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Let’s Give the Constitution a Chance

Editorial

July 2008

by Stephen F. Knott

The National War Powers Commission released a report last week urging that the 1973 War Powers Resolution be replaced by a new law that would, except for emergencies, require the president and Congressional leaders to “discuss the matter before going to war.” The commission, chaired by former Secretaries of State James Baker and Warren Christopher, acknowledged that its proposals will not “resolve” the underlying constitutional issues, suggesting that a Supreme Court decision or a Constitutional Amendment will do that. It strikes me that the ambiguity surrounding the war power, the pulling and hauling over this power, was not intended to be “resolved.” Which leads to my primary objection to the Commission’s proposals: I would argue that the Constitution worked pretty well up through the passage of the War Powers Act of 1973, and it can work again. Second thoughts about Vietnam led to the passage of this misguided act, which has gone on to be ignored by every president, Democrat or Republican, since that time. The most helpful reform would be a repeal of the War Powers Act (which, of course, will not happen). The best we can hope for is that it will continue to drift into irrelevance.

Most disturbingly, the Baker-Christopher Commission proposed a new layer of Congressional bureaucracy with “a permanent, bipartisan staff.” This seems eerily familiar to the intelligence reforms of the mid-1970s which created the House and Senate intelligence committees and permanent staff. This new oversight regime proceeded to transform the Central Intelligence Agency into the moral equivalent of the Department of Agriculture, but with more PhDs. Risk averse and bureaucratically ossified, a once semi-effective agency became the sclerotic bureaucracy that went on to fail the nation time and again. Is this what we want for the most important authority granted to the national government: the authority to use force?

War by committee would have disastrous consequences for the ability of the United States to defend its interests. The key drafters of the Constitution had their differences on many issues, but they shared the belief that the prosecution of war required unity of command; command which was characterized by “secrecy and dispatch.” Except for the most extreme strict constructionists, they all agreed that the President, as Commander in Chief, and with the authority to “preserve, protect, and defend” the Constitution, was authorized to engage U.S. forces without a formal declaration of war. Even Jefferson, who talked one way and acted another, accepted this view. Their predecessors shared this view as well, as our nation has had five declared wars in its history, but well over 200 instances of the use of force. Broad interpretations of executive power to deal with national security matters bolstered the actions of such presidents as Abraham Lincoln and Franklin Roosevelt. This type of forceful executive leadership was a major factor in the 20th century triumph of the United States over fascism and communism.

The language in Article I of the Constitution giving the power to Congress to “declare war” rather than “make war” was a recognition on the part of the founders that the nation simply could not afford a repeat of the disastrous experience of the American Revolution, when the nation attempted to conduct a war by committee. This language was intended to differentiate the new regime from the Articles of Confederation; it was an attempt to ensure that nation would avoid repeating the near-fatal experience of foot-dragging on appropriations, the constant leaks of information, the pressure to appoint “political” officers, and on and on, that characterized the Congress’s conduct of the American Revolution. General Washington’s letters to Congress throughout the Revolution were filled with pleas for men, money and supplies, and his frustration was quite evident. The delays associated with the approval and delivery of Congressionally authorized funds forced Washington to use private and foreign money, as well as to unilaterally transfer funds designated by Congress for other purposes. Washington, Hamilton, Madison, and others, hoped to infuse enough “energy” into the newly created government to avoid these pitfalls, and part of that plan involved an executive with genuine powers to preempt or repel foreign attacks.

Nonetheless, Congress was granted ample powers by the founders to exert itself in the war powers arena, and it can use the tools it already possesses if it wishes to assert itself. Those tools range from its appropriations power, its power to “provide for the common defense” including “rais[ing] and support[ing] armies,” its confirmation power over executive branch appointments, all the way to the nuclear option, impeachment. It also has the option of deferring to the executive over the use of force, an option it frequently exercises. But there is nothing to prevent Congress from halting a war it opposes. There may be ample political reasons to avoid halting a conflict, but if for political reasons it chooses not to, then one should not expect that fine-tuning the system with additional committees and parchment barriers will prove an effective substitute for Congressional courage.

It should be noted that the notion that Congress is a bastion of prudence and restraint and that the executive branch intrinsically itches for battle is misguided. Throughout the 19th century, Congress lobbied for an aggressive policy toward Native Americans in countless instances involving westward expansion. The War of 1812, the Spanish American War, and the Panama Invasion of 1989 (Operation Just Cause) were all Congressionally-driven wars. The War Hawks in Congress pressured a reluctant President Madison to seek a declaration of war in 1812; President McKinley in 1898 favored a peaceful resolution to the Cuba “problem” but was pressured by the press and members of Congress to go to war; and both the Reagan administration and the Bush (41) administrations were repeatedly attacked by Congressional Democrats for allowing an “indicted drug kingpin,” Manuel Noriega, to roam free. Congress pressured both administrations to bring Noriega to justice by any means necessary, while the resistance to using force in Panama was found primarily in the executive branch.

Executive power over the use of force has been abused, but, to borrow a phrase, the power to do good is always the power to do evil. Think of Franklin Roosevelt’s actions prior to the formal U.S. entry into the Second World War—should he have consulted every time he took a step, the right step, to engage the United States in a war in Europe? How would a “Permanent War Powers Congressional Staff” have reacted to FDR’s actions at a time when public opinion was opposed to American entry in the war?

Granted, this is a tough time to be making the case for presidential power; clearly this administration has made its share of mistakes. But as the old maxim states: bad cases make bad law. Let’s leave well enough alone. Congress has the tools it needs under the existing Constitution to exert itself if it chooses to do so. Let’s try something unusual—let the Constitution work as it was intended, and avoid passing legislation designed to codify into law a power, ultimately a purely political power, that is impervious to legalistic tinkering.

Stephen F. Knott is an Associate Professor of National Security Studies at the U.S. Naval War College. The opinions expressed here are his own.

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