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Thursday, September 12, 2013

The Power to go to War

By Sam Huntington



We once more enter the discussion of who has the power to take the American people to war. On the one side of this argument, represented by nearly every president since Harry Truman, the president as chief executive and commander in chief of the Armed Forces of the United States has the power to act unilaterally with regard to imposing hostilities upon another nation. On the other side of this argument are those who argue that only Congress can declare war, only Congress can fund war, so that no president may commit this nation to war without the authority of the Congress.

It is easy for me to dismiss the first argument as one made by those who wish to retain their power. It is easy for me to support the second argument because it is ludicrous to imagine that a nation founded on the principle of checks and balances would so easily give over to the president such unlimited powers.

Dr. Robert Turner of the University of Virginia School of Law makes a case for the former argument, stating that it was the intent of the founding fathers to give the president massive power as this nation’s chief executive. According to Dr. Turner, Jefferson himself weighed in on this very topic:



“The Constitution has made the Executive the organ for managing our intercourse with foreign nation… From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.”

In addition, Chief Justice John Marshal (no friend of Jefferson) opined:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion… [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.”

Dr. Turner therefore concludes that the War Powers Act of 1973 is a fraud and an unconstitutional check upon the power of the President of the United States.

I believe the founding fathers were intentionally vague with respect to presidential power. Who then knew the scope of the presidency in outward years? I think the founding fathers were near-genius, but no one can see clearly into the future. By leaving this description vague, I believe the founding fathers trusted subsequent generations to work out their differences in a civilized manner.

As an aside, Mr. Washington himself was not altogether clear about what the framers of the Constitution intended in terms of presidential powers. He did not know what they meant by the words, “He shall have power, by and with the advice and consent of the Senate, to make treaties.” According to one historian, Washington tested this once by personally taking a matter before the senate and asking for their advice. He sat in the well of the Senate for two days and listened to them dickering back and forth—finally leaving and vowing never to return.

On the other hand, the War Powers Act of 1973 does appear to lend some specificity to the vague instruction of the U. S. Constitution, Section 2:

(a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Dr. Turner argues that the idea of an imperial president was a myth. I think he is very wrong about that—and we do not have to return to the days of Andrew Jackson to consider whether this is true. When a sitting president of the United States announces that he does not need the Congress in order to implement his agenda, then we are talking about a dangerously imperial presidency. I am talking about Barack Obama, in case you missed it.


Turner also proclaims the War Powers Act a fraud … but now let us consider that Lyndon Johnson took this country to war predicated on events that never actually happened. It may be true that Congress overwhelmingly supported Johnson at the beginning of the Vietnam War, but they did so because he lied to Congress about the circumstances of the so-called Tonkin Gulf incident. I must now say that Lyndon Johnson was a disgrace, and a supremely costly one.

Under these circumstances, when the American people finally came to the realization that they could not trust the federal government, Congress asserted its authority over presidential imperialism by enacting the War Powers Act. I approve of Congress as a check against an imperial presidency —even if it is limited to an Authorization for the Use of Military Force (AUMF).

24 comments:

  1. Only in a perfect world would I want to see one person have the authority to act militarily without Congressional approval. The world is A LOOOOONG WAY from perfect and our CIC is even further away!

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  2. Sam,
    One of your best posts ever! Thank you.

    A couple of points from me....

    Thomas Jefferson governed more as a Statist than as the limited-government man he was before becoming President. Why? I have my own theories, but I'm interested in hearing what others have to say about the change in Jefferson.

    By leaving this description vague, I believe the founding fathers trusted subsequent generations to work out their differences in a civilized manner.

    Our Founders missed the boat on that one, IMO.

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  3. The War Powers Act is probably unconstitutional; but it has never been tested at the Supreme Court. It is, therefore, the law of the land and every president must abide by it or else Congress will say: "Shame on you, Mr. President".

    We need to do better!

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  4. As for the Founding Fathers, they all seemed to be of the opinion that the USA should stay OUT of foreign affairs whenever possible, and war only if the other guy starts it. This would have been a good policy, and was followed for awhile. In keeping with that wish- to stay out of foreign affairs- I believe checking the executives power to wage war fulfills that wish. Congress is much less likely to get anything done, good or bad, then the executive. And if the goal is to NOT go to war, then they are better at it (that is, doing nothing).

    In terms of power, the idea of the Founders was to NOT have a King right after getting rid of one, and thus they limited the presidents power. A King's ability to go to war at the drop of a hat is well know, well recorded, and well hated in countries with a monarchy (in history, at least). Its actually one of the biggest monarchy powers, and one of the most abused. King's have little to no skin in the game, and being on an ivory tower, never feel the repercussions of their actions (besides not getting elected, but a second term president is immune from that fear).

    Why the Founders never said it clearly? It may have to do with how annoyed they were with the Continental Congress during the Revolution. IIRC, it was pulling teeth to get them to do ANYTHING, much to every army officers dismay. Whether or not it backfired on the army, I dunno. But I would imagine any man would want to avoid having to go through that amount of bureaucracy incompetence again, and thus, they left it vague. Not willing to outright ignore Congress... not willing to go through that nonsense again in their lifetimes. Just a theory, though.

    -Wildstar

    PS The President usually knows absolutely nothing about the military (in modern years!), so the less they mess around with it, the better in my mind!

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  5. I actually do not see the War Powers Act as unconstitutional. It does not contravene any constitutional provision. What it does, in my opinion, is clarify Congress’ sense of the Constitution’s intent. I do not wish to see a president having to govern, as a chief executive must govern, by committee, but neither do I wish to see an “imperial” presidency—one that believes it does not need the opinion or concurrence of Congress or Court.

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  6. It is true that we do not have a direct democracy, but at the same time, we the people simply cannot allow the president to take this country into a war that is predicated on false or misleading information or circumstances. It is too high of a price to pay.

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  7. People of other countries have benefitted from US intervention. Not true about the government, but true about the people. My country is one of these; were it not for US interventions in Haiti, my people would suffere even more. Thank you America.

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  8. First out of practical reality comes desire and perceived needs, ideas follow, then theories, then laws, then practical reality.

    In truth our laws and system of governance are only theoretical, intellectual constructs that sprang from a certain native-born cultural ethos built on Tradition.

    Elements foreign and highly antithetical to that ethos have for many reasons become full participants in a process not of their own invention -- a process to which they are innately hostile. These hostile elements have been extremely successful in learning the mechanics of our system and mastering all its rules while remaining aloof from the spirit that initiated and nurtured it into greatness. Learning all the rules has enabled these foreign elements, who remain coldly immune to the spirit of or founding, to manipulate our system and cleverly twist and warp the meaning of our laws and traditions to suit purposes for which they were unintended.

    For good or for ill (mostly the latter, I fear) REALITY trumps THEORY every time, because AUDACITY and INTELLECTUAL AGGRESSION unburdened by qualm or conscience, motivated only by the ruthless determination to WIN no matter what it costs OVERPOWER Politeness, Restraint, Decency, Consideration, and the Need to Examine possible CONSEQUENCES and RAMIFICATIONS before taking action.


    "Democracies are most commonly corrupted by the insolence of demagogues."

    ~ Aristotle (382- 322 B. C.)

    We've known this since nearly four-hundred-years before the birth of Christ -- at least -- and still each Civilization, each Empire, each Nation, each State, each Society, each Organization sooner or later falls into the same old pit.

    The Serpent in the Garden of Eden, let loose and free to do his worst after The Fall, slithers amongst us always -- the original Snake in the Grass.



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  9. Yesterday being the twelfth anniversary of the Septerber 11, 2001 affront against both humankind and America. It's very important that we never forgot the evil that the forces of Islam's militant jihadism did on 9 /11. It' therefore also important that for the future we keep a balanced view on things. In that we must not live in fear or be afraid to go places or do things because of ant jihadist threats. For to live in fear would make the jihadist enemy happy. Nevertheless eventhrough we need not live in fear we still need to keep aware of our surrounding for thins that seem not to look quite right. As in "What's wrong with this picture ?" For example, the Tee-shirt vender who at Times Square was some smoke come out of that parked van and then let a police officer know about it. As it has been said "If you see something, say something." To put in another way, Thomas Jefferson had explain something which applies even more today then in his own time. For Mr. Jefferson stated "Let the eye of vigilance never to closed."

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  10. A very thought provoking post! I think the Founders were correct, but the People have faltered in their elections of corrupt men. Lots to chew on.

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  11. It just might be asked "Just what is Islam ?" one of the answers that may be given is that Islam is a political/religious /cultural system of tyrannical mind control that has power over the lives of millions of people around the world. With that stated it's therefore fitting to site the wisdom of Thomas Jefferson who declared "I have sworn upon the alter of God eternal hostility against every form of tyranny over the mind of mam."

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  12. @FT --- First out of practical reality comes desire and perceived needs, ideas follow, then theories, then laws, then practical reality.
    -------
    And since you live in a system of state capitalism, profit trumps all this stuff.

    Can't make the scene if you don't have the green.

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  13. At the time of our founding, one man did not have the power to put his finger on one trigger and destroy the world. At the least kill millions. It is absurd to think that as long as there is time to get congressional approval and not under imminent threat that we should not do this. He could go wacko, then what.

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  14. I dissent here. Studying history and law I have my own thoughts. I will say that we should stay out of Syria. We have enough on the home front to deal with and people are miserable here. We cannot afford to feed school age children enough to concentrate in school but we can afford another preemptive strike? It is mind boggling. Where are peoples sensibilities? As far as I see it is time we stop telling Israel what to do and let them lose to do what they should have done long ago. Nuke all these arises!

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  15. Staying out of war should always be the preferable things to do. But there are times when good men must stand up to evil and protect the innocent. The problem with Syria is that the Christians are the innocent group that no one talks about. Assad vs al-Qaed-linked terrorists seem to be the only concern. The chemical weapons have been used before, so why wasn't Obama concerned back then, approximately a year ago?

    Debbie
    Right Truth
    http://www.righttruth.typepad.com

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  16. Right Truth: "a year ago"? How about when he said we shouldn't go into IraQ after Saddam gassed 300K Kurds, right!?

    Great piece, Sam.
    I agree with Mustang 100%.
    I must say, however, as a more emotional shoot-from-the-hip blogger; I think we all think it's okay for a president to go to war if we trust him and we don't if we don't.
    no? Not the best way to think, but............it's human!

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  17. Perhaps our weakness in foreign policy causes us to rely too heavily on a military crutch? We have not exactly shown ourselves to be brilliant in the last decade.

    Tammy

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  18. how dare we accuse da Leader of being a war monger..how racist of us!...(sarc tag off)

    have a blessed weekend my friend:)

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  19. Years ago at Columbia University I studied the War Powers Act in detail. I largely concluded that it is unconstitutional for the Congress to bind the Commander in Chief in the exercise of his duties. This is not to say that Congress plays no role and they certainly can exercise the power of the purse. Nor is the Congress required to officially approve every act by the Commander in Chief.

    Frankly, Obama could have bombed Syria without going to Congress. He did so in Libya and hardly anyone noticed. He only went to Congress to give him someone to blame.

    Now look at the mess we are in. Congress cannot legislate presidential leadership.

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  20. Speramus Meliora; Resurget CineribusSeptember 13, 2013 at 1:32:00 PM EDT

    By the way, our new found friend Putin forgot to mention that he sent the carrier killer moskva missile cruiser
    into the theater today.. Hows that for trust?

    The man mad a monkey (pardon the expression, no pun intended) out of Obama

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  21. Speramus Meliora; Resurget CineribusSeptember 13, 2013 at 1:33:00 PM EDT

    By the way, our new found friend Putin forgot to mention that he sent the carrier killer moskva missile cruiser
    into the theater today.. Hows that for trust?

    The man made a monkey (pardon the expression, no pun intended) out of Obama

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  22. So the First Wookie wants the American people to drink more plain water! Aren't we LUCKY to have a First Wookie like her!
    Thank God we have a First Lady like Madam Moocher who has pushed Americans to eat healthier, who does jumping jacks every morning, take plenty of vacations, exercise’s more, and doesn’t take any crap from Royalty like the Queen of England. Now she says we should "drink up" too. But she’s not referring to Wine, or Booze, she is purposing us to drink plain water. And more of it.

    The first lady, an health fanatic who loves French fries, big juicy hamburgers and shakes, and whose butt and biceps are envied by women everywhere, is now getting behind a campaign being launched Thursday to encourage people to drink more plain old-fashioned water.
    This is the same Moochie Obama who told ABC News’ Robin Roberts last year, “I love burgers and fries, you know? And I love ice cream and cake. So do most kids. We’re not talking about a lifestyle that excludes all that. That’s the fun of being a kid. That’s the fun of being a human.”
    Whether it comes from a faucet, an underground spring, a rambling river or a plastic bottle, she said, the message is: "Drink up.

    The asinine shit that come out of bed wetting dipshits like these Marsist’ is stunning.. She needs to get her own life, and stay out of ours!
    I wonder how much "plain water" the First Wookie drinks before gobbling her Lobster and Caviar.
    And here's the problem with socialism: any self-righteous fool with a modicum of authority can interfere in your life for any purpose said fool deems necessary for your own good.

    The belief that people need to be herded like cattle lies at the heart of modern progressivism.

    It would be funny to watch the wrath of would-be commissars is it wasn't so inherently dangerous

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  23. I'd never thought I'd live to see the day when a Russian leader is dictating foreign policy to our own president. It is reprehensible how far our country has fallen. And it’s finally nice to see what side you lefties are on. It's definitely not America's

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