Only Congress Can Declare War
The Founders Wanted to Make War Less Likely
OCTOBER 01, 2002 by DOUG BANDOW
The Bush administration has been looking at other potential military targets almost since the war in Afghanistan started. But should the President decide he wants to expand the war, he should get legislative approval.
After September 11 Congress authorized President Bush to retaliate against any “nations, organization, or persons” he determined to be involved in the atrocity. But there is no evidence linking even that ugliest of regimes, Iraq, to the September attacks.
So the administration has spent months developing an alternative justification for attacking: the refusal to accept United Nations inspections aimed at deterring development of weapons of mass destruction. Nonproliferation is a worthy concern, but not one obviously warranting war. Indeed, Baghdad has been out of compliance with the U.N.’s inspection regime since 1998.
Moreover, the President has no authority to act for this reason. Congress authorized him to retaliate against terrorism, not to commence war to enforce U.N. inspections-or overthrow a nasty dictator.
After the Senate Foreign Relations Committee held hearings on the prospect of war with Iraq last August, President Bush promised “to consult with Congress.” But consultation is not nearly enough.
Article 1, Sec. 8 (11) states, “Congress shall have the power . . . to declare war.” The president is commander-in-chief, but he must fulfill his responsibilities within the framework established by the Constitution and subject to the control of Congress.
Today, of course, presidents prefer to make the decision for war themselves. In effect, American presidents claim to possess power comparable to, if not greater than, that of the onetime head of the Soviet communist party. As then-Defense Secretary Caspar Weinberger rightly criticized the Evil Empire: “Now who among the Soviets voted that they should invade Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the Kremlin. Nobody else. And that is, I think, the height of immorality.”
Now who among Americans has voted to attack, say, Iraq? Should one man in the White House make that decision, it would also be the height of immorality.
One of the founders’ criticisms of the British king was that he could unilaterally drag his nation into war. President Abraham Lincoln, a “strong” president apt to act on his own authority, nevertheless reflected: “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.”
The Constitution’s framers consciously rejected such a system. Still, some Americans opposed the proposed Constitution because they feared that it gave the president too much authority. Don’t worry, explained that great friend of executive power Alexander Hamilton. The president’s power “would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war.”
The founders wrote the Constitution as they did because they feared that presidents would act as they do now. Explained James Madison in 1793, it is necessary to adhere to the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.”
Constitutional convention delegates did change Congress’s power from “make” to “declare” war, but the intent was to give the president authority to respond to a sudden attack, not initiate a conflict. The Founders wanted to make war less likely.
The president “is not safely to be entrusted with” the power to decide on war, said Virginia’s George Mason. James Wilson advocated a strong presidency, but was pleased that the proposed constitution “will not hurry us into war.” Instead, “It is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.”
The founders were prescient. Presidents have routinely deceived the public, lied to Congress, and manipulated the political system when taking America into war.
What argument can be made by those who would give today’s presidents monarchical powers? There will always be potential gray areas. A world in which nuclear missiles can deliver destruction almost instantaneously, and transnational organizations can turn hijacked airliners into cruise missiles, is not a simple one.
But most cases, such as attacking Iraq, are clear. The President must go to Congress.
Naturally, chief executives offer creative reasons to short-circuit the Constitution’s clear requirement. One claim is that the president has some unspecified, ill-defined “foreign affairs power” that reduces the explicit war powers clause to a nullity. However, the framers consciously circumscribed the president’s foreign policy authority by vesting countervailing power in Congress, including the responsibility to declare war.
Are there any legitimate exceptions to the congressional war power? Some analysts would have Americans believe that in the modern world it is simply impractical to involve legislators in foreign policymaking.
Yet no one thinks that 535 legislators should manage the ensuing war-that’s why the Constitution names the president commander-in-chief. But Congress must decide whether or not the president will have a war to run.
Some would expand the president’s power to use the military for “defensive” purposes. Defensive means defensive, however. Constitutional convention delegate Roger Sherman of Connecticut explained that “the executive should be able to repel and not to commence war.”
In an uncertain world, presidents also like to argue that they must be able to respond instantaneously to unpredictable events. Yet there is almost always time to go to Congress before going to war. Even in the case of the September 11 attack, Congress had ample time to act. There obviously has been no hurry to make war on Iraq.
Today the favorite presidential excuse for claiming the right to unilaterally initiate war is simple: everyone else does it. Those lawyers favored by former President George H. W. Bush point to 200-plus military deployments without congressional approval.
The precedent is thin. Legal scholar Edward Corwin notes that these examples are largely “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like.”
Anyway, future presidents are not absolved from having to follow the Constitution because past presidents violated it. President Dwight Eisenhower respected the Constitution enough to announce: “When it comes to the matter of war, there is only one place that I would go, and that is to the Congress of the United States.” So should President Bush, if he wants to attack a member of the Axis of Evil or another country.
Doug Bandow, a nationally syndicated columnist, is a senior fellow at the Cato Institute and the author and editor of several books.