The Selling of a Precedent: The Past as Constraint on Congressional War Powers?

• Author: James H. Lebovic
• Position: Professor of Political Science and International Affairs at George Washington University
• Pages: 445-470

The Selling of a Precedent: The Past as Constraint

on Congressional War Powers?

James H. Lebovic*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445

I. RULE-BASED PRECEDENTS: ISSUES OF “THEORY”. . . . . . . . . . . . . . . . . . . . 448

II. FACT-BASED PRECEDENTS: CONCEPTUAL AND OPERATIONAL ISSUES . . . . 451

A. In Search of Conceptual Definitions: What Are War and

Hostilities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452

B. The Validity of Operational Definitions . . . . . . . . . . . . . . . . . 455

1. Questionable Exclusions: What Actions Contribute to War

and Hostilities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

2. Suspect Thresholds: At What Point Do Actions Amount to

War or Hostilities?............................. 457

III. ACTION-BASED PRECEDENTS: PARSING THE EMPIRICAL EVIDENCE . . . . . . 460

A. The Empirical Case Supporting Action-Based Precedents . . . 460

B. The Empirical Case against Action-Based Precedents . . . . . . 462

IV. THE LIMITS OF PRECEDENTIAL ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . 467

CONCLUSION.............................................. 469

INTRODUCTION

U.S. presidents have enjoyed wide discretion to manage national-security

affairs in the post-war era. The President received broad congressional authoriza-

tion to engage in major wars in Vietnam, Iraq (in 1991 and 2003), and

Afghanistan, and acted without advance authorization in “lesser” operations in

Panama, Somalia, the former Yugoslavia (Bosnia and Kosovo), and Libya. In

2019, the Trump administration would not rule out using the congressional

authorizations for the Afghanistan and Iraq wars as legal cover for a war with

Iran, based in part on its supposed links to al-Qaeda.

According to most constitutional law scholars, however, the Framers intended

to vest these discretionary powers in Congress.

1

James Madison argued, in fact,

that placing the power to conduct war and the power to determine whether a war

was fought, how it was fought, and when it was terminated in the hands of a

* James H. Lebovic is Professor of Political Science and International Affairs at George Washington

University. His research focuses on military spending, deterrence, arms control, weapons acquisition,

the arms trade, foreign aid, and international conflict. He has authored books on arms control and the

wars in Vietnam and Iraq. © 2022, James H. Lebovic.

1. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. J. OF INT’L L.

1199 (2006); STEPHEN M. GRIFFIN, LONG WARS AND THE CONSTITUTION 22-23 (2013); and ABRAHAM

D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS 56 (1976).

445

single leader would represent a profound conflict of interest?

2

So, how do we rec-

oncile the discrepancy between congressional prerogatives under the Constitution

with presidential war powers as currently practiced? One explanation—favored by

successive administrations—is that congressional powers have eroded through prece-

dent.

3

As one former official in the Justice Department’s Office of Legal Counsel

(OLC) put it, “A President does something. The next President comes along and

says, ‘I can do this other thing that’s just a step further.’”

4

More precisely, “every

extraordinary use of power by one President expands the availability of executive

branch power for use by future Presidents.”

5

Presidents are hardly passive beneficiaries here; they actively “sell” prece-

dents. They claim they are only doing what their predecessors did—with congres-

sional consent. For evidence, they parade historical examples from attacks on the

Wabash Indians and Barbary pirates under Washington and Jefferson to some of

nearly a hundred presidential actions since the end of the Vietnam War.

6

Administration officials even try to sell such “precedents” as consensual: emerg-

ing through a process of coordination and consultation between the two branches

of government.

7

For Secretary of State William Rogers, that was the Framer’s

intent: “the specification was left to the political process,” when “our constitu-

tional system is founded on an assumption of cooperation rather than conflict.”

8

Against what standards should we assess these claims? Constitutional scholars

have had their say in that regard but what does social science have to offer? The

analysis below holds executive claims to powers derived through precedent to

standards of social-scientific inquiry. It shows that these standards can usefully

supplement those employed in legal analysis. It also reveals the limitations of an

exclusive focus on legal analysis in the war powers debate.

Following Elizabeth Kier and Jonathan Mercer,

9

precedent is defined here “as

an act or statement that serves . . . as an example, reason, or justification for a later

2. GRIFFIN, supra note 1, at 21.

3. Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. 6 (2018) [hereinafter 2018

OLC Memorandum].

4. Fred Barbash, “The Law that President’s Make” is Unsurprisingly Kind to Executive Branch,

WASH. POST, June 1, 2019, at A4.

5. William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,

88 B.U. L. REV. 505, 511-514 (2008). Although precedent features less in analyses of war powers in the

political science literature, the term sometimes casually appears without necessary elaboration. William Howell

& Jon Pevehouse argue, for instance, that President Truman, by going to war in Korea without congressional

authorization, “effectively abjured constitutional requirement and established precedent for all subsequent

presidents to circumvent Congress when sending the military abroad.” See WILLIAM G. HOWELL & JON C.

PEVEHOUSE, WHILE DANGERS GATHER: CONGRESSIONAL CHECKS ON PRESIDENTIAL WAR POWERS 12 (2007).

6. For a comprehensive list of US military actions as they pertain to congressional oversight under

the 1973 War Powers Act, see CONG. RSCH. SERV., THE WAR POWERS RESOLUTION: CONCEPTS AND

PRACTICE, R42699 (2019).

7. Hearing on Libya and War Powers Before the Senate Committee on Foreign Relations, 112th

Cong. (2011) (statement of Harold Koh, Legal Adviser, Department of State).

8. William P. Rogers, Congress, the President, and the War Powers, 59 CAL. L. REV. 1194, 1210 (1971).

9. Elizabeth Kier & Jonathan Mercer, Setting Precedents in Anarchy: Military Intervention and

Weapons of Mass Destruction, 20 INT’L SEC., 77, 79-80 (1996).

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