Professor Ramsey at the Originalism Blog disagrees with my view that Congress was within its rights to block the President from releasing the Taliban from Guantanamo Bay. He argues that the power to arrange prisoner exchanges has always been understood as among the military command decisions vested in the President by the Commander in Chief Clause. I find this unpersuasive.
First, the record is at best unclear about whether the framers believed this power to be inherent in that constitutional provision. During the War of 1812, for example, Congress passed the Prize Act, 2 Stat. 777, which “authorized” the President “to make such regulations and arrangements for the…exchange of prisoners of war as he may deem expedient, until the same shall be otherwise provided for by law.” They would not have passed such an act if they had believed that President Madison enjoyed such a power inherently. After the war, Congress repealed that law, and required the President to provide an accounting of the expenditures appropriated in the earlier law (3 Stat. 358).
True, Congress passed few similar statutes in subsequent wars. A March 13, 2002, opinion by the Office of Legal Counsel, then Assistant Attorney General (now Judge) Jay Bybee, argued that Congress has no constitutional authority to set rules for the government of the President’s exchange authority (2002 WL 34482991). That Opinion included a detailed history showing that Congress had typically chosen not to pass such laws, and that some legislators chose to oppose them because they thought power over prisoners was inherent in the President’s military authority. But the memo’s conclusions seem hasty to me.
Most importantly, Congress’s failure to act can’t change the meaning of the Constitution. We usually don’t draw conclusions from Congress’s inaction, because there are often all sorts of different reasons for Congress’s failure to pass laws—reasons that may have nothing to do with Congress’s authority. One reason might be that these are, indeed, matters subject to varying and complicated factors. And it is not easy to draw the line between an exchange of prisoners on the battlefield, which might properly be characterized as a military decision, and the release of prisoners as part of some overall policy—for example, releasing prisoners at the conclusion of hostilities—which might not be characterized that way. But while Congress has good reason to defer to the President in most cases, that seems to mean we should be more, not less, respectful of its choice to cease deferring and to employ its regulatory powers.
One can believe that power over prisoners is inherent in the Commander in Chief Clause, while still holding that Congress can limit and control the exercise of that authority. Congressional limits on the warmaking power were meant as a brake, and particularly an emergency brake. Nothing is proven by the fact that that brake has not often been pulled.
Congress often leaves its power to regulate the military uncrystallized until crisis requires it to act. The President’s powers as Commander in Chief are inherently indefinite—and Congress may choose to formalize and define those powers after their exercise, or when conditions have stabilized and become long-term rather than shifting and momentary. That’s why Justice Jackson put cases where the President acts and Congress has remained silent into its own category: Congress often sits back and allows the President to act—and then comes in and regulates and limits the authority he has exercised. The OLC memo, as was common in the Bush Administration OLC, read way too much into the history in an effort to prove Executive autonomy.
Prof. Ramsey asks if Congress could force the President to wait 30 days before ordering an attack in wartime. I think this is a bit of a straw man. Congress has very strong power over the President’s decisions as a commander. It declares war in the first place, and that means it can limit the war it declares. It sets regulations for the government of the land and naval forces, and that must include limiting the President’s choices as a tactician. Obviously Congress has no business controlling specific, on-the-scene battlefield decisions, but the Constitution clearly sets the presumption in favor of Congress, and not the President, on policy. The President’s role is primarily to execute Congress’s orders. And Congress does often limit battlefield choices. For example, 18 U.S.C. § 2441 prohibits war crimes—that’s certainly a statute that Congress passed that limits the President’s choices of battlefield tactics. Other statutes limit the availability of parole for U.S. soldiers convicted by a court martial (10 U.S.C. § 856a). Congress can also forbid the President from choosing certain targets during wartime—it does this by passing a declaration of war to begin with—and it can forbid the President from engaging in wars, as when it revoked Nixon’s authority to engage in war in Vietnam (which it did, again, through the appropriation power: 87 Stat. 130, 87 Stat. 99). And Congress has very frequently restricted deployments or military engagements, primarily under the appropriations power.
In the quoted portion of his article, Prof. Ramsey rightly observes that Congress could not restrict the Commander in Chief from directing specific operations (say, burning New York for tactical reasons, as in the Revolution). That makes sense, because those are not laws—those are orders. Congress is a legislator, and a specific command for a specific thing at a specific time is an order, not a law. But the 30 day notice requirement was a law. It was a general rule that established ordinary procedural steps. So this argument doesn’t work as Prof. Ramsey thinks it should.
Nor does Prof. Ramsey’s analogy to the President’s pardoning power. That power is held to be practically absolute, and admits of no Congressional interference. Could Congress then bar the president from issuing a pardon by restricting the use of funds for a pen to sign the pardon order? Obviously not. But this analogy actually supports my argument, because Congress’s lack of power over pardons contrasts notably with its extensive power over the military. Congress enjoys no constitutional authority to regulate pardons, set rules for pardons, make special appropriations for pardons, or define and restrict pardons. But it has explicit and broad powers (as opposed to the President’s indefinite and implicit powers) over the military: Congress, not the President, “make[s] Rules for the Government and Regulation of the land and naval Forces.” It, not the President, “declare[s] War.” It “raise[s] and support[s] Armies” and “make[s] Rules concerning Captures.” It “define[s] and punish[es]…Offenses against the Law of Nations.” It “provide[s] and maintain[s] a Navy.” It “provide[s] for calling for the Militia,” and “provide[s] for organizing, arming, and disciplining the Militia and…govern[s] them.” It “provide[s] for the common Defense.” It has no analogous control over the pardon. The pardon really is a “unitary” matter. Not so the war power. The war power is tightly constrained, and rigorously divided, and the overwhelming balance of that power is given to Congress. It makes the rules, which President may only enforce—and must obey.
Still, I agree there aren’t always clear boundaries between what is an inherently tactical decision vested in the President, and what is a proper regulation of the military forces, vested in the Congress. Even the realms of law and command can overlap. I also agree that there might be times when the President might have to simply break the law out of overwhelming necessity (whereupon he should admit it and ask Congress to ratify his decision). But I’m not persuaded that Congress lacks power to limit Presidential discretion on a choice like this—a choice which the President had years to consider, and which Congress—for reasons that are becoming clearer every hour—feared would be poorly decided if decided in haste.
Update: More from Ilya Somin.