting Federalist No. 233). According to Yoo, Hamilton believed the Constitution envisioned "a President with open-ended powers in time of emergency" (2009, 425).

In the age of terrorism, it may be tempting to look to the idea of a strong executive for protection (Robin 2004, 189). And, in turn, it may be tempting to invoke Hamilton as support for unilateral presidential action in the name of national security. Hamilton's use of the word energy, in particular, is attractive to those who favor broad presidential control over the use of military force. The word immediately connotes prompt, decisive, strong action, especially in the context of national security. However, as Louis Fisher observes, "Hamilton's use of such words as 'unity' and 'energy' were misinterpreted by Yoo to build support for a theory of plenary executive power that Hamilton never supported" (2011, 184). When Hamilton spoke of energy in the executive, he was not fixated on the idea of military force, let alone plenary executive power (Pearlstein 2009, 1581). For Hamilton, "the notion of 'energy' in the executive was not energy in the sense of speed, activism or power per se, but energy for...

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