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- [Host] So, I'm here with Jeffrey Rosen head of the National Constitution Center in Philadelphia and we're continuing to talk about Article II of the US Constitution which talks about the powers of the president. And now we're gonna focus a little bit on the first part of section two which talks about among other things that the President shall be the Commander-in-Chief of the Army and Navy of the United States, essentially the military of the United States. And this seems like there's a bit of a balance here because in Article I which describes the powers of the congress in section eight, it says the congress shall have power and it starts listing a bunch of stuffs, a bunch of things but one of the things that it list is the power to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water. How do these two things fit together, Jeffrey? - [Jeffrey] Well, they've led to the most dramatic constitutional controversies in American history as Justice Robert Jackson put it in the Steel Seizure case. These cryptic words of the commander-in-chief clause have given rise to some of the most persistent controversies in our constitutional history. Everyone agrees that congress has the power to declare war and once war is declared, the president has total control over the conduct of the war. There's civilian control of the military, there's a single leader once the war starts but how the president can act to deploy the troops in the face of emergencies when congress is silent, and how much congress can constrain its power has led rise to some huge constitutional controversies. - [Host] And the Steel Seizure case that you talked about, this was in 1952, this was arguably talking about the Korean War. What was the context there? Why did this need to be ruled on? - [Jeffrey] Well, it's an amazing case and the steel companies are gonna go on strike, and President Truman decides this is a threat to national security because the army needs steel to conduct the Korean War. He decides on his own without congressional authorization to seize the steel mills as part of his authority, his military authority as commander-in-chief and this goes up to the supreme court and the supreme court strikes him down. They say he can't seize the steel mills on his own. Truman is shocked, he's appointed many of the justices but the most influential opinion in the steel seizure case is the concurring opinion by Justice Robert Jackson, and I want our listeners to go check it out on the web because it's so important. And Justice Jackson identified three categories of executive power that every law student learns and they're easy to remember. Basically, when the president acts with congressional approval, his authority is at its height. When he acts in the face of congressional disapproval, his authority as at its lowest ebb. And when congress has neither approved or disapproved, the president acts in a zone of twilight, as Justice Jackson said. It sounds like the Twilight Zone and I always think of that music. (mumbles) But it means that in the Steel Seizure case, although the congress had not authorized the seizure and the president had no civilian authority to seize the steel mill, so he had no independent authority to rely on them in the zone of twilight, and therefore, the court held he acted unconstitutionally. - [Host] And Truman's argument might have been hey, look the constitution makes me the commander-in-chief. If I read that broadly I should be able to do whatever I need to execute in times of war. Steel is a very important input into making the things that you need to execute your war with. And so, if they're gonna go on strike, that's gonna keep me from being able to conduct our war. - [Jeffrey] That's exactly right. That's just what he argued and although some justices bought it including Chief Justice Fred Vinson who Truman had appointed, a majority of the supreme court said that civilian power over the military doesn't authorize the president to use his power in the United States in ways that might be helpful to the war effort. He needs explicit congressional approval for that. It really upset President Truman. He invited the whole supreme court. They actually invited him for drinks at Justice Hugo Black's house after the decision came down, and Truman sulked for a while and he said, "Hugo, I don't think much of your law "but my golly, this bourbon is good." So they kind of, (laughs) they made up after the case. (laughs) - [Host] And another I guess relevant, this isn't a case but a resolution, is War Powers Resolution 1973, historical context. We're nearing the end of the Vietnam War. What was the background there? - [Jeffrey] Well, congress was very upset that President Nixon had sent bombers into Cambodia without congressional approval, and there'd been other disputes about the president's power in Vietnam. Congress decided to try to codify exactly when the president could act to repel sudden attacks, which everyone agrees that he has the right to do. So, congress said, "President, you've got to notify us "within 48 hours of the time "that you send troops on your own "and you can only keep those troops "on the ground for 30 days, "except under extraordinary circumstances, "otherwise you need congressional approval." Despite this effort to kind of set out congressional approval for these extraordinary situations, some presidents have argued that the War Powers Resolution itself is unconstitutional as a violation of the president's commander-in-chief power. Others on the other side they said congress is sitting too much power to the president but so far the supreme court has not struck down the War Powers Resolution, and presidents are supposed to abide by it, although sometimes they haven't. President Bill Clinton sent troops into Kosovo without following the War Powers Resolution and notifying congress. - [Host] What's the argument that a president would make that the war powers or anyone could make, that the War Powers Resolution is unconstitutional? That somehow conflicts with section two. - [Jeffrey] The argument is that the president's unitary authority under Article II gives him complete power as commander-in-chief to conduct military operations as he thinks best, and that includes the ability to send troops into the field despite the explicit provision in Article I, section eight of the constitution that says the congress has the power to declare war. The unitary executive people and President George W. Bush's administration claim this explicitly say that the president basically can do whatever he thinks is necessary to preserve national security. That led after the terrorist attacks of 9/11 other presidents including President Obama said that because of the commander-in-chief clause, various attempts by congress to limit the president's unitary authority were unconstitutional and the Bush administration said the forbidding of torture of detainees, warrantless surveillance, the detention of U.S. citizens as enemy combatants, all of these were unconstitutional. The supreme court rejected many of those claims including most famously in the Hamdan and Rumsfeld case in 2006 where the court said that the president could not set up military tribunals without congressional authorization. The big lesson from all these cases is that when the president acts side by side with congress, then the supreme court tends to uphold executive power. But when this president acts unilaterally on his own especially in the face of congressional disapproval, the supreme court is likely to slap him down. - [Host] But across all of these, there is a, even though these cases especially the ones we cite seem to limit presidential authority to some degree. There is this general notion even our founding fathers thought of which is yes, the congress has the power to declare war but as the commander-in-chief, what if we're suddenly attacked by someone. Obviously, you don't wanna go through the process of getting all the congressmen together and to vote, you need to be able to act quickly. It has always been understood that as commander-in-chief, the president could engage in conflict quite quickly. - [Jeffrey] No question about it and presidents have done so from the beginning, the response to 9/11 is a famous example as well. But many of the framers thought that congress' approval was necessary for serious wars, the war of 1812 there was a former declaration but there were lesser uses of force like the war with France in 1798, conflict with the Barbary states in Tripoli and Algeria, conflict with Native American tribes. All of these are approved by congress although without formal declarations. In the modern era though, things have really changed and presidents have used military force without expressed consent from congress. On lots of occasions, the Korean War, Libya, Grenada, Lebanon, Panama, Noriega, all of these are cases where the president has used this force without congressional authorization. And we haven't had a formal declaration of war since World War II. - [Host] I mean, that statement I think is worth writing down that's why I-- (laughs) - [Jeffrey] Okay, Let's write it down. - [Host] Since World War II. I mean, when I, when you say that to me it's like well, what's, it kind of feels like well, we've clearly had what you and I would consider wars since World War II, Korea, Vietnam War, obviously post 9/11 what happened in Afghanistan. We have the Iraq war, actually we have both the Iraq wars. And you've had all sorts of military action whether we're talking about drone strikes or kind of very surgical interventions and all of those were done without a formal declaration of war by congress. So, to what degree does this even matter anymore? It seems like in modern times, presidents are able to do what they need to do militarily. - [Jeffrey] Well, that seems right. Now, that's not to say congress hasn't acted. Many of the wars we've talked about have had informal statutory authorization including most famously recently, the authorization of the use of military force after 9/11 which was said to authorize a lot of what happened after 9/11. And it's now contested whether that continues to authorize the war not against Al-Qaeda which it was originally passed for, but also against ISIS. But it certainly seems to be the case that formal declarations of war have now been replaced with these more informal authorizations or even with presidential unilateral action. - [Host] And I guess, maybe one argument there is that in some of these wars, it gives more flexibility to the president to be flexible and there might not even be a state to declare war against. - [Jeffrey] That's true although there have been a bunch of these wars where there are clear states. Korea, Libya, Grenada, Lebanon. More literalist conceptions of the president say the president could have and should have asked for formal declarations of war, but that's not the way that the modern executive want. - [Host] Fascinating. Well, thanks so much Jeffrey. This is really informative. - [Jeffrey] Thanks. A pleasure to talk.