Biden and War Powers

President Biden at a briefing in October 2020 (Adam Schultz / Biden for President, https://flic.kr/p/2k24C4G; CC BY-NC-SA 2.0, https://creativecommons.org/licenses/by-nc-sa/2.0/) One of the first efforts being made by progressives in the new Congress is to repeal the 2001 and 2002 authorizations for the use of military force (AUMFs) used by presidents for military operations across the greater Middle East over the past two decades. While some jurists opine that the time might be ripe for a reexamination of the war powers relationship between the president and Congress, any such repeal-and-replace would likely have to be supported by the president in order to succeed. Of course, President Biden’s support for or opposition to such an effort would likely be influenced by his own understanding of the war powers relationship. What, then, is Biden’s perspective on presidential war powers? A Long History Although journalists have already given substantial attention to Biden’s record on foreign policy in general, less attention has been paid to his view of the commander-in-chief power provided in Article II of the Constitution. Given Biden’s long time in the Senate, however, the new U.S. leader has had a long tenure dealing with war powers questions. Interestingly enough, Biden’s first year in the Senate, 1973, was perhaps the most important year in war powers history. This was the year in which the Paris Peace Accords were signed, ending American involvement in the Vietnam War, and in which Congress took the unprecedented step of affirmatively forbidding the use of force in the region (a vote for which Biden was absent ). Furthermore, 1973 saw the passage of the War Powers Resolution (which Biden supported ) and the publication of Arthur Schlesinger’s seminal “ The Imperial Presidency .” Over the past half-century, Biden’s view of presidential war powers has seemed to fluctuate between moderate congressionalist and presidentialist positions. On some occasions, for example, he expressed sentiment suggesting a relatively narrow view of the Article II powers. During the fall of Saigon in 1975, Biden gave several floor speeches related to Congress’s power over war. He lamented that “time and time again we members of Congress are repeatedly told by the press and presidents that we are incapable of making foreign policy decisions. We are told that the Congress with its 535 members is institutionally incapable of making policy decisions. It is my opinion that this is highly inaccurate. After all, it was Congress that insisted on our country’s extrication from the Vietnam War.” And when the Ford administration requested clarification from Congress—due to the recently passed War Powers Resolution and the 1973 Case-Church amendment banning military force in Southeast Asia—on what evacuation powers the president had in South Vietnam, Biden made a clear distinction between the narrow power of protecting Americans and the more expansive power of helping foreign nationals. In an April 23 floor speech, Biden stated that the president had the inherent constitutional authority to evacuate U.S. citizens but that authority relating to non-Americans was a wholly different matter falling outside of the commander-in-chief power. Interestingly, Biden was seemingly opposed to such an evacuation effort from a policy perspective as well.  A decade later, however, Biden seemed willing to embrace more expansive presidential power. Indeed, he co-authored a 1988 article in the Georgetown Law Journal agreeing with the already widespread sentiment that the War Powers Resolution had failed to fulfill its desired ends of encouraging interbranch deliberation and congressional input in use-of-force decisions while still permitting the president enough flexibility to meet grave dangers in an emergency. As a solution, Biden and his co-author pushed for more circumstances under which unilateral presidential action would be permitted, including: (1) to repel an armed attack upon the United States, its territories, or its armed forces;  (2) to respond to a foreign military threat that severely and directly jeopardizes the supreme national interests of the United States under extraordinary emergency conditions that do not permit sufficient time for Congress to consider statutory authorization;  (3) to protect and extricate citizens and nationals of the United States located abroad in situations involving a direct and imminent threat to their lives, provided they are being evacuated as rapidly as possible;  (4) to forestall an imminent act of international terrorism known to be directed at citizens or nationals of the United States, or to retaliate against the perpetrators of a specific act of international terrorism directed at such citizens or nationals;  (5) to protect, through defensive measures and with maximum emphasis on multilateral action, internationally recognized rights of innocent and free passage in the air and on the seas; (6) to participate in multilateral actions undertaken under urgent circumstances and pursuant to the approval of the United Nations Security Council; and (7) to participate in multilateral actions undertaken in cooperation with democratic allies under urgent circumstances wherein the use of force could have decisive effect in protecting existing democratic institutions in a particular nation against a severe and immediate threat. The authors noted that the Korean intervention (at least the initial stages), the Cuban missile crisis blockade, the Iranian hostage rescue attempt, the Dominican and Grenada invasions, Reagan’s bombing of Libya, and the Persian Gulf escort operations in 1987 would have been permitted under the proposed framework. In other words, the language put forward would have authorized virtually every controversial use of force undertaken by presidents between World War II and the time of writing.  Perhaps most interesting are the two proposed provisions authorizing the use of force pursuant to international authorization. The first would have covered uses of force undertaken under the auspices of U.N. approval, while the second—seemingly prescient of situations like Kosovo in 1999 or Syria in 2013 in which American allies were supportive of action but U.N. authorization was blocked by Russia—would allow for the use of force even absent U.N. approval if acting alongside “democratic allies” in order to protect “democratic institutions in a particular nation.” Permitting such uses of force absent congressional approval would seemingly be quite an expansive claim of power. It should be noted, however, that the article argued that even with these provisions “an extended use of force would eventually require congressional approval.” Nevertheless, the article suggests that from a normative perspective, Biden saw relatively broad presidential powers as desirable. Yet, only a few months later, as many lawmakers in both parties of Congress pressed a newly elected President Bush to intervene in Panama in 1989, Biden suggested that the president lacked any such authority. In an Oct. 5 floor speech, Biden argued that “[t]he president has the authority under the proper circumstances—under existing treaties or under the Panama Canal Treaties—to take actions that are allowed by the treaties to engage in multilateral actions with the Organization of American States but he does not have the authority now to go in for whatever reason and start a war or to use force to go in and remove a particular person.” Biden was likewise narrow in his interpretation of presidential power a year later, after the Iraqi invasion of Kuwait, when he endorsed a resolution that he described on Oct. 2, 1990, as requiring “the president to seek a declaration of war or other statutory authorization if significant hostilities break out.” Indeed, after Bush formally requested approval from Congress early the following year, Biden stated in a Jan. 10 debate that the decision to use force against Iraq was “a question which the Congress, and only the Congress, can answer”—a position contrary to the claims of the Bush administration at the time. Biden would then proceed to vote against the 1991 AUMF. To his credit, Biden showed intellectual consistency when the executive was a co-partisan. For example, when President Clinton very publicly threatened Haiti with invasion in 1994, Biden argued that “in the absence of an affirmative congressional vote the president does not now possess the power to authorize the use of force in Haiti.” He elaborated that “the president has the sole power to direct American military forces in combat. But that power has effect only after the proper authorization has been provided by Congress. Until that authority is granted, the president has no inherent power to send forces to war—except in certain situations such as to repel sudden attacks or to protect the safety and security of Americans abroad.” Later in the decade, Biden likewise declared during the Kosovo conflict that “it is clear that the president has to come to Congress to use ground forces.” As Mathew Waxman has likewise pointed out with respect to President Eisenhower, Biden seems to have a good sense of how congression
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