Testing the 'Imperial Presidency': Was Biden's first airstrike constitutional?
On Thursday February 25th, President Joseph R. Biden Jr. ordered airstrikes on Kata'ib Hezbollah and Kata'ib Sayyid al Shuhada bases in Eastern Syria. The US military targeted these Iranian-backed militia groups in response to deadly rocket attacks on US and Iraqi-coalition forces in Erbil. Kata'ib Hezbollah was also targeted by former President Trump who ordered airstrikes in Iraq in January 2020, killing the notorious Iranian Quds Force commander Qasem Solemani. Citing domestic and international law, a Biden National Security spokesman defended Thursday’s airstrike as pursuant of, “inherent self-defense powers enshrined in our Constitution and the UN Charter.”
Biden’s retaliatory attack ought to capture the IR community’s gaze for two chief reasons. First, Biden is a known skeptic of US foreign intervention. Despite voting for the 2003 Iraq War, Biden crystallized his skepticism on military engagements during debates on Afghanistan strategy in the Obama Administration. During his 2020 campaign Biden declared, “the use of force should be our last resort, not our first—used only to defend our vital interests, when the objective is clear and achievable, and with the informed consent of the American people.” Second, the pointed criticism offered by Democratic lawmakers in response to Biden’s airstrike, most notably by Senators Murphy and Kaine, opens a very important historical and legal discussion on a President’s constitutional role in setting US foreign policy.
In his seminal 1973 text The Imperial Presidency, Arthur Schlesinger Jr. writes, “... the Imperial Presidency received its decisive impetus, I believe, from foreign policy; above all, from the capture by the Presidency of the most vital of national decisions, the decision to go to war.” While it is far too early for us to determine if Biden is indeed an Imperial President, the IR community should be mindful of imperial practices when analyzing this administration’s first lethal military action.
The Executive Prerogative
By criticizing the Biden airstrikes, the Democratic Senators have revealed deep tension between the executive and legislative branches in the theatre of international relations. Controversy over the executive’s role in directing foreign policy first emerged under George Washington’s leadership. In 1793, Washington issued the Proclamation of Neutrality which ensured that the US would not side with Britain or France in their sustained military conflict in the European theatre. As Washington did not seek congressional approval to enforce this proclamation, critics condemned Washington’s decision as a unilateral, and unconstitutional action. Under the pseudonym “Pacificus”, Alexander Hamilton publicly defended Washington’s decision as acceptable by citing the vesting clause of the US Constitution. Specifically, Article 1, Section I of the Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In reference to the executive office, Article 2, Section I states, “The executive Power shall be vested in a President of the United States of America.” In Hamilton’s view, the omission of the word “herein” in Article 2 provides President Washington and all his successors with wide powers that, unlike Congress, extends beyond the Constitution’s written text. Hamilton’s astute textual observation on expansive presidential powers gives rise to the executive prerogative.
Rulings by the US Supreme Court have gradually given US Presidents carte blanche for non-compliance with the legislative branch on matters of foreign and defense policy. During the Civil War, President Lincoln decided to blockade sea ports in South Carolina without congressional consent. In the Prize Case of 1863, the Supreme Court determined that Lincoln acted constitutionally in ordering the blockade. The Court’s decision stated, “The President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.” Although Article I vests war authorization powers firmly with the Congress, the judicial body tasked with interpreting the Constitution explicitly chose to legitimize Lincoln’s executive prerogative.
Since The Prize Case, the Supreme Court has diminished congressional relevance in US foreign policy. In their 1936 decision United States v. Curtiss-Wright Export Corporation, the Court cemented this legacy. For context, by 1932 militants in Paraguay and Bolivia were engaged in a bloody regional conflict. The US Congress approved Franklin Roosevelt’s presidential proclamation in May 1934 that enforced a weapons embargo in trade with militias in Paraguay and Bolivia. In January 1936, “four corporate officers were indicted… for conspiring to sell aircraft machine guns to Bolivia in violation of the congressional resolution and presidential proclamation.” In response to the indictment, the Curtiss-Wright legal team argued that Congress unconstitutionally delegated their legislative power to President Roosevelt. Interestingly, the Curtiss-Wright case is not an instance of a strong President acting “out of bounds'', but rather a case of the Congress delegating their enumerated duties to the executive branch. Upon hearing oral arguments, the justices ultimately sided with Roosevelt’s executive prerogative as their predecessors did for Lincoln in 1863. The Court’s majority decision read:
“ It is important to bear in mind that we are dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations…” (United States v. Curtiss-Wright Export Corporation, 1936).
This landmark judicial decision fundamentally rejects the principles of shared institutional power within US foreign policy infrastructure. The reference to the President as the, “sole organ in the field of international relations” best captures the modern Imperial Presidency.
What does the Imperial Presidency look like in practice?
President Harry S. Truman’s foreign policy towards Korea was characteristically imperial. In 1950, Truman strayed from the convention of congressional approval by deploying American troops without legislative consent. Truman’s Korea foreign policy was a watershed because, as Schlesinger notes, “Never before had a President claimed constitutional authority to commit so many troops to a theatre of potential war against a major foe.” For context, Truman announced in June 1950 that the United Nations ordered the North Korean forces to withdraw from the thirty-eighth parallel boarding South Korea. On June 27th, Truman deployed air and sea support to the Korean peninsula and justified this quick deployment as a “UN police action” rather than an “American War.” Truman and Dean Acheson, the Secretary of State, saw North Korea as a threat because they felt, “if North Korea succeeded in its attack, the peace system would collapse, and communist aggression would be encouraged at every soft point along the periphery of the free states” (Schlesinger 1973, p. 131) . In defense of Truman’s Korea policy, Secretary Acheson argues,
“Not only has the President the authority to use the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution.” (Acheson as quoted in Schlessinger 1973, p. 136)
This is a clear argument, and defense, for the Imperial Presidency as it essentially asks Congress to suspend their constitutional powers and let presidential authority reign in foreign policy. Acheson’s argument echoes the Supreme Court’s 1936 description of the President as, “the sole organ of the federal government in the field of international relations.”
Continued, in his foreign policy towards Haiti and Kosovo, President Bill Clinton displayed little regard for the process of congressional oversight intended by the constitutional framers. After Haiti’s first democratically elected leader Jean-Bertrand Ariside was ousted by a military coup in September 1991, the ensuing Haitian refugee crisis moved the US government to intervene militarily. By July 1994, the UN Security Council passed a resolution imploring member states to address the Haitian military regime by any means necessary. During an August 1995 White House press conference, Clinton was asked if he required congressional consent to intervene militarily in Haiti. While Article I of the Constitution would suggest that legislative approval would be required in this case, Clinton answered differently. Tapping into arguments for the executive prerogative in foreign affairs, Clinton declared, “Like my predecessors from both parties, I have not agreed that I was constitutionally mandated to obtain support from Congress.” Clinton’s remarks suggest that an imperial approach to foreign policy was considered common presidential practice by the mid-nineties. Moreover, in his efforts to protect ethnic Albanians in Kosovo, Clinton did not acquire congressional approval to bomb Serbian military targets in 1999. Even after the House of Representatives failed to vote for military engagement in a 213 -213 tie, Clinton directed airstrikes against the Serbs. This continued disregard of congressional authority is not necessarily a comment on Clinton’s leadership, rather this exposes a revealing pattern on the imperial nature of the modern US Presidency.
So, was Biden’s airstrike constitutional?
A handful of Democratic legislators have characterized Biden’s airstrike as unconstitutional given that Congress did not pass authorization for the use of military force in Syria. Tim Kaine (D-VA) argues, “Offensive military action without congressional approval is not constitutional absent extraordinary circumstances.” In connection, Chris Murphy (D -CT) believes, “...retaliatory strikes, not necessary to prevent an imminent threat, must fall within the definition of an existing congressional authorization of military force.” These Senators base their criticism against Biden on the War Powers Resolution of 1973, which requires the President to consult Congress 48-hours prior to a military engagement. The resolution also dictates that the President must end the engagement between 60 - 90 days after deployment of troops and resources unless Congress authorizes continued engagement.
To be clear, the Biden Administration notified the Congressional Leadership of their plans to attack Eastern Syria prior to the airstrike.
The task of interpreting the US Constitution is a delicate and ambiguous legal practice. For better or worse, judges, senators, legal scholars, IR academics and US presidents are unlikely to arrive at a single, unified interpretation of the 245 year-old document and her articles. However, the Prize and Curtiss-Wright Supreme Court decisions make exceedingly convincing arguments for the President’s executive prerogative in US foreign policy.
In a letter to House Speaker Nancy Pelosi and Senate President Pro Tempore Patrick Leahy, Biden defended his relatitory airstrike as , “consistent with [his] responsibility to protect United States citizens both at home and abroad and in furtherance of United States national security and foreign policy interests, pursuant to [his] constitutional authority to conduct United States foreign relations and as Commander in Chief and Chief Executive.”
Image courtesy of the White House, 2021, public domain.
