Over the last several weeks, we’ve looked at the “general welfare,” “necessary and proper,” and “commerce” clauses, three constitutional provisions often used by progressives to expand federal power, and we established what those clauses actually mean. While liberal constitutional interpreters abuse those clauses, scholars and politicians have utterly disregarded the proper understanding of war powers.
This should cause Americans a great deal of concern, because as James Madison pointed out, war poses the gravest threat to personal liberties.
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. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.
While scholars try to make constitutional war powers a complex issue shrouded in mystery, they prove quite simple in reality. Article I Sec. 8 delegates Congress the power to “declare war.” Article II Sec. 2 designates the president “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.”
These two roles stand separate and distinct from one another. Congress makes the decision to enter into war. The president then has the authority to prosecute the war, within the limits Congress places on him. The designation of commander in chief does not delegate the president any power to take America into war or initiate any offensive military expeditions. Note that even after the Japanese attacked Pearl Harbor, Pres. Roosevelt still needed a declaration of war to initiate further action against the Japanese.
Founding era discussion on war powers makes it clear that the framers and ratifiers wanted the authority to take America into war placed in the legislative branch because it was the deliberative body most closely representing the will of the people. They did not want the authority to drag the U.S. into war placed at the discretion of one individual. Madison makes this clear 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, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.
George Washington recognized this limitation on his power as he was contemplating an offensive war with the Creek nation in 1793. In a letter to William Moultrie, the president emphasized he would need congressional approval to initiate action.
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.
Madison wrote in detail about war powers in his Letters of Helvidius.
In the general distribution of powers, we find that of declaring war expressly vested in the congress, where every other legislative power is declared to be vested; and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature…
Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.
Modern presidents have circumvented the requirement to declare war by appealing to the War Powers Act of 1973, which allows the president to send troops into action for up to 90 days before getting congressional approval. They also rely on broad authorizations to use force passed by Congress. Basically, these resolutions allow the president to decide if and when he wants to take military action.
But the War Powers Act and congressional resolutions simply don’t pass constitutional muster.
First, no constitutional provision authorizes Congress to pass off its delegated power to the president. In fact, doing so violates basic rules of construction. In contract law, when a principal (the people) delegates power to an agent (the federal government) that entity cannot transfer the power to another party without specific direction. No such authorization exists. So, Congress can’t simply give the president a blank slate to make a decision on war based on his own discretion. Congress must make that call and make it specifically before initiation of military action.
Second, they violate the spirit of the separation of powers. Remember, the framers and ratifiers wanted the decision to go to war left in the hands of a deliberative body – the representatives of the people – not in the hands of a single individual. The War Powers Act does the exact opposite allowing the president to act without any congressional approval beforehand, and resolutions give him broad authority to decide when and if he wants to act. This does not encompass the type of deliberation the founders envisioned.
The declaring of war is expressly made a legislative function. The judging of the obligations to make war, is admitted to be included as a legislative function. Whenever, then, a question occurs, whether war shall be declared, or whether public stipulations require it, the question necessarily belongs to the department to which those functions belong–and no other department can be in the execution of its proper functions, if it should undertake to decide such a question.
Next week we will continue looking at war powers, more specifically focusing on the meaning of “declare war.”