A Memorandum on the Topic Area Stephen Heidt Georgia State University [All opinions expressed are my own and

do not reflect official statements from GSU or the GSU debate team.] While I am unlikely to appear at any debate tournaments in the coming academic year, I am interested in the topic selection process, mostly because the topic area, presidential war power, relates directly to my dissertation. In the interest of promoting the selection of a productive debate topic for the coming year, Ive decided to offer some thoughts based on my readings (to date) of the academic literature related to the war powers controversy and how I think that controversy implicates a debate topic. Two notes before I proceed: first, the authors of the topic paper are to be congratulated. The paper itself does what good topic papers do it establishes a rough set of parameters for a controversy. It is imperfect and, I suggest, in error in several key places, but that is indicative of the process and does not reflect poorly on the authors. The authors should be commended for covering a great deal of potential ground and for providing a vast quantity of literature to flush out that ground. Second, Im unlikely to engage in much dialogue beyond this post. I do, after all, have a dissertation to write. But beyond that immediate exigency, Im not a partisan in the topic discussion. I have no vested stake. I am unlikely to appear at any debate tournaments in the coming academic year, I have virtually no engagement with the GSU debate team (or any other debate team), and I will not be present at the topic committee meetings. I offer the following in the spirit of academic openness and in the belief that the relation between academic study and debate can, and should, be coproductive. Which is to say, the topic area, presidential war power, relates directly to my research and I have a vested interest in dedicating the time, as much as I can reasonably afford, to reading and reflecting on the community conversation related to this topic both in the short term and over the course of the season. This post is an argument for a straightforward resolution focused on restricting presidential war power, that is, the presidents power to make war, and an argument against two possibilities: a list topic and blurring the distinction between Presidential War Power and Commander in Chief Power. List topics have gained favor as a means to identifying core Aff ground and preventing the rapid expansion of small, difficult to predict and research affirmatives. I am not critiquing that trend or negating the value of small topics to small schools. Instead, my argument: A Presidential War Powers topic is already EXTREMELY narrow. First, the topic committee and voters need to understand that Presidential War Power is not Commander in Chief Power. The topic paper, following a trend in legal scholarship and news media, blurs the distinction between the categories by alluding to presidential war power as commander in chief power (p9 at note 13). But war power is categorically distinct from commander in chief power. This categorical distinction derives directly from the powers

enumerated in the Constitution. Those powers can be summarized as Congress declares war, Presidents execute wars. Constitutional evidence: Article 1, Section 8: The Congress shall have the power: To declare warto raise armies and support armiesto provide and maintain a Navy, to make rules for the Government and Regulation of the land and naval Forces, to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States Article 1, Section 9: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it. Article 1, Section 10 which reads: No State shall, without the Consent of Congressengage in War, unless actually invaded, or in such imminent Danger as will not admit delay. Article II, Section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several statesHe shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur To summarize: War powers are enumerated in Article 1 of the Constitution. Commander in Chief power is enumerated in Article 2. The framers of the Constitution kept the two entirely distinct, on purpose, as a means for resolving the tension between the danger that a strong president would risk dictatorship and the need for unfettered power of the executive to conduct and win war. The key constitutional controversy related to war power is NOT what weapons presidents get to use or how presidents get to pursue war. It is that presidents have continuously utilized a narrow constitutional exception (defense of the nation in crisis) to engage in acts of war without Congressional authorization. In fact, the Congress has only formally declared war 5 times in U.S. history while the president has authorized military force at least 200 times and, by some counts, over 300 times. This is the core war powers controversy the very thing that led to the passage of the War Powers Resolution in 1973 and the controversy the community voted for. The topic paper overrides that distinction and the topic committee would be well to heed the distinction. This distinction, if held, means that the wildest fears of tiny, unpredictable affs can only exist in a world in which Commander in Chief power is selected as the topic. That is the power presidents enjoy for running an army. By selecting presidential war power as the 2013-2014 topic, the community has ALREADY voted for the exclusion I propose. In essence, the community voted to debate the heart of presidential power. The key challenge (both constitutional and practical) for the American system of government is presidents have slowly chipped away at Constitutional limits on the

presidents war making power to the point that there is, effectively, no restriction on when and where the president can use force abroad. A significant body of literature exists to distinguish between presidential war power and commander in chief power and there is significant controversy related to the means for arresting the rampant expansion/usurpation of Congressional war declaration power by the presidency. From Seth Weinberger, The power to declare war, when properly understood, provides Congress with a powerful check on presidential power and a vital means of safeguarding domestic civil liberties. A declaration of war, as the Founders understood it, as the Constitution intends it, and as the executive, legislative, and judicial branches of government interpret it, is not about the command and direction of the armed forces of the United States. Whether the president can send American soldiers into battle does not depend on whether Congress has declared war or even given its specific authorization to the use of force. Nor does the ability of Congress to prevent or oversee the presidents use of force turn on the existence of a declaration of war. Rather, a declaration of war is about acknowledging the severity of the threat to the United States and recognizing that meeting the threat demands extraordinary measures above and beyond the foreign deployment of troops (Restoring the Balance, Santa Barbara, CA:
Praeger Press, 2009, 20). See also: Andrew Rudalevige, The New Imperial Presidency (Ann Arbor: University of Michigan Press, 2006); Ryan C. Hendrikson, The Clinton Wars: The Constitution, Congress, and War Powers (Nashville: Vanderbilt University Press, 2002).

Six other prerogatives were delegated to the President, but in substantially limited ways. The Commander-in-Chief power was limited by vesting the war powers and substantial control over the military in Congress. The treaty and appointments powers (including the appointment of ambassadors and
other public ministers) were made subject to the prior approval of the Senate, while the veto power was subject to congressional override. The pardoning power could be applied only to a relatively small percentage of criminal cases. Only the power to receive foreign ambassadors and ministers was left intact in the Executive, and no presidential power is greater than its royal counterpart. [Robert Reinstein, The Limits of Executive Power, 59 Am. U.L. Rev. 259, December 2009]

The traditional view that the commander-in-chief power is narrowly circumscribed is buttressed by the constitutional text, which specifies that the President "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." n54 The Framers saw standing armies under the control of a powerful executive as a threat
to democracy and thus anticipated that there would be no significant federal army. n55 Alexander Hamilton, no enemy of executive power, acknowledged that the President would exercise his commander-in-chief power only in "the direction of war when authorized or

the point of the commander-in-chief power traditionally was not to create executive war powers but to subordinate the military to civil authority. n57 [Jeremy Telman, Review Essay: The Foreign Affairs
begun." n56 Moreover, as Irons indicates in the one area of seventeenth-and eighteenth-century history where he is more thorough than Yoo, Power: Does the Constitution Matter?: A Review of Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution, 80 Temp. L. Rev. 245, Spring 2007]

This evidence hints at the core controversy, the very thing that animated Schlesinger to coin the Imperial Presidency thesis and the hundreds of books and articles that have been written since: When and where does the president have the power to deploy and use military force without Congressional authorization. Schlesingers very real concern was that Congress had willfully abdicated its role in providing a check on presidential use of force. As he wrote, Historically, Congress had preserved the rough balance of the Constitution because it retained three vital powers: the war-making power, the power of the purse, and the power of oversight and investigation (The Imperial Presidency, New York: First Mariner Books Edition, 2004, 11). The Founding Fathers made a deliberate effort to divide control of the war powers. They vested in Congress the authority to commence and authorize war, whether that war be declared or undeclared. At the same time, they vested in the Presidency the conduct both of ongoing foreign 3

relations and ongoing war as well as the right to respond to sudden attack when Congress was not in session (Schlesinger, 54). As Gerald Astor declared, the once fine line between the power to declare war and the authority to conduct that war has been smudged, if not erased (Presidents at War, Hoboken, NJ: Wiley, 2006, 16). The debate community should treat this as the core controversy because it is a controversy that matters. Since World War II, presidents have used military force without Congressional authorization in: Korea, Cuba, Vietnam, Iran, Lebanon, Syria, Grenada, Kuwait, Iraq, Panama, Somalia, Bosnia, the Sudan, Libya, and likely many more (El Salvador, Nicaragua, etc). The president now possesses the unfettered ability to use military force wherever he chooses for an almost indefinite period of time because Congress has abdicated any role in restricting presidential action. Voting for restrict presidential war power establishes a very narrow topic commander in chief blows the lid off that restriction. Those of us with gray in our hair may recall the restricting commander in chief power means anything from Congressional control over the presidents medical staff (Kansas) to Congressional control over media pools in wartime (a Bill Newnam Special) and everything in between. Modern versions of the parameters of that type of topic are elaborated in the topic paper when, for example, the authors isolate drones as a core controversy invoking the presidents legal authority to conduct the war on terror. This is nonsense for two reasons. First, the AUMF granted the president all the legal authority necessary and, second, the CONDUCT of the war is power reserved for the commander in chief and does not fall under the purview of Congressional war declaration power. There are no constitutional questions related to drone use aside from use on American citizens (without due process). This gross error in the topic paper reflects one of the downsides of using sources like the Idaho Statesman to comment on constitutional issues. The topic paper is correct, however, that Affs could restrict presidential actions to target U.S. citizens, but even that might not be topical if the topic is written as restrict/reduce presidential war power since this goes to a use issue and not a power issue (and, at best, reflects a violation of the Constitutional order and not an expansion of the Constitutional order one could argue that ending violations is not a restriction in presidential war power since the president never had the power to act in the first place). Detainees could also be excluded: Bush, in claiming the right to detain captives from Afghanistan and Iraq without their access to standard legal procedures, invoked his power as commander in chief (Astor, 18). The bottom line: The topic should either be restrict presidential war power (as was voted for) OR restrict commander in chief power not both. Blurring that distinction risks creating a gigantic mess under which either there is no effective limit to the topic or the community is forced into voting for a list topic. Advantages to debating war power without a list First, the community voted for war power. Debating who has the power to engage in war would be an accurate reflection of the communitys decision and the decision most respectful of the democratic process.

Second, as previously mentioned, war power gets to the heart of the controversy: Who gets to decide to use force abroad and when, while excluding the (mostly) non-controversial question of how that force gets used. The questions of who gets to use force and when are timeless and get to the heart of the American constitutional order and represent the significance of this topic. The second is temporary and leads to bad scholarship (like when Schlesinger inexplicably suggested the Imperial presidency may have come to an end in the 1990s). The question of which weapons get used and how is less important than do we use weapons at all and, some would say, reify the notion that war is good, etc (insert Weaponitis K, Jamie McKown eat your heart out). Third, this topic would enable Affs to debate preemptive/preventive war (so called Bush doctrine), military intervention for humanitarian motives, covert action, cyberwar, and many other types of advantage areas but from the perspective of who and under what conditions those things can be used/done. That is a much more interesting and vital conversation. When the Congress got together to figure out what to do about Nixon in the early 1970s, they didnt try to take away his toys. Such an effort would have been futile. Instead, they convened committees, held hearings, and came up with a plan for restricting the presidents power to engage in war abroad. The War Powers Resolution, fatally flawed by a self-inflicted wound, was the result. While it did not restore the balance, it did initiate a conversation that exists today, a conversation that has produced hundreds of books and thousands of articles. The debate community has an opportunity to engage in a similar dynamic. While Id never pretend that debate is analogous to Congress (I respect debate too much for that), I do suggest that there is an inherent, intrinsic value to a year long conversation about a core constitutional issue that directly or indirectly effects us all. Fourth, the critical ground is much, much better. As much as I love me some weaponitis, threat construction, security Ks, and the works, those debates are rather stale. Debating more fundamental issues related to one of the core features of the American system of government invokes the possibility of critical debates directly related to the topic area but move beyond a set of generics written when I was coaching the first time. Finally, voting to debate the core controversy means less annoying and pithy executive order CPs and other sorts of really awful generics. Im a huge fan of PICs and all sorts of fun CPs. Executive Order is not one of those. The literature is boring, the debates are droll, and no one in the existence of the planet gets juiced to judge or debate Executive Orders. Disdavantages to a List Topic: First, a list topic would mean the Topic Committee has defined the solution to the controversy, rather than the debaters. The literature is clear: the central components of the war power controversy are related to: What is the proper definition of war? Does Congress have the power to regulate presidential use of force? etc. A list topic risks eviscerating the most important definitional debates related to war power, displacing the key conversations related to democracy, war making, and the presidents role vis--vis the Congress, and replacing those conversations with micro level debates about the specifics of the War on Terror. The community did not vote for Restrict/End the War on Terror. It voted to debate the central issue of

presidential power and a list topic renders that choice irrelevant. Moreover, elaborating a list, in this instance, would be an anti-pedagogical move because it would deprive the students from engaging and parsing the conversation. I have hedged (marginally) with my description of the distinction between war power and commander in chief power because, while I feel quite strongly that I am correct in my reading, these are distinctions that could be productively played out in debates. Topicality is a crucially important pedagogical tool, especially in this instance, because it teaches students to contest, challenge, and critically reflect upon the way we define certain terms. List topics render that educational function null and void. That is a shame generally but would be tragic for this topic because the central mechanism that presidents use to extend and expand presidential war power is via definition. There is a unique pedagogical function to having students reengage the practice of topicality, especially on a topic in which there is such vast quantity of really, really bad scholarship related to the controversy (lexis: law reviews, war power w/10 commander in chief), literature that blurs distinctions between constitutional functions and gets repeated in places like the Idaho Statesman. Understanding how presidential war power gets defined, how war gets defined, and how those definitions play in public culture would serve a significant educational value to our students, would better equip them to think critically about those things in their private and public lives, and gets to the heart of why we all think debate matters. Enumerating a list of cases debaters get to debate eviscerates this core pedagogical function. Second, the War on Terror is the War on Communism: The language of the AUMF is near identical to the language authorizing military action in Vietnam. By focusing only on the AUMF (or the practices of the War on Terror), the topic risks repeating the mistakes of the WPR of 1973 and completely avoiding the timeless importance of the controversy. Its not about Iraq/Afghanistan its about an executive run amok and a Congress opting out of its constitutional obligation to regulate presidential war making. Voting for a list topic would succumb to my unbeatable Plan Meet Need argument (Lets go Bayside High!). Third, a list topic, in this instance, risks producing a VERY bad set of untenable affirmatives: War power is a term of art with a long, complicated, and evolutionary nature. It will be very difficult in the time available to produce a list that accurately reflects war power and is sustainable for an entire season. Instead, a list topic would reflect the desire to debate a certain set of Affs and not a controversy its very possible that the well intentioned topic committee could select a list of affs that ultimately do not have constitutional or statutory evidence to sustain the claim that they fall within the penumbra of war power, which would produce a sticky situation for topicality debates everywhere. If restrict drone strikes is in the list along with reduce/restrict war power, there is a very real possibility that the first part of the topic excludes the 2nd part. My previous description of drone strikes as Commander in Chief power, if sustainable, suggests that things like cyberwar may fall into the same category, placing Affs in the unenviable position of having to argue that the list trumps the first part of the resolution. Any list topic, instead of accurately reflecting community choice and pedagogical function, would reflect a hodgepodge of policy areas that reflect the desires of certain interests. Potential Resolutions:

The USFG should increase or enact statutory limitations on the presidents ability to use military force abroad. The USFG should increase or enact statutory limitations on presidential war power. The USFG should increase or enact statutory limitations on presidential war power stemming from Article I of the Constitution of the United States of America. The USFG should substantially increase restrictions on presidential war power. The USFG should significantly rebalance the distribution of war powers between the executive and legislative branches. The USFG should significantly curtail presidential usurpations of Congressional war power. The problem with this one is that is likely excludes debates related to the AUMF since the president did not usurp Congressional power to declare war. Perhaps something like this works in the right direction: The USFG should significantly curtail presidential usurpations of Congressional war power and/or significantly reduce congressionally authorized war power. The wording obviously needs refinement but it reflects my desire that the community select an area that focuses debate on Congressional abdication of their Constitutional war power and/or quasi- or extra-constitutional presidential assertions of the power to make war. [Note: all of these could be written in the passive voice. I take no position on passive over active and only note that USFG = automatic link to Thinking Like A State K.] I recognize that the topic committee has an extraordinarily unenviable task. I also recognize that there are many other issues for the committee to discuss and that there is a limited amount of time to consider all the relevant concerns. I would not want to be in the position to have to respond to the diversity of concerns and interests represented in the community. I wish the community luck in sorting through this complicated discussion and I hope that the topic produced embodies more than just a rigid affiliation to ground and thinks more broadly about the pedagogical function of the debate topic and the importance of the issue.