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The Power to Declare War — Who Speaks for the Constitution? Part 2

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What conceivable justification is there for ignoring the Constitution’s straightforward requirement regarding the power to declare war? Advocates of expansive executive war power — oddly enough, including some conservatives who claim to believe in a jurisprudence of “original intent” — have come up with a number of reasons to give the president virtually unrestrained authority to act.

One is that the president has some undefined “foreign-affairs power” that apparently overrides the war-powers provision.

Yet the Constitution carefully circumscribes the president’s authority in foreign affairs in a number of ways — the Senate must approve treaties and ambassadors, for instance. Both the House and Senate regulate commerce with other countries; establish the military; organize the militia; make decisions covering the use of these forces; and oversee the rules of war (by authorizing letters of marquis and reprisal, defining and punishing piracy, and so forth). All told, writes Jack Rakove, historian and director of the American studies program at Stanford University, 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.

One Supreme Court decision, United States v. Curtiss-Wright Exporting Corp. , propagates the notion that the presidency is the “sole organ” for the conduct of international affairs, but modern courts treat the majority’s rambling opinion, filled with nonbinding dicta, with great caution. And for good reason: Justice Sutherland’s peculiarly expansive notions of executive power were not shared by his colleagues and cannot supersede the text of the Constitution. As Rakove points out:

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.

Even more so, had the Constitution’s advocates advanced the far greater pretensions espoused by Justice Sutherland and today’s chief executives, the proposed new government would have been rejected with little debate.

If there is no countervailing presidential power, are there exceptions to the congressional war power? For instance, presidents argue that they must be able to use the military for “defensive” purposes. True enough — in fact, no one would disagree. But defensive means defensive. At the constitutional convention, Roger Sherman of Connecticut stated that “the executive should be able to repel and not to commence war.”

There was nothing defensive about overthrowing ruling regimes in Panama and Haiti, for instance. Nor was there anything defensive about joining the conflict between Kuwait and Iraq, as contended by Robert Tucker of the Center for National Security Law. Back in 1990, he argued:

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.

What Tucker missed, of course, was that President Roosevelt did not send off an American expeditionary force until securing a declaration of war against Germany from Congress. The Founders’ fundamental objective remains no less valid today: to prevent the president — any president — from getting America into war without congressional consent. They did not care whether his action would start a new war or merely join an existing one; their goal was to prevent America’s promiscuous participation in irrelevant overseas conflicts.

Similar is the contention that presidents must be able to instantly respond to foreign crises, most of which do not even involve direct attacks on the U.S. In practice,instantaneous intervention overseas — perhaps to save American lives or prevent irreversible damage to serious U.S. interests — is rarely even arguably necessary. There was obviously no rush to occupy Haiti to restore Jean-Bertrand Aristide to power after three years in exile. Nothing prevented President Bush from requesting a declaration of war against Panama before sending in the troops even if there was a compelling case to invade. Nor could he argue that the exigencies of time prevented a congressional vote on his plans to attack Iraq.

In fact, so desirous were the Founders in circumscribing the authority of the president that they did not even intend to grant him power to unilaterally undertake reprisals against other nations for committing acts of war (in contrast to commencing war) against the U.S. While serving as secretary of state, Thomas Jefferson wrote:

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.

Alexander Hamilton, too, opposed giving the executive other than the most narrow authority to undertake military action. In Federalist Paper 69 he stated that the president would possess “nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral.” This was no mere propaganda stance designed to win approval of the Constitution. To the contrary, in 1798 he advised James McHenry, secretary of war under John Adams, that the president as commander-in-chief 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 [i.e., the Congress] which is to declare or make war.” Notably, Hamilton makes no distinction between the terms “declare” and “make.”

Another argument is that it is impractical to involve the legislative branch in foreign affairs. Congressional war votes in 1812, 1846, 1898, 1917, 1941, 1964, and 1991 prove the contrary, however. While 535 legislators cannot direct the course of an attack on Britain, Mexico, Spain, Germany, Vietnam, Iraq, Haiti, or anywhere else, that is not their job. That is why the Constitution has made the president commander-in-chief. What Congress is to do is decide whether or not the nation should go to war.

Such congressional debates need not even tip off adversaries as to the imminence of military action. Congress has four times approved conditional declarations of war, authorizing the president to use force if certain objectives were not achieved. In three instances, the executive branch peacefully resolved the disputes; in the fourth case war ensued, after Spain refused Congress’ demand that it withdraw its forces from Cuba. Following these precedents, the president could ask Congress to allow the use of force against another nation — Haiti, Serbia, North Korea, or whatever — if certain conditions were not met after a certain amount of time. Legislators could then answer yes or no.

Part 1 | Part 2 | Part 3

BOOKS BY DOUG BANDOW

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)

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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)