Declaration of war

[Volokh, Eugene]

    Whether the President can act -- whether by ordering an attack on a
post manned by low-level soldiers, or an assassination of a
commander-in-chief -- in the absence of a declaration of war is
analytically separate, I think, from whether assassination as such is
unconstitutional (a rule that might not even be sensitive to whether war
is declared).  It's a classic question, but one that I think is much
worth discussing.  So, if I might ask:
 
    What do people on the list who have studied the subject think about
the original meaning of the Declare War Clause?  To what extent does it
limit the President's power to use military force in the absence of such
a declaration?
 
    As I understand it, modern practice has generally settled that the
President does have broad power to use military force, even without a
declaration of war.  But I'd love to hear what others think about the
original meaning.
 
    Eugene

-----Original Message-----
From: guayiya [mailto:guayiya at bellsouth.net] 
Sent: Monday, August 29, 2005 3:06 PM
To: Volokh, Eugene
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Robertson's urging the government to assassinate Chavez


This post appears to reflect an unstated assumption that the President,
unlike Congress, has power to do anything not expressly prohibited by
the Constitution itself.  This assumption has no textual or structural
support, and does potentially boundless damage to the rule of law, the
separation of powers and individual rights, just as would a similar
doctrine regarding Congress.
The President strictly speaking has power to perform acts of war only
after Congress declares war.  One who acts without the form of
authorization required by the Constitution has usurped power and must
"throw himself upon the country," i.e., fall back on
extra-constitutional arguments and hope for political, not
constitutional or legal, vindication.
It is obvious that Congress and the courts have failed to stand
consistently on these principles.  That is a very serious matter, but it
does not amend the Constitution.
Daniel Hoffman

Volokh, Eugene wrote:


    It seems to me that the Constitution does not prohibit the President
from authorizing the killing of foreign commanders-in-chief any more
than it prohibits the President from authorizing the killing of foreign
soldiers.  I think such assassinations may be immoral in many instances,
and practically harmful in many others.  But it seems to me that this is
a matter for political and moral controls, not constitutional or legal
ones.
 
    Eugene

-----Original Message-----
From: Lynne Henderson [mailto:hendersl at ix.netcom.com] 
Sent: Saturday, August 27, 2005 6:08 PM
To: RJLipkin at aol.com
Cc: jca at stanford.edu; mschor at suffolk.edu; Volokh, Eugene;
conlawprof at lists.ucla.edu
Subject: Re: Robertson's urging the government to assassinate Chavez


"Almost never?" Obviously Hitler is the counter-example, but we were at
war (foramally declared) with Nazi Germany, and as I understand the law
of war, killing the enemy is justified. We might be sorely tempted, and
realpolitick might justify the murder of someone opposed to US
interests, but how can you distiguish among Pol Pot, Idi Amin, Saddam
Hussein, etc. Chavez doesn't even come close IMHO, although that is not
directly relevant. In fact, the law might very well (and rightly so)
prohibit assassination because we cannot come up with reliable criteria
for who should be assassinated when. Defenses can be carved out. 

To cut to the con law chase, I guess, however, what the "rule of law" is
does matter. A basic point of "this is a government of laws, not men" is
that whim, caprice, power, or manipulation cannot override legal
obligation. That the *content* of legal obligation is contested doesn't
undercut the overriding claim of the "rule of law." If the President
decides, as Nixon did, that "if the president does it, then it is not
against the law", and you accept that, then we are well on our way to an
authoritarian/totalitarian state. If clever lawyers can find ways around
the purpose and intent of a legal prohibition, that doesn't negate the
purpose and intent. If there is "room for interpretation' or judges
exercising discretion (cf H.L.A. Hart, *The Concept of Law*), that
doesn't mean abandonment of the commitment of the duty to obey law (and
note the difference between legal duty to obey and moral duty to obey). 

It amazes me how narrowly "positivist" the group members get--that is ,
what is declared, written, human law interpreted without spirit or
purpose--when they want one result, and how willing they are to depart
from the model when it suits their ends. Eg, there is no constitutional
provision explicitly prohibiting the President from torturing prisoners
of war, or assassinating foreign leaders, and there is no positive
domestic law "clearly on point", so therefore,torture is not prohibited,
or in this case it is permissible to assassinate a foreign leader. 

The duty to obey the law can narrowly or broadly, but that doesn't
disocount Janet's broader point, that governments under the "rule of
law" have a prima facie duty to obey that law, no matter what their
preferences, whims, etc. 

Lynne Henderson 

Vis. Prof. Santa clara Uni. School of Law 2005-2006 

 



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