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Declare War before Waging War, Part 2

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Naturally, presidents and their aides have been creative in coming up with reasons to short-circuit the Constitution’s clear requirement. Those who thus torture the Constitution include many conservatives who normally proclaim the importance of “original intent. ” Except when they want to empower politicians to do what they want.

One favorite claim is that the president has some unspecified, ill-defined “foreign-affairs power ” that reduces the explicit war-powers clause to a nullity. That might be a good argument if the Constitution didn’t speak to the issue, but the Founders explicitly circumscribed the president’s foreign-policy authority by vesting countervailing power in Congress.

Legislators are to declare war; they also raise the military, organize the militia, and implement the rules of war (such as authorizing letters of marque and reprisal and defining and punishing piracy). Congress is also to regulate foreign commerce, while the Senate must consent to treaties and approve ambassadors.

Any honest reading of these provisions suggests that whatever foreign-policy powers are possessed by the president, they are not superior to those of Congress. Explains Jack Rakove, a Stanford University historian, the constitutional provisions

that laid the strongest foundation for a major executive role in foreign policy are more safely explained as a cautious reaction against the defects of exclusive senatorial control of foreign relations than as a bold attempt to convert the noble office of a republican presidency into a vigorous national leader in world affairs.

Not surprisingly, there is one truly silly Supreme Court decision relating to presidential authority, United States v. Curtiss-Wright Exporting Corp., which suggested that the executive is the “sole organ ” for conducting international affairs. However, courts today rely with some reluctance on the rambling majority opinion, filled with nonbinding dicta (verbiage unconnected with the core ruling).

There is good reason for such caution, since Justice Sutherland’s peculiar views of expansive executive power are not widely shared, other than by presidents themselves, and, in any case, cannot override the Constitution itself. Rakove writes,

The expansive notions of executive power that Hamilton and his allies espoused after 1789 — smacking as they did of monarchical prerogatives — would probably have doomed the Constitution to rejection had they been advanced in 1787–1788 and were for that very reason illegitimate and incorrect.

Since there is no constitutional warrant for the pretensions of those who would supersede Congress’s power to declare war, are there any legitimate exceptions to congressional war power? Some analysts would have Americans believe that in the modern world it is simply impractical to involve legislators in foreign policymaking. But the point is not that 535 legislators should be expected to manage the ensuing war — that’s why the Constitution names the president commander in chief. But Congress must decide whether or not the president will have a war to run.

Legislators can even use a conditional declaration of war to grant the president some discretion and avoid alerting opponents to the beginning of hostilities. In fact, Congress has four times passed conditional declarations of war, empowering the president to use force if certain goals were not met. Three times the disputes were peacefully resolved; in the fourth, the president took America into war after Spain refused Congress’s demand for a military withdrawal from Cuba. Thus, Congress could have approved a conditional declaration of war demanding an Iraqi withdrawal from Kuwait, Serbian compliance in Kosovo, or Afghan turnover of Osama bin Laden. It could now pass one against Iraq demanding the resignation of Saddam Hussein and introduction of UN inspectors.

Almost everyone agrees that presidents may unilaterally use the military for “defensive ” purposes. “Defensive ” means defensive, however. Constitutional Convention delegate Roger Sherman of Connecticut explained that “the executive should be able to repel and not to commence war. ”

“Repel ” does not mean invading Grenada, Haiti, and Panama. Attacking Iraq, the Bosnian Serbs, and Yugoslavia. Or overthrowing Saddam Hussein. Not that presidential imperialists worry about the standard meaning of words. In 1990 Robert Tucker of the Center for National Security Law argued in favor of President Bush’s authority to join the Iraq-Kuwait war:

When the president seeks to respond defensively against Saddam Hussein’s aggressive war (a crime against all nations under international law), he no more becomes the aggressor than did Franklin D. Roosevelt through the Normandy landing.

Apparently Tucker forgot that President Roosevelt secured a declaration of war against Germany; only then did he organize an American expeditionary force. In all of these instances the case for requiring congressional approval remains compelling.

In an uncertain world, presidents also like to argue that they must be able to respond instantaneously to unpredictable events. Fair enough, but there is almost always time to go to Congress before going to war. The regimes ousted in Grenada, Haiti, and Panama had been in power for years; President Bush took months to build up U.S. forces before attacking Iraq; the Balkans civil war raged for years before America intervened. Even in the case of the September 11 attacks, Congress had ample time to act.

The vision of the Founders

The Founders understood that only rarely would the nation’s security preclude involving the legislature in the decision to go to war. They refused even to give the president authority to unilaterally retaliate against a nation that committed an act of war against the United States (in contrast to undertaking war). Secretary of State Thomas Jefferson explained:

The making of a reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought to precede; and when reprisal follows, it is considered an act of war, and never failed to produce it in the case of a nation able to make war; besides, if the case were important and ripe for that step, Congress must be called upon to take it; the right of reprisal being expressly lodged with them by the Constitution, and not with the executive.

This narrow view of presidential authority was also held by Alexander Hamilton. In Federalist No. 69 he wrote that the president would possess “nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral. ” In 1798 he advised John Adams’s secretary of war, James McHenry, that the president can at most “repel force by force…. Any thing beyond this must fall under the idea of reprisals and requires the sanction of that Department which is to declare or make war, ” namely Congress.

But presidents’ favorite excuse for claiming the right to wander around the world unilaterally bombing other nations is simple: everyone else does it. Those lawyers favored by the first President Bush point to 200-plus military deployments that lacked congressional approval. Apparently the fact that other presidents have violated the Constitution’s explicit provisions in the past reduces the nation’s fundamental law to a nullity in the present.

However, the precedent is thin. Legal scholar Edward Corwin notes that those examples are largely “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like. ”

Congressional responsibility

Whatever their relevance, they are inadequate precedent for launching a real war against a real country halfway around the globe. In any case, the Constitution does not disappear because past presidents have ignored it and past Congresses have let them get away with doing so. Prior executive lawlessness actually increases the case for strictly enforcing the war-powers provision today.

Since presidential misbehavior seems to be a constant, the Constitution requires congressional enforcement. Yet Republicans and Democrats routinely support the right of their own partisans to engage in war at will. Then, when a member of the opposing party is elected president, they instantly and shamelessly switch sides.

In 1993 Senate Republican Leader Robert Dole (R-Kans.) proposed legislation requiring congressional approval for military deployments in Bosnia and Haiti. He explained that Congress should be heard “before the body bags are counted, before the caskets come home. ”

Members of neither party are likely to adopt that position, unfortunately, because they are political cowards. Noted Rep. Lee Hamilton (D-Ind.), when he was chairman of the House Foreign Affairs Committee, “Congress basically wants to let the president make the decision. ” Then members can applaud if the war turns out well, but complain if it goes badly.

If legislators are serious about the oath that they take to uphold the Constitution, they need to drop the dizzying partisan pirouettes and reaffirm their commitment to the Constitution. If nothing else, legislators should protect their own institutional authority from constant presidential abuse. James Madison warned that “war is, in fact, the true source of executive aggrandizement. ”

Still, the most important reason to respect the Constitution is to better protect the liberties of the American people. The nation’s Founders correctly feared that presidents would do precisely what they now do regularly — intervene in overseas conflicts with at most a tangential relevance to American security.

At the same time, hundreds of thousands of U.S. soldiers have died, hundreds of billions of dollars have been wasted, fundamental civil liberties have been violated, and endless government powers have been expanded. No wonder the Constitution requires a vote by Congress before America goes to war.

Lots of presidents have claimed the right to unilaterally take America into war. Ironically, one of the best qualified to do so, Dwight Eisenhower, had too much respect for the Constitution to do it. In January 1956 he explained, “When it comes to the matter of war, there is only one place that I would go, and that is to the Congress of the United States. ” He later observed, “I am not going to order any troops into anything that can be interpreted as war, until Congress directs it. ”

His successors should demonstrate similar fidelity to the Constitution. Whatever the target and whatever the reason, American presidents should not risk the lives of young Americans in foreign adventures without gaining congressional consent. The decision of war and peace is far too important to leave to one man, however honest, bright, or popular.

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    Doug Bandow is vice president of policy at Citizen Outreach, the Cobden Fellow in International Economics at the Institute for Policy Innovation, a senior fellow at the Cato Institute, and serves as adjunct scholar for The Future of Freedom Foundation. He is a former special assistant to President Reagan; he is also a graduate of Stanford Law School and a member of the California and D.C. bars. BOOKS BY DOUG BANDOW: Leviathan Unchained: Washington’s Bipartisan Big Government Consensus (forthcoming) Tripwire : Korea and U.S. Foreign Policy in a Changed World (1996) Perpetuating Poverty : The World Bank, the Imf, and the Developing World (1994) The Politics of Envy : Statism As Theology (1994) The U.S.-South Korean Alliance : Time for a Change (1992) The Politics of Plunder : Misgovernment in Washington (1990) Beyond Good Intentions : A Biblical View of Politics (1988)