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The Power to Declare War — Who Speaks for the Constitution? Part 3

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The favorite justification for presidents unilaterally wandering off to war around the globe seems to be: everyone else does it. Proponents of executive war-making contend that ample precedents — two hundred or more troop deployments without congressional approval — exist for the president to act without a congressional declaration. Yet, this list chiefly consists of, as constitutional scholar Edward Corwin put it, “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.” These are dubious justifications for, say, ousting an existing government and occupying an entire nation. Anyway, et tu remains an unpersuasive reason to ignore the nation’s fundamental law; the fact that past chief executives acted lawlessly does not empower the current one to do likewise.

Successive presidents have been able to ignore the Constitution’s clear strictures only because successive congresses have allowed them to do so. A Democratically controlled Congress let Harry Truman treat a major land war in Asia as a “police action.” From Vietnam to Iraq, Republican congressmen steadfastly defended the right of Republican presidents to levy war on foreign nations. When George Bush introduced troops into Somalia, Republican congressmen opposed invoking the War Powers Resolution which, they complained, unconstitutionally limited the chief executive’s power. Then a Democrat was elected president: Republicans suddenly reread the Constitution. In late 1993, Senate Republican Leader Robert Dole proposed legislation requiring congressional approval for American deployments in Bosnia or Haiti. Congress should be heard “before the body bags are counted, before the caskets come home,” he argued.

Democratic legislators, in contrast, spent years attempting to constrain Republican presidents. But when some Republicans questioned Bill Clinton’s authority in Somalia early in his presidency, Senate Democrats, led by then-majority leader George Mitchell, rallied to the president’s defense. And many of the same Democrats backed President Clinton on his claimed authority to occupy Haiti. Indeed, numerous past Democratic skeptics of military adventurism encouraged the president to unilaterally invade the island nation. Particularly striking was the about-face of many members of the Black Caucus, such as Gulf War opponents Nita Lowey, Major Owens, and Maxine Waters.

Many other legislators simply prefer to avoid taking any responsibility on the usually volatile issue of military intervention. Complained Rep. Lee Hamilton, chairman of the House Foreign Affairs Committee, “Congress basically wants to let the president make the decision” to deploy troops overseas. Then legislators can carp if the adventure goes awry or applaud if it succeeds.

For the last four decades, the war power has been a political football. Former Democratic congressman Bill Gray was right last year when he complained that the partisan pirouettes on executive warmaking are “kind of confusing and perplexing.” When Republicans hold the presidency, they assert that the executive can do as he pleases; Democratic legislators eloquently appeal to the Constitution.

Now, a Democratic president believes it is more important to win a vote in the U.N. than in Congress. GOP legislators warn of the risks of an overbearing executive, while many Democrats stand silent.

In short, both sides deserve censure. As Sen. Joseph Biden, an opponent of the Gulf War but enthusiastic proponent of intervention in Bosnia, has cracked, “The Republicans have found God.” But the Democrats have proved to be no more consistent, and at least it is better to have found God, as have the Republicans, than whatever partisan idol the Democrats are now worshipping.

Partisan wrangling aside, it is time for all sides to reexamine their commitment to the Constitution. At the very least, presidents should take their oath of allegiance to the Constitution seriously. And legislators should want to protect their own institutional authority. If all else fails, the stakes are so high that the American people should consider an amendment to the Constitution expressly prohibiting the president from going to war without congressional approval. As James Madison warned, “War is, in fact, the true source of executive aggrandizement.” But much more is at stake than merely a theoretical dispute between the different branches of the federal government.

The point is, the Founders vested the power to declare in Congress because they feared presidents would do precisely what they are doing today — regularly taking the nation into overseas conflicts that have only the most tangential interest to the security of the United States. The result has been hundreds of thousands of soldiers killed, hundreds of billions of dollars squandered, numerous civil liberties lost, and a host of government bureaucracies spawned. In short, even if the Constitution was not clear, the issue of war and peace is too important to leave to the president. “International support is fine,” observed Senate Majority Leader Robert Dole in 1993, “but it is no substitute for the support of Congress and the American people.”

The Constitution is clear, however. Congress needs to be willing, even eager, to say no when presidents propose overseas military adventures. And Congress needs to sanction presidents who exceed their authority — cutting White House budgets, restricting executive authority, and even impeachment, if necessary.

And presidents need to respect the law. The latter might seem to be the impossible dream, but it was not that long ago when a president acknowledged the limits of his authority. If anyone could have legitimately staked a claim to being an aggressive commander-in-chief, it was former Army general and military hero Dwight Eisenhower. Yet in January 1956, he stated: “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.” A few months later, he explained: “I am not going to order any troops into anything that can be interpreted as war, until Congress directs it.”

If President Clinton and his successors want to risk the lives of young Americans for sundry purposes — whether to restore a demagogue to power in the name of Haitian democracy or something else — let them follow Eisenhower’s lead and go to Congress for permission. Then we can have the serious national debate intended by the nation’s Founders.

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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)