Webb, Rice, and the Limits of Presidential Power

Matthew Yglesias awards Question of the Day honors to Senator Jim Webb’s inquiry of Secretary of State Condi Rice: “Is it the position of this administration that it possesses the authority to take unilateral action against Iran in the absence of a direct threat without congressional approval?”

It’s an interesting question and one Rice dodges. Yglesias observes, quite correctly, “it’s clear that this particular administration has never acknowledged any limits to presidential authority. It’s also worth saying that most recent administrations have claimed the authority to launch military actions without specific congressional authorization, so a presidential assertion of power in this regard would be less unusual than some of the other claims it’s made.”

Indeed. Arguably, the 1973 War Powers Act, in the name of constraining presidential authority, specifically authorized what Webb envisions. On the one hand, it states that,

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

This requirement has been roundly ignored by presidents of both parties. What has been observed, with at least moderate fealty, is the reporting requirements in Section 4:

In the absence of a declaration of war, in any case in which United States Armed Forces are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement.

This is simply an acknowledgment of the reality that, the Constitutional requirement for Congress to declare wars notwithstanding, presidents in their capacity as Commander-in-Chief of the armed forces can simply order troops into combat at will, thereby putting Congress in a reactive mode. The War Powers Act, in essence, delegates by statute much of the theoretical and unenforceable Constitutional prerogative over war-making to the executive in exchange for a bit of cooperation in oversight.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Edgardo says:

    As your argument makes clear, it was not an interesting question.

  2. James Joyner says:

    You have a point.

  3. RJN says:

    The Presidents role as Commander in Chief of the Armed Forces is an operational role. Initiating wars is not a Presidential power.

    By the way, Scott over at Powerline yesterday dropped all pretense of being interested in anything that is not requested by Israel, or for the benefit of Israel.

  4. Anderson says:

    Impeachment is the only real sanction to keep the presidency in check in such a case — say, an unprovoked first strike on Iran — and I am very, very much afraid that the Congress wouldn’t find the votes.

    Which would make the Declaration of War Clause pretty much a historical curiosity, if it isn’t already. I very much doubt that most of the American people think that Congress can or should be cut out of the loop on starting a war, but as we saw under Clinton, the people’s opinion matters very little to Congress where impeachment is concerned.

  5. James Joyner says:

    Impeachment is the only real sanction to keep the presidency in check in such a case

    I think that’s basically right as a practical matter.

    I very much doubt that most of the American people think that Congress can or should be cut out of the loop on starting a war

    It depends on where Congress stands vis-a-vis the president and the public, methinks. Most people care not a whit for procedure, presuming they even have a clue what it’s supposed to be.

    During the run-up to the Iraq War, people generally got angry at congressmen who dared criticize the president’s aim to take us to war. Now that the president is trying to escalate an unpopular war, people want Congress–within very narrow limits, I think–to apply the brakes. But that’s outcome-based rather than process-based.

  6. If I remember correctly, the 1973 war powers act had a provision that the president had 60 days to act from when a report was required and a further 30 days to continue to act on his say so before any lack of action on congress part mattered. If you think Bush would be looking to occupy Iran, then more than 90 days is likely to be required. If his intent was just to bomb the nuclear facilities, I would suspect that that could easily be accomplished within 90 days, even if it required multiple bomb runs.

  7. albee says:

    All Webb had to do was turn around and ask Sen Clintoon what the hell her husband did in Serbia.

    As I remember, Serbia did not do anything to Americans so Clintoons bombing of Serbia was an illegal act of war. Twenty eight days of bombing resulted in every bridge over the Danube and within Serbia destroyed. Last time I checked NATO had not released the death toll. I have heard reports of negligible loss of life. Low level saturation bombing makes that an impossibility.

    Webb obviously felt it was time he opened his mouth to see if the shoe still fit!

  8. Anderson says:

    If his intent was just to bomb the nuclear facilities, I would suspect that that could easily be accomplished within 90 days, even if it required multiple bomb runs.

    There is something VERY, VERY WRONG with any Constitutional interpretation that allows the President, unilaterally, to bomb another country for 90 days and then say, “just kidding!”

  9. Dave Schuler says:

    As I see it what makes things different from what the Founders envisioned isn’t the power of the president as commander-in-chief or his (or her) power as chief architect of foreign policy. It’s the existence of a large standing army.

    Today’s practice of maintaing our enormous military and the funding practices that go along with it render the Congress’s role in declaring war largely moot as a practical matter.

  10. Anderson says:

    It’s the existence of a large standing army.

    Good point indeed, and an argument for amending the Constitution. Which, god forbid, we might see some popular support for, if we attack Iran “preventively” & it goes badly for us.

  11. Harkonnendog says:

    Yglesias observes, quite correctly, “it’s clear that this particular administration has never acknowledged any limits to presidential authority.

    Kind of a ridiculous thing to write. You only have to cite one example where they did recognize a limit. How about Posse Comitatus and Katrina, for example?
    for those who aren’t aware of it

  12. Terrye says:

    Well did Clinton go to Congress and ask permission every time he lobbed a cruise misille?

    And if the Iranians are killing our soldiers is it the position of Senator Webb that the President should just ignore that?

  13. James Joyner says:

    Dave/Anderson: Quite right. That and the permanent national security state created by the Cold War. Essentially, we got into the mindset that we faced an emergency situation such that we simply couldn’t wait around for Congress to do something–the president simply had to be able to react in incredibly short order against potential nuclear attack by the Soviets. That threat has been gone for quite some time but the mentality persists.

    Harkonnendog: Yglesias is being hyperbolic, to be sure, meaning that Bush has pushed the envelope further than others have previously dared, basically asserting inherent power to do whatever he deems necessary to secure the nation. I don’t think Matt, or any serious critic of the administration, thinks that Bush literally thinks he doesn’t have to follow the law in any regard.

  14. Eric says:

    There is something VERY, VERY WRONG with any Constitutional interpretation that allows the President, unilaterally, to bomb another country for 90 days and then say, “just kidding!”

    Why do you say that? It was done numerous times in the 20th century. Did congress declare war on Grenada? Libya? Serbia? Panama? I could go on and on.

    As Dave Schuler pointed out, the founders envisioned a country without a large standing army, so the cooperation of Congress was necessary to instigate a war. Otherwise the president wouldn’t have an army to fight it with.

    But now… I don’t see any way we could get by without a standing army, and as a matter of practicality the president must be Commander in Cheif. If Congress were in direct control of the military then the generals would be political players. And eventually rulers.

  15. Zelsdorf Ragshaft III says:

    Anderson, do you pay any attention to world events? Must we completely ignore the president of Iran’s threats to destroy Israel and the great Satan, the United States. Do you suggest we absorb a nuclear strike on one of our cities or that of one of our allies? Anderson, I suggest you publish a notice where ever it will get the widest distribution giving exact coordinates to where you live so that when you have your way, and we are attacked again by radical Islam. You are sure to be among those who pay the price for your treason. We elected a man to the job of protecting this country. He is, without doubt, in a much better position to make the choices he make than you are. You are the terrorists best friend.

  16. Tom Perkins says:

    Anderson wrtote:

    Which would make the Declaration of War Clause pretty much a historical curiosity, if it isn’t already.

    With the power of the purse unquestionably resting in the House, I believe the purpose of the clause granting the power to declare war to the Congress is to give explicit grounds for impeachment if the Executive does not prosecute a war when the Congress desires them to do so.

    Yours, TDP, ml, msl, & pfpp

  17. Tired says:

    Webb’s question itself is stupid.

    “[I]n the absence of a direct threat,” he says.

    This country hasn’t been “in the absence of a direct threat” from the Islamic Republic in some 28 years now. They’re at war with us and have been for nigh on three decades. That Jim Webb of all people can’t understand that is a crying shame.

  18. Ranger says:

    Just to be completely accurate in this discussion I will point out that Clinton bombed Yugoslavia (Serbia and Montenegro) for 78 days. He never went to congress to request authorization for that act of war. He was the first president in history since the War Powers Act came into force to not make a formal request for congressional approval or ask for a 30 day extension as the War Powers Act requires. By contrast, both Bush administrations sought specific authorizations from congress before initiating hostilities against Iraq.

    As a side note, declarations of war are clearly now historical anachronisms. Not even in the Falkland Islands War did either side formally declare a state of war. In the US experience WWII was the last declared war this country engaged in. Both Korea and Vietnam were formally “Police Actions.”

  19. Oldcrow says:

    Matthew Yglesias awards Question of the Day honors to Senator Jim Webb’s inquiry of Secretary of State Condi Rice: “Is it the position of this administration that it possesses the authority to take unilateral action against Iran in the absence of a direct threat without congressional approval?”

    Senator Webb’s question presupposes that Iran is not a direct threat. This is incorrect we know Iran is DIRECTLY supplying Arm’s, Money and personnel to Iraqi terrorists both Shiite and Sunni also Iran is responsible for the Marine barracks bombing and the Embassy take over all of this are acts of war and it has been going on since 1974. If enabling and actually participating in killing our service men and women is not a direct threat I don’t know what is. This shows that Senator Webb is either not well informed(which I really doubt) or he is playing to his bias. As for the war powers act it is clearly unconstitutional on its face that is why no one has challenged any President in court on it. The war powers act was a way for Congress to avoid their responsibility and blame the President when things went wrong as proof I offer all the Democrats and some Republican politicians who voted for the war but now state they are against it.

  20. DRJ says:

    Mr. Joyner,

    Few people denied FDR’s authority to take military action during WWII, provided he (and presumably his military advisers) deemed it necessary. Of course, his clear authorization was the US declaration of war against Japan and its allies.

    How, then, do we deal with terrorism? It is arguably a world-wide war, too, but against an enemy that is not state-based. Shouldn’t the Constitutional powers of the Presidency be flexible enough to permit him to act to protect American interests subject to Congressional review and consultation under the War Powers Act?

  21. Alan Dawson says:

    Ranger writes:

    Both Korea and Vietnam were formally “Police Actions.”

    Well, heck, I can be more pendantic than Ranger. Korea was a police action (because it was a United Nations operation) and Vietnam was a “conflict”.

  22. MikeW says:

    Interesting on a number of fronts. First is the claim that we have such a huge/enormous standing military. The active Army has a force of approximately 500,000 personnel, and it is the largest of the military forces. The active forces in DoD together make up between 1 million and 1.2 million. That makes our enormous standing (read that active force) military approximately 0.3% of our population. So the claim of an enormous standing military is a crock, and most especially if you compare it with other countries – industrialized or not. In actuality, we’ve got a bargain on our hands with the size of our armed forces. The military’s budget is also no more than 4% of our GDP, which is the most relevant comparison about how it is a factor of our economy. The DoD budget during the Vietnam War (yes, it was a war) was clearly higher than the 4% of the GDP.

    As to the issue of whether Iraq or Afghanistan theaters of the GWOT qualify as declared war, the following link will take you to a transcript of a question and answer session Senator Joe Biden held with the Councl on Foreign Relations in 2001 after a speech there. The issue of declaration of war arose. His answer is quite interesting. If you don’t want to go through the entire session, the q & A about declaration is almost near the bottom of the transcript. I’ve also copied that piece just below the link. BTW, I believe that if it applies to the AUMF for Afghanistan, it must also apply to Iraq.

    http://biden.senate.gov/newsroom/details.cfm?id=229598

    M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

    JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I’m the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction … Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what … against whom we were moving, and what authority was granted to the President.

  23. albee says:

    Dang, I never got my police whistle! Who do I write? Harry is gone, MacArthur is gone. Not too many left.

    To this day I honor Harry Truman for the decisiveness. I can remember my Dad coming home and saying,”Truman saved the United Nations”. It proves no one is perfect but, still all in all, he is a man I will stand up and salute.

    I was there and lost friends, but it may be the last time the United States will stand up and do the right thing. Defend and free a nation under attack by a totalitarian government. Those of us can look at the differences between South Korea and North Korea and give ourselves that proverbial “pat on the back”.

  24. Nick Stump says:

    I’d feel a lot better about this so-called War Against Global Terror if we had more men like Jim Webb actually involved in the decision making. Pretty obvious this commander-in-chief business is not for the unprepared and inexperienced. I suspect the Jr Senator from Virginia will have more hard questions for this administration.

    At this point, how can we trust this administration to make decisions about Iran? Is Iran a real threat? It may be, but I can’t trust the present administration when they say so. So far, they’ve done nothing but show they are untrustworthy and incompetent they are. At every turn they have chosen to lie to us for political gain. Even if they’re right about Iran, do I trust them to make the right military decisions? Everything they’ve done so far tells me Bush and Company are not up to the job.

    As a Veteran of the last police action, or conflict, I would not trust the lot of them to plan or lead a patrol. The thought our present Commander in Chief has the power to make war terrifies me. This is no frat boy water balloon fight. His father was a wise and patient leader. This time the apple is miles from the tree and bush league is taking on a whole new meaning. Draft Webb ’08.

  25. Drew says:

    A State-of-War has existed between the Islamic Republic of Iran, and the United States of America, since 1979. They declared war upon us by the invasion of our sovereign territory (the Embassy) and the detention of U.S. Government personnel (both civilian and military). They released the personnel (hostages) on 20 Jan 1981, but have never paid for, or returned our Embassy – nor have they apologized.
    It is long past time to respond to these attacks that have occurred by Iran and its’ lackeys (Hezbollah, Hamas, etc.).

  26. Oldcrow says:

    So far, they’ve done nothing but show they are untrustworthy and incompetent they are.
    Posted by Nick Stump at January 13, 2007 18:03 Permalink

    The usual lefty tard talking points all opinion and incorrect opinion at that. Come on Nick give us some examples and evidence to back up the crap you are spewing. Here I will give you a starting point, why have we not suffered a SINGLE terrorist attack on U.S. soil or overseas in five years? How exactly have we been lied to? And does that mean that all others who said the same things the President said are liars also like your hero Jim Webb? Does this mean every Administration and Government who said the same things are untrustworthy and incompetent such as the Clinton administration every single Democrat and the governments of the UK, Russia, France Italy and the UN?

  27. AST says:

    The problem is that the War Powers act speaks of “consulting,” which means he has to discuss, receive Congress’ opinion and counsel, but does NOT mean he has to accept, agree with or act on it. His oath is to “execute the office of President” whatever that means, and to “preserve, protect, and defend the Constitution.”

    If the statute had said he can’t use the troops at all without a declaration of war, it would have been unconstitutional.

    The problem with this, like nearly every issue, on which the two disagree, is that it’s like trying legislate “bipartisanship.” Congress is nothing more than a glorified committee and you can’t run anything that way. Somebody has to make decision and give orders, and respond to emergencies, but Congress, especially when dominated by the opposing party, is about the worst body imaginable to do those things.

    Obviously, the President doesn’t have unlimited power, but there is nothing that says he has to agree with Congress on every question or follow instructions of one group in Congress, which is more the present situation that most Bush critics would admit. I doubt, for example, that the advocates of an immediate pull out could get a majority in either house.

    The President has valid reasons for being unwilling to leave a power vacuum in Iraq, because of the humanitarian crisis sure to follow. I don’t think there are any good options. Leaving Saddam in place was as much a problem for us as we now have, because he was well on his way to subverting the U.N., removing the oil embargo, and getting rid of inspectors. He had already used nerve gas against Kurds, and violated his agreements at the end of the first Gulf War, which was why we and the Brits were patrolling the no-fly zones and being regularly fired at with rockets. That may be some people’s idea of peace, but it’s not mine.

  28. Nick Stump says:

    OldCrow,

    I would ask you why you are so frightened by Jim Webb? Does the presence of an actual warrior in Washington make you fear you’ll be found out. I suspect it does. We’ve seen a lot of tough talk but the talk has always been backed up with the blood of young men and women who should have never seen Iraq.

    Face it, your team had control of both houses of Congress, the White House and the Supreme Court and did nothing but put this country in more trouble than ever. I have never seen a better political opportunity squandered and never have I seen a less able group in the White House. Don’t get me wrong, there’s been plenty of fouled-up Democrats in that office, but I believe Mr. Bush Two will go down in history as the worst President in History. I have enormous respect for his father, who was thoughtful, cautious and ultimately able to free Kuwait without getting us caught in the monkey trap of invading Iraq. Bush Two is an embarrassment to his father and this time the apple fell miles from the tree.

    Now we see the Taliban retaking Afghanistan and we can’t do anything about it because our Army is stuck in Iraq. Sure there’s terrorists in Iraq. Why not? There’s plenty of Americans to shoot at. Do I think our sons and daughters dying in Iraq keep us safe from attack here. I don’t. If they had weapons of mass destruction, they could drive them through any number of the border crossings next to Mexico, not to even mention the thousands of cargo ships that dump uninspected cargo on our shore daily. We’ve been lucky, but Bush gets no credit for luck. I don’t think we’ll stay lucky forever, and I believe another attack on our mainland is just a matter of time.

    I’m not against any war. I’m against incompetent leadership. No fault against our military. They did a great job, especially when they took Bagdad. Unfortunately, there was no plan to finish the job–no plan about how to police the situation once we took the city. Every move has been the wrong one. Too small an Army to hold the territory we took and you know the rest.

    I would think the right wing of this country would stand up and applaud Jim Webb. Webb is a real conservative, something we don’t see very much any more. Where are the Barry Goldwaters and the John Sherman Coopers. They were true conservatives. They were conservative, believing in small government and a right to privacy. Like Jim Webb, they believed the government should stop at one’s doorstep. What happened to you guys? Where are your real conservatives. These neo-cons will be put on the endangered species list, for they will soon be in the history books as a failed political movement. We used to be able to trust conservatives to keep us out of the foolishness of nation building but neo-cons have lost their way and too many Republicans are in lockstep following them right over the cliff.

    Jim Webb will be giving the Democrats retort after the State of the Union speech next week, and I urge you all to give him and honest listen. He didn’t leave the Republican party out of boredom. He understands the failure of the neo-com movement and I urge all good Republicans to open your minds to what he has to say. He is the voice of real experience and deserves an unbiased listen.

    I’m no checklist liberal. I expect our government to use our military wisely and to good effect. Instead, Bush and Company throw them away like so many toy soldiers. We’re losing the best of our officer corp and experienced NCO’s. They’re leaving the military because of the endless deployments, and the military will be a long time recovering from this loss.

    Old Crow, you need to bone up on your strategy and tactics. Your sophist manner of piling up a group of the same old questions doesn’t give me any idea of what you believe in and as they’re the same old questions, not worth my time answering. If you believe this administration has been honest to the American people, I’m not sure what to say to you, except to say you’re wrong and the whole country knows about the lies, the manipulation of intelligence for political purposes, even the leaks to the New York Times, leading what used to be the paper of record to turn into little more than a place to print White House press releases, at least during the Judith Miller period. I’ve already heard all your talking points spewed out by O’Reilly and Rush. You have any thoughts of your own, by all means, I’d like to hear them.

    For my money, I’d like to see an experienced military man in the Oval Office. I believe we’re going to be in this war for a long time and we need more than tough talk when we fight. We must fight smart. I hate sitting here flinging insults and venom back and forth. I believe we all have to sit down at the same table and figure out what’s the best thing for the country. Are we going to be nation builders? I’m not for it, whether it’s Clinton or Bush.

    Like a lot of Americans, I’m waiting out this last Bush term, hoping he doesn’t do anything else stupid before he leaves. I’ve never been in the impeachment crew, but if he opens up another front in this war, I would change my mind. Mostly I just want him out of there before he gets too many more good soldiers killed. They deserve better leadership from their commander-in-chief.

    We all do.