A “blue-ribbon panel” led by former Secretaries of State James Baker and Warren Christopher has recommended that the War Powers Act be replaced by a more “effective” resolution. According to these Constitutional experts, the problem with the existing War Powers Act is that it has been largely ignored over the years. The way to correct this defect, apparently, is to write a new version that will be un-ignorable. Somehow. Maybe. (The details are still a bit fuzzy).
As CNN reports, ever since Congress first attempted to wash its hands of its responsibility to declare war back in 1973, presidents have flouted the War Powers Act’s requirement to make regular reports to Congress. As Sen. Slade Gorton remarked, “No president has ever made a submission to Congress pursuant to the War Powers Resolution since 1973.” [Emphasis mine]. Why the refusal to inform Congress of the progress of undeclared wars and sundry military engagements? Because presidents have considered the Act to be an unconstitutional restriction on the president’s role as commander-in-chief.
Well, they’re half right anyway. The Act is unconstitutional, but not for the reason various presidents have claimed. The resolution is unconstitutional because it delegates the war-making power vested in Congress by the Constitution to the Executive branch, a clear violation of the separation of powers. As James Madison wrote,
“The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies. A delegation of such powers [to the president] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.”
The Founders had reason not to trust the executive branch with the power to declare war. As James Madison wrote in a letter 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.”
History would seem to confirm Mr. Madison’s dim view of the executive branch in this regard. The last time Congress actually declared war was in 1942. Ever since then, the president has been allowed to commit American troops whenever and wherever he wished. Here is a list of military operations of varying degrees that have been carried out without a declaration of war from Congress (my apologies to any conflicts that may have been excluded from the list):
- Korean War
- Lebanon Crisis of 1958
- Vietnam
- Lebanon (1983)
- Grenada
- Panama
- Somalia
- Haiti
- Kosovo
- Persian Gulf War
- Afghanistan
- Iraq War
But the president is Commander in Chief! He should be able to do whatever he wants with the military! Well, not exactly. When we read the fine print of the Constitution (cleverly hidden in Article II, Section 2), we see that “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….” Given that the Founders viewed a standing army as a grave threat to liberty, they limited the formation of an army to two years (a constraint that has yet to be eliminated by Constitutional amendment, by the way). If the armed forces were called into the actual service of the United States, it meant that Congress had declared war. It is only at this point that the president becomes commander in chief – it was never meant to be a full-time part of his job description.
But again, we’re talking to a brick wall when we speak of constitutional governance these days. No one cares, as evidenced by the fact that Rep. Ron Paul offered a declaration of war prior to the invasion of Iraq that garnered only three votes. Chairman Henry Hyde opposed the motion, stating,
“There are things in the Constitution that have been overtaken by events, by time. Declaration of war is one of them. There are things no longer relevant to a modern society. Why declare war if you don’t have to? We are saying to the President, use your judgment. So, to demand that we declare war is to strengthen something to death. You have got a hammerlock on this situation, and it is not called for. Inappropriate, anachronistic, it isn’t done anymore.”
(A few years later, Representative Hyde was awarded the Presidential Medal of Freedom).
But despite what most in government obviously believe, there are also some practical benefits that derive from following the Constitution. Had Congress taken up Rep. Paul’s motion and actually declared war prior to the Iraq invasion, the Bush administration would have been spared the trouble of inventing new categories of jurisprudence out of whole cloth. There would have been no need to create an “enemy combatant” category and we could have avoided all the wailing and gnashing of teeth over habeas corpus rights for suspected terrorists. Prisoners captured on the battlefield would have simply been considered prisoners of war. Granted, their interrogators wouldn’t have been able to waterboard them, but I suppose one can’t have everything. Who knows? We might even have avoided the Military Commissions Act, which enables the executive branch to declare anyone an enemy combatant, no matter where they are or what their nationality might be (that means American citizens living in the United States could be accused of being an unlawful enemy combatant, picked up off the street, and imprisoned in a military brig for an indefinite period of time with no recourse to the U.S. legal system).
Of course, the primary reason to follow Constitutional strictures with regard to the war-making power is to make war itself much less common, thereby preserving the liberties of American citizens here at home. Let’s turn to James Madison one last time,
“Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”
