Unilateral War Making by the Executive (Updated)

Friday, June 17, AD 2011

The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; – Article I, Section 8

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.

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14 Responses to Unilateral War Making by the Executive (Updated)

  • Obama criticized Bush for the wars in Iraq and Afghanistan, then he does worse in Libya, and uses the Orwellian phrase, “Kinetic Military Action.” But the main stream media and the proudly liberal won’t see this hypocrisy, or seeing it, won’t acknowledge it.

    If the news media acts this way now so far from the 2012 election, then what will happen as the election draws nigh? Is there any hope of defeating this godless man of murder and depravity?

  • I have no doubt that the War Powers Act is an unconstitional infringement on the powers of the President as Commander in Chief. I also have no doubt that, absent an emergency, any President who goes to war without Congressional authorization is a fool.

  • It is only an issue if the president has an (R) behind his name.

  • I see this as two issues:

    1. What does the Constitution mean? Difficult question.

    2. What is the de facto law? Easy. The President can ignore the War Powers Act and do whatever he wants outside the US for as long as Congress will pay for it. That’s always been the de facto law.

  • The War Powers Resolution seems to be another attempt by the legislature to codify Retroactive Ratification. Alexander Linn suggests that it is a “realigning” of the war powers, that “in passing the Resolution, Congress sought to set parameters on the Executive’s ability to commit military forces to combat. The Resolution codified limitations on the ability of the executive branch to initiate unilaterally or to engage in military hostilities.” The form of the resolution itself suggests that Congress’ efforts were expended more to “define” than “realign.” (Alexander C. Linn, International Security and the War Powers Resolution, 8 Wm. & Mary Bill of Rts. J. 725 (2000).

    The Resolution affirms that the President, acting as Commander in Chief, my direct military action after a Declaration of War or with specific Statutory Authorization. Since both of these circumstances are spelled out in the Constitution of 1787, they cannot be a “grant” of such authority to the President. He already has such authorization. Only with the addition of a “national emergency created by an attack upon US interests” did the legislature stray beyond the established grounds of the original constitution.

    Congress asserted a check on this last point in that the President was thereafter required to “consult” with Congress “in every possible instance” before deploying troops and regularly through the deployment. Loose construction of the Resolution aside, this last point seeks to capture the breadth of presidential inroads on legislative powers. There is a close corollary to Retroactive Ratification in the consulting requirement, but the up-front determination of when a “national emergency created by an attack upon US interests” occurs. Critically, the limitations proscribe no particular type of presidential war power exercise, not even those exercised against Americans at home such as were illustrated in Korematsu, Kimball Laundry, and Youngstown. Linn suggests that “[n]otwithstanding that the President’s modern control over war conflicts with the Framer’s intent, the problem is not the increase in executive power. There are compelling reasons the Executive to hold a quantum of war power that contradicts the Framers’ intent.” Linn seems to suggest that the Constitution itself is not the benchmark of presidential power. This is to say that our constitutional jurisprudence, however muddled, holds the keys to limiting the powers of a runaway executive.

    Even Hamilton would have cringed at that notion.

    The War Powers Resolution places on the Executive the burden only that he must report what he has done to Congress within 48 hours and the need for deployment, the constitutional and legislative authority, the scope, and the duration of hostilities thereafter. More significantly, the President receives a 60 day “grace period” during which he can engage in military action without authorization and an additional 30 days if there is an “unavoidable military necessity.” If Congress fails to order the executive to pull back, their acquiescence can go on indefinitely.
    It does not appear that the War Powers Resolution places any new burdens on the President since our written constitution and our constitutional jurisprudence already placed similar limits on the executive. Perhaps the Resolution is little more than a touchstone for public discourse. If so, it serves more to subtly illustrate the underlying constitutional principles that the Congress is, by the text of the Constitution, the preeminent institution of government and that, however much presidential powers may lay claim to law making powers, he is still bound by an older order.

  • If the War Powers Act is unconstitutional it is because it delegates too much power to the President to initiate hostilities, not because it impinges on his powers as commander in chief.

    The practical reality, of course, it much as RR stated.

  • Congress only has the power of the purse over the military. The President is clearly commander-in-chief under the Constitution of the military. Congress has no more power to instruct the President as to what may be done with the military than the President has power to compel Congress to appropriate funds for the military. Congress of course, whenever it wishes, has the power to deny funding for specific military operations. Since this is difficult to do politically, we have flapdoodle like the War Powers Act, which is a simple attempt by members of Congress to avoid the heavy lifting of denying funds if they wish to terminate a military operation.

  • The item that is missing from most every discussion is just what is a “State of War”. A Declaration of War creates a State of War. There has always been lawful armed conflict existing outside a formal State of War. The War Powers Act attempts to deal with involvement in armed conflict outside of a formal State of War.

    1. A Sate of War can only exist between two independent countries. Declaring war is recognizing the other party as an independent country. The big example from American History is the Civil War. The North never declared war on the South, doing so would have recognized the legitimacy of the southern states succession. Instead Congress declared the southern states were engaged in an insurgency against the proper government.

    2. A State of War is between two countries as a whole every citizen of one is an enemy of the every citizen of the other. Take Libya, whatever the goals are we are supporting a faction in civil war we are not saying that evey Libyan is an enemy of every American.

    3. A State of War can only be formally ended by a peace treaty. It is somtes commented that a formal declarion of war is not so much an authorization to fight but a refusal to talk and let the issue be settled by arms.

    A declarations of war is clearly inappropriate for intervening in acivil war such as Libya. Given the nature of a State of War, modern nuclear weapons and the wording of the UN Charter formal declarations of war are pretty much obsolete.

    The clear meaning of the Constitution is that only Congress has the ability to declare a formal State of War.

    Lawful conflict outside of a State of War falls into a rather fuzzy boundary between Legislative and Executive powers. The War Powers act could only work with good faith cooperation between Congress and the President which we don’t have. The problem now is that th President did not seek that coopeation.

  • I hadn’t thought of that Hank, but wouldn’t it be better if we used a more literal definition of “state of war” as this would probably be more true to the founders’ meaning; keep in mind this is a term they don’t actually use. I can see your point though, about undeclared military excursions throughout early US history.

  • Ike

    Thank you. The definition I gave has been customary international law for several centuries, it can’t be ignored and is probably what was meant by the framers since almost all wars then were declared. I think there is in practice a domestic law “state of war” which applies in cases where a formal declaration is not appropriate. The War on Terror and Iraq War resolutions created this for their respective actions, but there is no resolution for Libya. Thus a problem.

  • Once hostilities commence, Congress has limited authority other than the purse, as Don said. It’s before hostilities commence where Congressional power is at its height, and that’s what I am concerned with here.

    Hank raises a good point, worthy of its own post. Modern warfare is certainly something different than what existed at the time of the Framing. So where do we draw the line? To me it boils down to this question: are we comfortable with the Executive taking unilateral action of this nature? Occasional air strikes are one thing, but in this specific situation where America has pledged military support to a long-term (not just a few strikes) military engagement, even if it’s another country’s civil war, Congress ought to approve before we proceed (or continue). No, this is not a declared war in the traditional sense, but it crosses the line into an area where it is within Congress’s legitimate Constitutional authority to intervene.

  • “Congress only has the power of the purse over the military.”

    You need to reread the constitution.

    Being the commander in chief doesn’t mean you have plenary authority to initiate hostilities (the commander in chief of Canada, for example, is Elizabeth II). If you look at the original understanding of the constitution it is quite clear on this point. The President has the authority to repel invasion, but to actually initiate hostilities he needs congressional approval. In practice it hasn’t been that way for a long time, but the same could be said of many other constitutional provisions.

  • “In practice it hasn’t been that way for a long time,”

    That will do for the understatement of the week! Whatever the initial intention of the Framers was, from the beginning the Constitutional provision granting to Congress the power to declare war has not acted as a restriction on the power of the President to use the military, as amply demonstrated by Presidential use of the military during the first 20 years after the drafting of the Constitution to wage war against Indian tribes, google battle of Fallen Timbers, foreign powers, France and the Barbary Pirates, and internal insurrections, the Whiskey Rebellion. If any of the Framers said a peep against any of this, all done without a formal declaration of war, I am unaware of it. A wise president will make certain that Congress supports such efforts, but it is clearly not required under the Constitution that he obtain such approval from the Congress, let alone seek a declaration of war, before using the military to engage in a war.

  • This is why I said it’s better seen as 2 separate issues, the academic question of constitutionality and the reality of the de facto law.

    On most other issues, one can sue to enforce the Constitution so the academic and the practical are one and the same. But how to conduct foreign affairs is a political question which the courts do not entertain on the merits. It extends, not only to military matters, but diplomatic as well (see, Goldwater v. Carter). Courts have heard and dismissed these kinds of cases before. Scalia, when he was on the DC Circuit, wrote the decision in Sanchez-Espinoza v. Reagan dismissing a war-powers-based challenge to US intervention in Nicarauga on the grounds that it was a “nonjusticiable political question.”

Dumbing Down the Federalist Papers

Tuesday, June 14, AD 2011

I remain fairly ambivalent about Glenn Beck (an ambivalence that got me involved in a heated debate on this very site, but that’s another matter).  His style, especially on television, just doesn’t appeal to me.  He also seems to believe that having the dial turned to 11 is the only way to get his point across.  That said, I am appreciative of his efforts to teach American history to his audience.  He’s had some excellent academic guests like Ronald Pestritto on his show, and he has an appreciation of some of the nuances of American political thought that go over a lot of other heads.

Then I saw this, and I’m ready to grab the pitchforks.  From the product description:

Adapting a selection of these essential essays—pseudonymously authored by the now well-documented triumvirate of Alexander Hamilton, James Madison, and John Jay—for a contemporary audience, Glenn Beck has had them reworked into “modern” English so as to be thoroughly accessible to anyone seeking a better understanding of the Founding Fathers’ intent and meaning when laying the groundwork of our government. Beck provides his own illuminating commentary and annotations and, for a number of the essays, has brought together the viewpoints of both liberal and conservative historians and scholars, making this a fair and insightful perspective on the historical works that remain the primary source for interpreting Constitutional law and the rights of American citizens.

So it’s the New American Bible for the Federalist Papers.  I wonder if Bishop Trautman consulted on this project.

Just as the average person can probably handle such mysterious words as “ineffable,”  I’m sure that most Americans can pretty much figure out what’s going on with the Federalist Papers without Glenn Beck re-translating it for us.  Yes, there are no doubt some tricky words in the 500+ pages and 85 essays, but that’s what footnotes are for.  Annotated versions of the Federalist Papers already exist, and those should suffice for Beck’s purposes.  Besides, part of the joy of the Federalist Papers is reading Madison and Hamilton’s beautiful prose.

Jeff Goldstein elaborates further on why this is problematic.

On the one hand, we’re supposed to believe that anyone can read and understand the Constitution — meaning, we don’t need a special priesthood to interpret the thing (and of course, this is true, assuming a base level of reading comprehension and intelligence, and assuming one can get past the fact that the document itself is like, over a hundred years old!); and yet at the same time, the Federalist Papers, we’re to understand today, are so arcane and abstruse and unintelligible that they aren’t even being taught anymore — a problem happily solved by Beck’s latest offering, a book that rewrites the Federalist Papers using modern language, which can be yours for only however many dollars (through the website, blah blah blah).

I agree with Jeff that this sends a very poorly thought out mixed message.  In fact Beck is playing into the hands of those who criticize the concept of originalism.  He’s conceding that the language of this era is difficult for people to comprehend, so the only way to make these writings more widely accessible is to completely re-write them.  It is a contradiction that I doubt Beck has thoughtfully considered.

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21 Responses to Dumbing Down the Federalist Papers

  • Allow me to play devil’s advocate. The Federalist Papers are 700 pages long. For a slow reader like me, that’s a bit much for something that’s probably not going to change my opinion on anything. I’m not looking for a New American Bible of the Federalist Papers, but I wouldn’t mind a Cliffs Notes or a book of selected readings.

    Then again, it looks like Beck’s book is 500 pages long, so I could be completely off-base here.

  • A few select essays would be fine, but I think re-writing them in modern prose is a bad idea, and for the reasons Goldstein suggests.

    Now if you want a Cliff’s Notes version of the Papers, you can always go here. At this rate, I should have the series wrapped up sometime before my grandchildren are born.

  • I’m on the fence on this one. I see your point and I don’t disagree, but on the other hand, I think it could be helpful in reaching people who would otherwise be disinterested by showing them how The Federalist Papers are still relevant today.

    Ideally, everyone would read the originals. I’ve read them and they aren’t that hard to understand. However, I’m also very politically tuned in and am already inclined to be interested in examining our founding documents. I’ve got scores of friends and relatives whose eyes glaze over at the mere mention of this stuff. So if I can get their attention with a book like Beck’s and by extension possibly get them interested enough to read the originals for themselves then maybe that’s a good thing.

  • Paul, I’ve read some of them, and they’re really good.

  • So it’s the New American Bible for the Federalist Papers.
    Or the Douay-Rheims for the Federalist Papers. Learn Latin you slackers!

    Granted, the original Federalist Papers are still in English but if they can be made more accessible, by all means. Unlike the New American Bible, I don’t even see much of an overlap between people who would read the Federalist Papers and people who would buy Beck’s adaptation.

    I hope Beck releases an annotated Constitution. He won’t though because he knows a lot of his followers believe a lot of crazy things about the Constitution and he doesn’t want to lose them.

  • Bad idea. In its own way, rather like updating the language of Shakespeare. They need to be read in the original language, and if that makes it somewhat harder, then so what? Stretch!

    A dynamic equivalence Federalist Papers we don’t need.

  • I was just directed to your blog via Pat Archbold at the NC Register as one of the best Catholic blogs. I’m always looking for these, so naturally I had to come check you out.

    I am unimpressed. You have managed to sound elitist, snobbish, and boring in this post. Actually, you sound threatened, and I don’t understand why. Yes, most of us can handle The Federalist Papers in the original, but look at the state of our Republic and ask yourself why it’s a bad thing to make such important documents more accessible to more people?

    Commenter RR says: “Unlike the New American Bible, I don’t even see much of an overlap between people who would read the Federalist Papers and people who would buy Beck’s adaptation.”

    May I just say, RR, that you’re completely out of touch. Because of GB, there is a huge movement of people in this country who are delving into our founding documents with great enthusiasm. You’ve got a vast segment of the population (of GB listeners) pigeonholed rather nicely as simpleminded followers, or something. But, whatever fits the narrative, I guess.

    He’s not doing this because The Federalist Papers are “arcane.” It’s because they’re still so relevant. You’re making a bad guy out of the wrong person. Might I suggest you expend some energy criticizing those who would banish our founding documents from study at all?

  • “Might I suggest you expend some energy criticizing those who would banish our founding documents from study at all?”

    Who would those people be Lindy?

  • Actually, you sound threatened, and I don’t understand why.

    You probably don’t understand it because it’s not an emotion I’m feeling.

    ask yourself why it’s a bad thing to make such important documents more accessible to more people?

    You can make the documents more accessible without re-translating them. I’d love for every American to read the Federalist Papers. If I had gone into academics they would have been required reading in any course on American politics that I taught.

    Might I suggest you expend some energy criticizing those who would banish our founding documents from study at all?

    I’m not making Beck a bad guy – I’m disagreeing with his approach. I don’t subscribe to the theory that you can never criticize like-minded individuals. In fact, when a fellow traveler does something that hurts the cause it’s imperative to correct them.

  • One other thing occurs to me. How is that the guy who thinks anyone should and can read the Federalist Papers as written is the snobbish and elitist guy, while the man who thinks many Americans might be too simple-minded to grasp them without dumbing down the words is the populist champion?

  • Paul Z: Fair enough. Obviously, you’re free to disagree with Beck’s approach, but I still don’t understand why you think he is hurting the cause, as you say.

    What is the worst that could happen as a result of reading a translation of TFP? That someone would miss out on the beautiful prose (which is, undoubtedly, a shame) but still have a greater understanding of our founding? How is this a bad thing?

    Perhaps you’re right and one can make TFP more accessible without re-translating them. We can see how well this translated version is received to determine if that’s truly the case. I just can’t deem it a bad idea if it allows even a small segment of the population to better appreciate our founding. Maybe this will fill a previously unfilled niche.

    And, for the record, when someone says they’re ready to “grab the pitchforks,” that strikes me as rather emotional. That’s all.

  • I understand your point and can see the appeal of trying to make our founding documents more widely accessible. As I said in my post the one thing I like most about Beck is that he works hard to educate the public about our early history, so I’m sure his heart is in the right place. It just strikes me as the wrong approach.

    And, for the record, when someone says they’re ready to “grab the pitchforks,” that strikes me as rather emotional.

    Oh, I’m just exaggerating for effect. Tar and feathering would be as far as I’d go. 😛

  • All I’m saying is: Don’t lament another approach to reaching people. Maybe it’s not for you, maybe you hate it, but don’t dismiss the idea wholesale just because you think it stinks. I think that’s the reason I thought you sounded elitist.

    And after listening to Beck introduce the idea–after having heard him firsthand–I don’t think he comes to the idea because he thinks Americans are too simpleminded. He just so earnestly believes in the importance of our great founding documents that he will try every approach in making them accessible to everyone.

  • I get it.

    And I will probably still bookmark this blog. : )

  • “I am unimpressed.”

    Take a number.

    “You have managed to sound elitist, snobbish, and boring in this post. Actually, you sound threatened, and I don’t understand why.”

    Because we are better than everyone else and they don’t know it. 😆

    Welcome to the blog Lindy. Look forward to your thoughts in the future.

  • I vote they be translated into Ebonics.

  • I have no problem with Beck’s approach to the Federalist Papers, but his fans are simpletons. That’s why he’s doing this. His whole show is about him teaching the ignorant with chalkboard and teacher’s desk and all.

  • But for the fact the further you get from the original text the more distortion you get in the translation; Beck’s updating/translating is of no consequence.

    RR no need to be insulting – if one has a sound argument one does not need to rely insults to destroy someone’s position, argument, etc. 🙂

  • In my humblest of opinions, The Federalist Papers, like Cicero or Montesquieu, must be read in the original. No matter how faithful the translation or adaptation, something; even a seemingly irrelevant phrase, is lost. I am no scholar, but to me there is merit in struggling to understand works that form the foundation of our society or culture. These types of works are often read and reread thoughout one’s life like Imitation of Christ, or Anna Karenina or Les Miserables. I fear we have tried to make difficult things so “accessible” we no longer stretch the mind for fear it will tear. LOL.

  • Alecto, are you saying that Les Miserables shouldn’t have been translated?

  • RR – your argument is a sound one, I find Glenn Beck far more arrogant than intelligent, with a need to be Center Stage at any cost. The Missionary version of the Music Man, It’s almost sad.