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War Powers


Posted on: January 24, 2011

By Don Fotheringham

“For it is a truth, which the experience of all ages has attested, that the people are commonly most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” (Hamilton, The Federalist No. 25)

History tells the sad story of citizens whose rights were injured by leaders they trusted. For this reason the departments of power in the United States were not given the means of injuring the rights of the people. In making one nation out of thirteen states, our founders knew the danger of consolidated power, and therefore the 1787 Convention was driven by a two-fold objective: The creation of a national government armed with enough power to defend the people, but not enough power to enslave them. The final draft of our Constitution certifies that remarkable accomplishment.

Under the Articles of Confederation, the states lacked, among other things, a president. A review of the records of the 1787 Convention indicates that more time and deliberation went into the question of executive power – and the means of restraining it – than any other consideration at the Convention. On executive power, Alexander Hamilton wrote: “There is hardly any part of the system which could have been attended with greater difficulty than this.”There was more debate over this than preceded the famous Connecticut Compromise.

The current flurry of debate over the powers of our president would simmer down to a mere sigh if the contenders would stop trying to impress one another and simply review the founding objectives of these great United States. And such a consideration might be enhanced by a realization that the same old perfidy of man rolls on – perhaps even faster – in this new age of high tech, high speed, mass distribution of mistaken ideas. The debate rages with many because correct information is missing, and with some because misinformation is intended. But should little of enduring value come of this essay, please let at least one principle be engraved in the minds of all who read it:

Presidents of the United States do not have powers beyond those granted by the people as identified in the United States Constitution.

Many are surprised to learn that the Constitution makes no allowance for executive war powers or presidential emergency power of any kind. No, the president cannot commence or declare war, suspend the Constitution, ignore the Bill of Rights, declare martial law, or circumvent any restraint on his proper authority in times of exigency. This deliberate, carefully considered omission of power applies at all times to all U.S. presidents. Their power to manage military operations does not include power to determine or initiate war.

Our nation’s founders delegated the power to make war and all provisions for war entirely to Congress. Only Congress is authorized to declare war; raise and support our military forces; call up the national guard; appropriate the money for war; make all rules concerning captures on land and sea; provide and maintain a navy; make rules for the government and regulation of the armed forces; to provide for organizing, arming, and disciplining the national guard, and for governing such part of them as may be employed in the service of the United States. (See Article I, Section 8)

Why then do we hear so much regarding the president’s powerful military role? Consider the language in Article II, Section 2:

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.

Now, consider the purpose and extent of this power as granted by the men who created our country. Alexander Hamilton explained:

First. The President will have only occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The King of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article [Article II] therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. 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 the raising and regulating of fleets and armies – all of which, by the Constitution under consideration, would appertain to the legislature [Congress]. (Hamilton’s italics – The Federalist No.69)

From records of the Convention, we learn that “the Executive should be able to repel and not to commence war.” As commander in chief of US military forces he is to conduct the operations of war in defense of our country. He is our top military leader authorized to engage the enemy in response to a declaration of war issued by Congress, and he must look to Congress for the men, money, and materiel needed in such times of national emergency. And to further assure that national emergencies will not drag on indefinitely, funding for the support of armies is limited by the Constitution to two years. Long wars and high taxes are the road to captivity even when the US may appear to be the winner. With uncanny vision, James Madison observed:

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…. No nation could preserve its freedom in the midst of continual warfare. (April 20, 1795; Works 4:491-2)

What is the corollary to Madison’s fundamental premise? Let’s put it this way: Continual warfare is one means of consolidating dictatorial power over the people. Surely continual warfare is the greatest gift ever conjured up by wolves dressed in executive clothing – those officers of whom we entertain the least suspicion. And if our nation has been led into one war under false pretenses, that means new, more fearful pretenses must begin immediately if continual warfare is intended to bring the many under the dominion of the few.

Most anyone can fill in the blanks on this. The unbroken flow of hostility is our transition from war in Iraq to war with Iran. It shouldn’t be too hard to understand that especially in times of national stress, when public emotions peak, our God-given rights are in peril. At such times the patriotic spirit of our nation is so highly aroused that we are willing to do whatever it takes to defend our country and preserve our freedom. Almost always in the first hours of a national crisis (whether created or pretended) presidents hurry to the podium and grab more powers than ever dreamt of by the most calloused monarch.

Where are the members of Congress during such moments? Most of them are anxiously watching the applause meter at the White House. Crises tend to elevate the popularity of tough-talking presidents and congressional wimps prefer to ride the sensational wave rather than stand up and say, now wait just a minute. America’s founders expected Congress to use its authority over all aspects of war to protect the nation from enemies abroad and executive temptation at home. “The constitution supposes,” wrote Madison to Jefferson, “what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it.” He then added: “It [the Constitution] has accordingly with studied care, vested the question of war in the Legislature.” (Letter dated April 2, 1798) Congress: Are you listening?

Not only does the Constitution contain no such war power for the president, it makes no allowance for Congress to shift its constitutional authority to any other department. Congress cannot delegate its war power to the executive department or to an administrative officer, nor can any department or officer repeal, extend, or modify an act of Congress. Any act of Congress granting executive “war powers” is an abrogation of the duty of Congress and constitutes a serious violation of the separation of powers.

The Congressional Record is replete with various versions of “war powers acts,” and resolutions purporting to authorize the president to exercise his judgement in matters of going to war. None of these bills even hint at the solemn responsibility of Congress to issue a declaration of war. From the written testimony of our founders, and the simple logic of liberty, we know these bills to be worthless paper. They embody powers once wisely vested in Congress which have been illegally shunted off to the executive department.

The notion of presidential war power is just that — a terribly pervasive, dangerous, and baseless notion. Executive authority does not evolve through the passing of time. It is not gained by precedent, tradition, or even the presence of grave danger. Strict constitutional restraints on our chief executive are, in fact, more essential in times of war and terror (including threats of war and terror) than at any other time.

These perilous times cry desperately for truth, principle, and courage. In times of exigency we need a Congress fiercely jealous of its power, willing to remind the man in the White House that his wartime role is commander of our military forces, not the ruler of the world. Moreover, we expect members of Congress to actually read the Constitution of the United States, and if they have any doubt about its purpose and meaning, they must look into the founding documents that dispel every deceitful myth on questions of power.

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