Unilateral War Making by the Executive (Updated)
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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. – Article II, Section 2
It’s not a good feeling agreeing with Dennis Kucinich. Finding myself on the same side of an issue as Kucinich makes me seriously reconsider my opinion. But as they say, even a bind, deaf, paralyzed, rabies-afflicted squirrel finds a nut every now and again.
It’s less distressing to disagree with Charles Krauthammer. He’s usually spot on, but he tends to go off the rails when it comes to foreign policy. Not always, mind you, but in Krauthammer you can see the legitimate difference between neoconservatism and traditional conservatism. Last night he had this to say about the War Powers Act and President Obama’s
war hostilities kinetic military action in Libya:
KRAUTHAMMER: I understand why Congress wants to retain prerogatives, as does the president. I’m not surprised that Durbin would act this way. I am surprised that so many Republicans are jumping on the war powers resolution. They will regret it. If you have a Republican in office, you have isolationists Democrats trying to restrain his exercise of his powers under constitution and the Republicans aren’t going to like it.
I would not truck in war powers resolution. I have also think the administration’s defense of what it is doing is extremely week and misguided. Obama’s answer essentially is well, the resolution is out there. But it’s not relevant because it isn’t really a war, which is absurd.
BAIER: We’re not in hostilities.
KRAUTHAMMER: Right. What he should say I, like my other predecessor, I do not recognize the legality of this act and its authority over the presidency. That’s where he should make his stand.
BAIER: When he was Senator Obama he spoke the opposite.
KRAUTHAMMER: And as a president he is implicitly supporting the resolution saying it doesn’t apply here. It implies if it were a real war, as he pretends it’s not. I have to comply. No president ought to do that.
I agree with him with regards to Obama’s duplicity. I also share his skepticism about the War Powers Act. But he’s wrong about the rest.
Above I quoted the relevant portions of the Constitution as it pertains to declaring and making war. Article I of the Constitution clearly places the power of declaring war in Congress’s hands. Article II places the war-making (or waging) authority in the hands of the President.
As always, let’s look to a Framer’s argument in trying to better understand what they were trying to do. Here is Alexander Hamilton writing in Federalist 69:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to theraising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. (Emphasis mine)
I apologize because I don’t have Glenn Beck’s “1776 speak to modern English” translator handy, so the above may have been incomprehensible to you mere mortals. Long story short, Hamilton argues that the Constitution does not give the Executive plenary power to declare war. If any of the Framers would have favored such singular authority, it would have been Hamilton. As it happened, only a single delegate from South Carolina argued during the constitutional convention in favor of enabling the President to declare war. (See Louis Fisher’s testimony for further documentation.) The rest of the delegates argued against resting such powers in the Executive, one of the few times that delegates were so uniformly united.
Now, some of the delegates wanted to go even further and give Congress power over the waging of war. This is where Hamilton, Madison and others argued for this division of duties. The Executive, being a single-headed creature, could act more swiftly and decisively, and so that is why the President was given the title of “Commander in Chief” and the power to wage war as he desired. It’s this singular nature of the office that also allows the President to act unilaterally when America is immediately threatened. No one would rationally argue that the President cannot order immediate air strikes or engage in some military action without Congressional authority when America is threatened.
All that being said, I would agree that the War Powers Act is at best a bad piece of legislation and at worst possibly unconstitutional. Louis Fisher explains why it’s a poor piece of legislation at the link above and also in his book, Presidential War Powers. Though Fisher is someone who believes that the President has usurped Congress’s authority vis a vis war powers, and who also agrees with the sentiment of the War Powers Act, he finds the wording to be a jumbled mess with contradictory messages. The War Powers Act needs to be seriously re-worked in order to more clearly delineate Congressional and Presidential war powers.
Even if the means by which Congress exercises its authority is seriously flawed, Congress is right in trying to assert itself. It is stretching logic to the breaking point to state that the actions in Libya are not tantamount to war because there are no American troops on the ground, or because some other entity is technically leading the military excursion. America cannot engage in a long-standing military conflict without Congressional approval. It is unconstitutional, and frankly tyrannical. Congress must do whatever it can to step in and either assent to the conflict (another topic entirely), or the President must withdraw all forces absent any such approval.
Update: I posted this before I saw John Yoo’s post in the Corner linking to his WSJ editorial. Only the first two paragraphs of the on-line version of his editorial are available for non-subscribers, but fortunately for me I still get (via the office) the old fashioned paper copy. If I may summarize Yoo’s argument without being sued by the Journal, he criticizes Speaker Boehner for citing Article II (the laws must be faithfully executed) in urging President Obama to uphold the War Powers Act. Yoo rebuts Boehner by referring to John Marshall’s declaration in Marbury v. Madison that the Constitution is the supreme law of the land, and that any law contrary to the Constitution is void. There are a couple of problems with this argument.
First of all, as I conceded above, the War Powers Act is a problematic bit of legislation. I said that it is perhaps unconstitutional, though I’m not convinced one way or the other. That being the case, it is the law of the land, and has been upheld in way or the other by all three branches of the government. We may not all like it – and I don’t think anyone really thinks it’s a perfect bit of legislation – but we simply can’t act like it doesn’t exist. If someone wants to mount a Court battle to get it overthrown, more power to them. But so far the Court has not overturned the War Powers Act, and both of the other two branches have given tacit consent to it for nearly four decades.
Secondly, Yoo doesn’t address the larger issue; in fact he completely avoids it. Can the President of the United States declare war or engage in a military conflict (other than an emergency defensive action) without Congressional approval? The answer, according the US Constitution, is clearly no.
Yoo makes much hay about Congressional leadership and President Obama making about-faces on the War Powers Act to suit their needs. Political hypocrisy is nothing new, and I’ll concede that Yoo makes a decent rhetorical point here. But on the larger issue, Yoo is completely off the mark.