Washington Monthly columnist and blogger Kevin Drum reminds us that Article I, Section 8 of the Constitution grants Congress the power to authorize war. He then notes that no Congress has done so in 60 years. Both Iraq “wars”, Kosovo … all major military actions taken on the “word” of the president, not Congress. Drum suggests this makes a mockery of the Constitution.
In our 230-year history, Congress has declared five wars: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Beginning with Korea, American presidents have used their position as commander-in-chief to fight “wars” that are not declared by Congress.
When those executive actions take place, they set the stage for Congress to reiterate its authority in determining how and when troops are deployed. The 1973 War Powers Resolution (Public Law 93-148, Title 50, United States Code, Sections 1541-1548) seeks to “… insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities…” President Nixon, not surprisingly but unsuccessfully, vetoed the resolution.
The War Powers Resolution directs the president to “… consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances …” Note — this resolution authorizes presidential action when hostilities are imminent. This was not the case for Iraq I or Iraq II, nor was it for Kosovo.
Back to Basics
According to Thomas E. Woods, Jr., assistant professor of history at Suffolk Community College-SUNY and author of Politically Incorrect Guide to American History:
The Framers of the Constitution believed that history amply testified to the executive’s penchant for war. As James Madison wrote to Thomas Jefferson, “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”
Woods quotes President Lincoln:
Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure… Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, “I see no probability of the British invading us” but he will say to you “be silent; I see it, if you don’t.”
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.
As recently as 10 years ago, during the Clinton Administration, Republicans and Democrats came down on opposite sides of this issue. Have the parties reversed themselves, or was President Lincoln an anomaly in the Republican Party?
“Mr. Chairman, I think it is a fact of modern history that declarations of war are gone. I think they are anachronistic. I do not think they will happen. Clearly the Constitution assigns the declarations of war function to Congress and only to Congress. But declaring war has consequences in a technologically advanced world that nobody wants to face…. We have the untrammeled authority to unappropriate, disappropriate funds. That is the key; and that makes us the king of the hill.”
Representative Henry Hyde (R-IL)(Congressional Record, June 7, 1995)
“The Constitution is explicit. The founders took great pains to debate one issue: No one person could ever place America and our troops at war…. I am going to support the Dornan amendment [to defund the Bosnian occupation] … and I will probably vote for every one of these nonbinding, after-the-fact, feel-good, kiss-your-sister types of votes here tonight. But it is not good policy, and the Congress of the United States should govern and the American people should govern, and right now, ladies and gentlemen, the American people do not govern anymore; governance comes from the White House.”
Representative James Traficant (D-OH)(Congressional Record, December 13, 1995)
The SCOTUS blog suggests that the Senate planned to ask Supreme Court nominee Harriet Miers about war powers – not “inside the White House decisionmaking,” per administration spin. A letter from Senate Judiciary Chair Arlen Specter (R-PA) confirms that presidential war powers was on the mind of the chair, if not the entire committee.
Also last month, Andrew J. Bacevich, professor of international relations at Boston University and author of The New American Militarism: How Americans Are Seduced by War, asks in the New York Times: “In a post-Sept. 11 world, what limits, if any, exist on the president’s authority to use force?”
On Capitol Hill, the response to this sweeping assertion of presidential authority fell somewhere between somnolent and supine. With the administration gearing up to invade Iraq, the Congress roused itself just long enough to instruct the president in October 2002 to “defend the national security of the United States against the continuing threat posed by Iraq.”
As Lyndon Johnson did with the Tonkin Gulf Resolution of 1964, Bush interpreted this as a mandate to wage war however he saw fit, an interpretation that Rice has now reaffirmed.
Yet the brief history of America’s global war on terrorism demonstrates the folly of allowing the executive branch a free hand in determining the scope and conduct of that conflict. Deference to Bush’s fixation with Saddam Hussein has cost the United States dearly. To expand that misadventure will only drive those costs higher. Furthermore, an attack on either Syria or Iran, launched merely on the president’s say-so, would produce a profound reaction, in all likelihood surpassing that induced by Richard Nixon’s 1970 incursion into Cambodia.
Like Drum, whose essay prompted this examination of the War Powers Resolution, Bacevich believes that the first responsiblity of Congress is to “exercise independent judgment,” not to “support the commander-in-chief” blindly.
Drum’s closing paragraph seems straightforward and straight-shooting:
If the president wants to go to war, he should get a declaration of war. Not an “authorization of force” six months before the fact, but a declaration of war a few days before the invasion. Not only is that what the constitution requires, but it also means that members of Congress can no longer play games about what their vote really meant. After all, a declaration of war can hardly be misinterpreted.
This article first appeared at uspolitics.about.com
Edited: nd – who forgot to close the font tag (dn)