In Part One of this series, I discussed the need for Congressional investigations into the origins of the Iraq War, and the right (indeed the obligation) of Congress to withdraw the authority granted to President Bush in the Iraq War Resolution as the clearest path to effecting the withdrawal/re-deployment of US forces from Iraq.
In this Part Two, I take up the question of whether Congress can lawfully withdraw Bush’s authority to deploy troops to Iraq which erroneously was granted in 2002 under the false pretenses and distorted intelligence used by the Bush administration to justify passage of the Iraq War Resolution.
(Cont.)
The Constitutional Argument for Revoking the Iraq War Resolution
Only Congress has the power to declare war. That’s a “known known” as Rumsfeld likes to say. While there are no clauses in the Constitution that specifically address the President’s war powers, there are several in Article I that deal expressly with Congress’ role:
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; …
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. …
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
Compare that with the enumerated powers of the President in Article II of the Constitution, which make no mention of war whatsoever.
Nonetheless, like all American military conflicts in the post-WWII era, Congress did not declare war against Saddam Hussein’s regime in Iraq, nor did anyone, including the President formally propose such a declaration. What it did do was pass a resolution authorizing President Bush to use military force against Iraq in the event certain specific conditions were satisfied. This Iraq War Resolution was passed into law in accordance with section 8(a)(1) of the War Powers Resolution of 1973,and, I might add, the authority it provided to President Bush was expressly sought by his administration.
The War Powers Resolution was passed in 1973 in reaction to the manner in which the United States committed forces to Vietnam despite the absence of any formal declaration of war. It was intended to ensure that future presidents could not simply deploy the US military in foreign military conflicts without first consulting Congress and receiving its authorization. By its terms, the War Powers Resolution excludes the need to seek Congressional authorization to use military force in the event of a national emergency created by an attack on the United States.
While many Presidents, including Bush, have taken the position that the War Powers Resolution is an unconstitutional infringement on their executive power, the Courts have never had to address the issue, in large part because Presidents have sought Congressional authorization for any large deployment of US troops to foreign war zones (i.e., The First Gulf War, and the Iraq War) prior to the outbreak of hostilities. Obviously, no American President, including Bush, has been willing to test the claim that the War Powers Resolution is unconstitutional with respect to situations in which significant numbers of US forces have been engaged in “major combat operations” on foreign soil.
And our presidents have had good reason to be so circumspect regarding Congress’ assertion of its authority under the War Powers Resolution. Our Constitution expressly provides that only Congress has the power and the right commit our country’s military forces to war. The founding fathers chose the Congress to be the arbiter in matters of war because they feared placing that power in the hands of any single individual, regardless of how esteemed his reputation, lofty his intellect or trustworthy his character. For those who doubt that fact, let me refer you to the following statement from the Federalist Papers regarding the inherent danger of permitting a country’s executive to determine when to fight a war:
It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
John Jay in Federalist No. 4
Here is how Alexander Hamilton described the difference between the war powers of the President and those of the Congress:
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.
Alexander Hamilton in Federalist No. 69
In short, the founding fathers did not view the scope of the President’s power to conduct war as broadly as Mr. Bush and his supporters would like it to be. As demonstrated in the excerpts from the Federalist Papers cited above, Jay and Hamilton held that the President’s authority and power regarding matters of war were inferior to that of the Congress. Congress has the power to declare war, to raise armies and to determine the manner in which they may be used, or not used. The President’s authority over our military forces does not extend to the right to commit them to wars of his choice, nor does he have the power to fund, raise and regulate our armed forces on his own initiative. That is solely the prerogative of Congress. In the absence of either Congressional authorization or an attack on the United States by a hostile power, the President may not choose to engage our armed forces in hostilities. Once that authorization is granted, however, he may, in his role of Commander-in-Chief, determine how best to carry out his mandate from Congress until such time as that authorization is withdrawn.
Some contend that a President’s power when he is acting in his capacity as Commander-in-Chief is very broad, and cannot be limited by any act of Congress. The argument for such an expanded interpretation of Presidential power usually begins by claiming that the position of the President in military matters is sui generis and that when defending America from its enemies, his power is at its zenith. In short, this view, sometimes referred to as the “unitary executive” theory believes that in matters pertaining to our national security the power of the executive branch is essentially unfettered and cannot be limited or circumscribed in any manner by Congress.
The problem with this argument is that it confuses the power of the President to deploy our armed forces to defend America, with the right to determine who are America’s enemies, and against which of those enemies the full force of America’s military might may be brought to bear. Despite what many believe the Constitution is quite stingy in this regard. The last thing the founders wanted to establish in the Constitution was a President who retained the sole power to decide when, where and against whom America’s military could be employed. They regarded granting such power to any one man as both dangerous and unwise. Here is what the Constitution they drafted says about the scope of Presidential power in war time:
… Before [the President] enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
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 …
That’s all there is. A fairly short list. Nothing about protecting America, or defending its citizens. No, the President’s obligation is to “preserve, protect and defend” the Constitution. Now, obviously this doesn’t mean that the President should standby helplessly in the event of invasion or insurrection. He is the embodiment of the federal government’s executive power, and as such is obligated to fulfill the responsibilities of that government, which, unsurprisingly do include protecting any state in the union against invasion (Article IV, Section 4).
But the President’s obligation to defend America from an invasion does not carry with it a concomitant right to wage war overseas against a foreign power at his sole discretion, particularly when that foreign entity poses no imminent danger of an attack against the people or territory of the United States. The two are not flip sides of the same Presidential coin. The President has the power to conduct our nation’s wars, but not the power to declare war against whomever he chooses.
Consider for a moment this hypothetical from the Cold War era in our history. The Soviet Union, with its massive military and nuclear arsenal clearly posed a significant threat to the security of the United States and its allies. Yet did anyone at that time ever seriously suggest that the President had, in his sole discretion, the authority to initiate an unprovoked first strike nuclear attack on Soviet military installations in order to eliminate this threat? And what if Nixon or Johnson or Reagan or Kennedy or any other president had issued such a heinous order? Does anyone seriously believe that, in their role as Commander-in-Chief , ordering a nuclear first strike would have been permitted under the Constitution? Of course not.
That would have constituted a unilateral decision by the President to commence war with the Soviets. In the absence of invasion or imminent attack, the Constitution does not authorize any President to unilaterally decide to initiate hostilities. The entire purpose of establishing Congress as the institution to declare war was to insure that no single individual could ever make that decision on behalf of the United States. Conduct a properly declared war – yes. Commence one without Congressional authorization – no.
The potential threat that the Soviet Union posed to our national security was much greater than the current threat posed by terrorists to our nation’s security, and certainly a far greater than any threat Saddam Hussein posed in 2003 to your loved ones and mine. Yet, the Bush administration’s official position regarding the President’s war making authority consistently denies that the express language of Article I, Section 8, which delineates the powers of Congress, and which specifically reserves to Congress the responsibility to declare war, is a limitation on the President’s own war powers. To Bush’s supporters, it’s as if the powers expressly granted to Congress, and not to the President are meaningless. They would have us essentially nullify the effect of that clause in Article I, while simultaneously finding that the responsibility to commence war had been implicitly granted to the President under Article II.
It’s an absurd claim on its face. Neither logic nor common sense nor the historical record supports this position. To give you some idea of how absurd it truly is consider the following thought experiment. Imagine, if you will, the outcry that would ensue if the executive branch claimed the right to unilaterally impose taxes despite the express reservation of that power to Congress which is also included in Article I, Section 8. After all, all of the executive power of the government is invested in him under Article II, Section 1. Who’s to say that his executive authority doesn’t extend to taxation, as well? Just because the Congress has been granted the power to “lay and collect taxes” should be no limitation on the Presidential authority to do so as well. Right?
Any President who made such a claim would be laughed out of court, because the argument is clearly specious. Yet that is precisely the argument that Professor Yoo and his fellow travelers on the authoritarian right make when it comes to President Bush’s alleged right to commit our troops to foreign wars without the approval of Congress. Yoo, et al., make the leap of faith that the men who drafted the Constitution did not really intend for Congress to have the full power to declare war explicitly granted in Article I, despite the plain meaning of the language assigning that responsibility to the Legislative branch.. Furthermore, they then go on to argue that these same authors of the Constitution instead intended to implicitly grant full war making powers to the President despite the fact that nowhere in Article II are those powers specifically described.
The entire argument is an exercise in Orwellian linguistics, where black = white, and day = night. It is not an argument with which James Madison would have found much to agree:
In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war and peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man.
Madison, James. Letters & Other Writings Of James Madison Fourth President Of The United States Edited by William C. Rives & Philip R. Fendall, 4v (1865)
As Madison notes, the power to declare war also encompasses the power to terminate hostilities. The President may direct the conduct of the war which Congress has authorized him to make, but he may not continue to wage war once that authorization is annulled. His power is limited to the right to decide on how best to conduct military operations to meet the responsibility entrusted to him by the Legislature. The decision to commence or end hostilities is not his prerogative, however, but is expressly retained by Congress. Only that body has the right and the duty to make those ultimate decisions, in the absence of a true national emergency, such as an invasion or insurrection.
