Structuralism and the War Powers: the Army, Navy and Militia Clauses

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

Structuralism and the War Powers: The Army, Navy and Militia Clauses

Robert J. Delahunty

Introduction

Hannah Arendt once wrote that the aim of the Founders' Constitution was "to reconcile the advantages of monarchy in foreign affairs with those of republicanism in domestic policy."[1] Allowing for the exaggeration that is pardonable in an epigram, her insight is correct. This Article is designed to explore and develop Arendt's claim in the context of the President's war powers.

The starting place is the work of the scholar whom this Symposium honors, Professor H. Jefferson Powell. Among Professor Powell's many significant contributions to constitutional scholarship is his emphasis on structuralism as a mode of analyzing separation of powers questions in the area of foreign affairs.[2] Particularly in the constitutional law of foreign affairs, as Professor Powell has emphasized, structuralist analysis is a sound approach. Although the relevant texts are bare and the evidence of the Framers' or Ratifiers' specific intent is often ambiguous (as, for example, in the Declare War Clause[3]), it is possible to make disciplined inferences from reading the texts as an attempt to form a coherent, unitary whole. This involves both extrapolating a unifying structure from the text (much as, for example, Justice Harlan sought to do, in his dissenting opinion in Ullman, for the "liberty" protected by due process[4]) and studying the practice of institutional interactions within the American government.

We may distinguish two broad kinds of "structuralism." One considers the constitutional text and the relationships between them in the abstract (as Justice Scalia did in Printz[5] and Chief Justice Burger did in Bowsher[6]), while the other considers them in light of history and governmental practice. Roughly, these types can be characterized as "conceptual" and "historical" or "empirical" forms of structuralism.

Historically based structuralist analysis itself can be developed in either of at least two ways--by considering the post-Founding institutional practices of American government, or by examining the constitutional texts and their relationships in light of (a) pre-constitutional American and British governmental practice and (b) the political--including geopolitical--environment of the Founding. Although Professor Powell is very interested in historically based structuralist analysis of the first kind, much of his work could be characterized as the latter. This Article is also an essay in historical structuralism of the latter kind.

The question I want to investigate is the nature and scope of the President's independent constitutional war power. Standardly, there are two very broad answers: presidentialist and congressionalist. A more nuanced, and perhaps more illuminating, distinction is between (a) those positions that presuppose that the Declare War Clause is a source of congressional authority that imposes some antecedent limits on the President's power to engage in war making and (b) those that deny that presupposition.

An important example of the former view, which attributes this kind of checking function to the Declare War Clause, is found in a 1994 opinion by the Justice Department's Office of Legal Counsel entitled Deployment of United States Armed Forces into Haiti.[7] That opinion presupposes that the Declare War Clause vests the Congress with some (undefined) measure of authority to constrain the President's ability to initiate hostilities.[8] However, the opinion argues that a declaration of war was not a constitutional necessity in that case--a military intervention of some 20,000 United States troops to bring down a military dictatorship in Haiti and to restore the elected government--because of a variety of factors specific to the intervention, including the nature, scope, and duration of the deployment. These factors, it was reasoned, led to the conclusion that the intervention in question was not a "war" within the meaning of the Declare War Clause, and hence did not require antecedent congressional authorization under that clause.[9]

While I do not disagree with the conclusion of that opinion, the position that I will outline in this Article is an alternative to, and a critique of, it. Specifically, I take issue with the assumption that unilateral presidential deployments of the military into armed conflict (or situations that threaten to give rise to armed conflict) must in at least some cases be antecedently authorized by Congress pursuant to its power under the Declare War Clause.[10]

The thesis I want to offer instead can be summarized as follows: Congress' power to control the Executive's ability, on its own initiative, to deploy military personnel or resources into situations that involve or threaten armed conflict is not rooted in the Declare War Clause but in the clauses of Article I relating to standing Armies, the Navy, and the Militia[11] (I will call these the Army, Navy, and Militia Clauses).[12] This understanding of the relationship of the various powers is borne out by a structuralist analysis of the political and, especially, geopolitical circumstances of the Founding.

I. The Geopolitical Circumstances of the Pre-Constitutional Republic

Because my analysis emphasizes the geopolitical circumstances of the Founding, it is useful to begin with a broad overview of how they presented themselves to the Founders.

At the end of the eighteenth century, the United States' strategic situation bore no resemblance to that of the "sole remaining superpower" of the start of the twenty-first century.[13] The United States in the late eighteenth century were (the plural is intended) marginal players in the European State system--on the periphery, the Atlantic littoral. Their position was extremely precarious.[14]

Although they had emerged successfully from their war with Great Britain, they had done so only with the indispensable assistance of continental powers (notably France, but also Spain and Holland).[15] The United States did not possess the military or material resources remotely commensurable with those of any of these established powers. At the start of President Washington's first Administration, the United States Army consisted of a mere 800 officers and men, most of them stationed along the Ohio River, and there was no United States Navy.[16]

Moreover, they were republics in a world of monarchies. Although there were or had been a few European republics (Britain itself under the Commonwealth, the Dutch Republic, Venice[17]), the character of the American governments made them ideologically unattractive to at least some of their recent continental allies (especially Spain).[18] Furthermore, if Britain was itself, functionally, a "republic" rather than a monarchy, Britain was also the American governments' most likely antagonist.[19]

Additionally, despite nominal independence, the United States were at serious risk of becoming mere commodity-exporting dependencies within the British imperial trading system.[20] Hence, in part, the efforts by Jefferson, Madison and others to encourage a (long-term) policy of global free trade, coupled with a (short-term) one of import-substitution.[21] They were also dependent on foreign capital investment--mainly British--to sponsor their internal economic development.

Further, their relationship with Great Britain had by no means healed. There were still outstanding conflicts over debt repayments, the evacuation of the Northwest Territory, the terms of trade, and other crucial matters.[22] The American states had also not abandoned the hope of attaching British Canada to themselves.[23] The time was still in the future when the Royal Navy would protect the United States' coastline from other foreign forces, while the United States held Canada hostage to Britain's good behavior.[24]

The states were also threatened because they were hemmed in by the colonies of hostile or potentially hostile powers, who were capable of mounting armed campaigns against them by land as well as by sea--Spain to the south and west, Britain to the north.[25] These two nations were, as Hamilton observes in The Federalist No. 24, "the principal maritime powers of Europe," and the possibility of "[a] future concert of views" between them with regards to the American states--notwithstanding Spain's dynastic link with France--was, in his judgment, not "improbable."[26] Aggravating those difficulties was the presence of potentially hostile Indian tribes that had often lent their assistance to European enemies of the British-American settlers.[27]

Finally, the American states were susceptible to severe internal divisions, largely regionally-based, over key questions such as access to world markets through the Mississippi.[28] The Federalist papers demonstrate acute awareness of these tensions and repeatedly emphasize the danger that European powers might exploit them.[29] The Constitution can be seen as an attempt to overcome these conflicts--"a reasoned response to a serious security problem that espied a sequence in which internal division and the intervention of superpowers" would make America the theater of perpetual war, just as Europe was.[30]

II. The Main Purposes of the Army, Navy, and Militia Clauses

The Constitution was framed largely in order to address these grave strategic problems. Consequently, any analysis of the Constitution's foreign affairs provisions, including the war powers, and of the relationships they create between the Federal government and the states and among the three federal branches, must take lively account of them. Most relevantly here, the clauses of chief concern to us, the Army, Navy, and Militia Clauses, seem to have had at least three main--and interconnected--purposes in view:

To enable the Federal government to deploy military forces of sufficient strength and depth to meet challenges to the security of the American homeland, whether...