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.