The New York Times has a survey today of the presidential candidates and their views of presidential power and — surprise surprise — Joe Biden’s take on the matter has become somewhat more expansive over the years.
If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.
“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.
“I will continue to rigorously apply this framework to any potential actions in the future,” he added.
The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”
Again, this is my shocked face.
The NYT piece carries three bylines, but one of them really matters. Charlie Savage. He’s been doing these surveys since 2007, back when he was a reporter at the Boston Globe, and I’ve been following his work the whole time. I’m glad he’s at it again. This is good, noble and necessary work. As he said on Bluesky this morning, these are “hard q’s about executive power that TV debate moderators never ask.”
I’m afraid I’m a bit cynical though.
The exercise began during the waning of the Bush Administration — which had used the 9/11 terrorist attacks to claim vast powers over warmaking and torture with expansive theories about the “unitary executive.” Congress — which does have the power over warmaking under the Constitution — seemed largely cut out of the process. And happy with that situation.
One reason I was thrilled for Obama to win during that cycle? His response to Savage’s first survey about presidential warmaking power:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
That’s not really how it worked, though, once he became president.
On March 19, 2011, President Barack Obama authorized military strikes on Libya to take out Libyan air defenses and protect rebels from attack. He told congressional leaders that the involvement would last “days, not weeks,” and he claimed the authority of the UN Security Council for his assault. But the UN can’t authorize American military intervention. As candidate — and senator and former professor of constitutional law — Obama understood in 2007, Congress must authorize the use of military force.
Obama did ask for Congressional authorization for an attack once — but it was a stunt, designed to get him out of intervening in Syria’s civil war. Congress didn’t bite. And American troops somehow ended up in Syria anyway. They’re still there.
All of which is to day: It’s not exactly shocking that Biden’s views of presidential authority to carry out attacks abroad has … expanded.
Presidential candidates talk a good game about observing constitutional limits. They always push — and in my view, exceed — those boundaries once in office. It’s good that Savage and his colleagues get candidates on the record. I’m not sure it means anything.