Vandalizing the Constitution's war powers gave us Donald Trump's wrecking ball against the constitutional order
Drum majors for presidential war powers made Faustian bargains to abandon intellectual honesty for ulterior motives
Some seem puzzled as where to discover the Constitution’s exclusive entrustment of the war power to Congress with the corollary conclusion that the United States will be neutral, i.e., neither a belligerent nor co-belligerent, unless a congressional statute or joint resolution disturbs neutrality.
The federal government is a government of limited powers. Unless the Constitution grants power, it is withheld.
Article I, section 8, clause 11, provides that Congress shall have power “To declare war….”
Article II, which sets forth executive powers, conspicuously omits any textual or subtextual war power for the President, although it expressly confers such insignificant powers as receiving “Ambassadors and other public ministers.” In sum, the Constitution withholds presidential war powers by not granting them, in contrast to the Constitution’s express grant of the war power to Congress.
Further, it was the universal understanding among every participant in the drafting, debating, and ratifying the Constitution that Congress was exclusively endowed with the war power and the President was excluded. As a concession to the shortness of life, selective prominent examples must suffice for this email.
President George Washington, who presided over the constitutional convention, advised as President: “The Constitution vests the power of declaring War with Congress; therefore, no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
James Madison, father of the Constitution, elaborated, “In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislative, and not to the executive department…[T]he trust and the temptation would be too great for any one man.”
Alexander Hamilton, who coveted hyper-muscular executive power, nevertheless amplified in Federalist 69, “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 which, by the Constitution under consideration, would appertain to the legislature.”
James Wilson, delegate to the constitutional convention and later appointed to the U.S. Supreme Court by President Washington, explained to the Pennsylvania Ratification Convention, “This system will not hurry us into war; 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, for the important power of declaring war is vested in the legislature at large.”
When Pierce Butler, at the constitutional convention, moved to assign the war power to the President, delegate Elbridge Gerry expostulated, I "never expected to hear in a republic a motion to empower the executive alone to declare war." The motion failed.
In 1801, President Thomas Jefferson sent a small squadron of frigates to the
Mediterranean to protect against possible attacks by the Barbary powers. He told
Congress that he was “unauthorized by the Constitution, without the sanction of
Congress, to go beyond the line of defense.” It was up to Congress to authorize
“measures of offense also.”
U.S. Chief Justice John Marshall underscored in Talbot v Seaman (1801) that the “whole powers of war being, by the constitution of the United States, vested in congress, the acts of that
body can alone be resorted to as our guides in this inquiry.”
Abraham Lincoln wrote to his law partner denying the President was empowered unilaterally to initiate the Mexican-American War without a congressional declaration:
"Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us;' but he will say to you, 'Be silent: I see it, if you don't.'
"The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: 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. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."
During the Civil War, Justice Robert Greer opined in The Prize Cases that the President as commander in chief “has no power to initiate or declare a war either against a foreign nation or a domestic State,”but in the event of foreign invasion the President was not only authorized “but bound to resist force by force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative authority.”
Even ultra-war hawk Dean Acheson as secretary of state testified before the Senate Foreign Relations Committee regarding Article 5 of NATO: “[Article 5] naturally does not mean that the United States would automatically be at war if one of the other signatory nations were the victim of an armed attack. Under our Constitution, the Congress alone has the power to declare war.”
As a United States Senator, Joe Biden recognized the President was constitutionally powerless to initiate war and should be impeached and removed from office if the President acted otherwise. Ponder this exchange with Chris Matthews on Hard Ball in 2007:
MATTHEWS: You said that if the president of the United States had launched an attack on Iran without congressional approval, that would have been an impeachable offense.
BIDEN: Absolutely.
MATTHEWS: Do you want to review that comment you made? Well, how do you stand on that now?
BIDEN: Yes, I do. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. You've known me for a long time. I was chairman of the Judiciary Committee for 17 years, or its ranking member. I teach separation of powers and constitutional law. This is something I know.
So I got together and brought a group of constitutional scholars together to write a piece that I'm going to deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people, unless we're attacked or unless there is proof that we are about to be attacked.
And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him.
In sum, the meaning of the Declare War Clause is as clear as the 35-year age requirement for the President. There is no room for honest intellectual debate. To the politically opportunistic who would fabricate ambiguity where there is none, I would refer to Abe Lincoln’s rhetorical question and answer about the number of legs a dog possesses: “How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn't make it a leg.”
Some cheerleaders for extraconstitutional executive power are candid. Assistant Secretary of War John McCloy defended limitless war powers of President Franklin Roosevelt by conceding, "the Constitution is just a scrap of paper to me.” Mr. McCloy prospered politically and became one of a fabled group of Wise Men expressing such an alarming celebration of constitutional lawlessness.
Of course, the intellectually dishonest can discern ambiguity in the face of apodictic certainty. President Clinton famously retorted to Independent Counsel Ken Starr: “It depends on the meaning of what the word ‘is’ is.” Or, like Humpty Dumpty in Alice in Wonderland, vandals of the Constitution can insist that the text means whatever they want it to mean, like President Donald Trump’s deranged interpretation of the Twelfth Amendment to depute the Vice President with unreviewable power to decide the outcomes of presidential elections.
The Constitution’s architects were long-headed. They did not believe in their infallibility, and thus provided for amendments in Article V. But no amendment has even been proposed in 234 years to transfer the war powers of Congress to the President. My view is such an amendment would be DOA.
The Constitution’s exclusive entrustment of the war power to Congress does not dictate any particular foreign policy. It simply states as a matter of constitutional procedure Congress is the decider, not the President. Congress is constitutionally free to be isolationist or interventionist as it sees fit. Members are accountable to the voters and can be removed at periodic intervals. Congress was made the decider because unlike the President it has no incentive to initiate pointless wars because of the opportunity to aggrandize power.
In my humble opinion, counter-constitutional advocates of presidential war powers have blood on their hands. They have made a Faustian bargain to abandon intellectual honesty for power, celebrity, riches, or otherwise. Millions have died as a consequence of promoting the myth of presidential war powers. Presidential war power bugles have given birth in whole or in substantial part to Mr. Trump’s wrecking ball against the constitutional order and the American Revolution that made the rule of law king, and repudiated the king as law.
You can side with the Constitution, or you can side with presidential war powers and the constitutional lawlessness that earmarks Donald Trump. But you can’t do both.
Bruce Fein
Ahhh but supposedly, presidents reliance on “Private Contractor” people like Erik Prince and Blackwater, gets them around, or Above, adherence to this inconvenient Constitutional Separation of Powers.