How the White House Hijacked the Ability to Declare War
We are long past the point at which constitutional arguments have much hope of restraining the American political class, either at home or abroad. They are still worth making, though, since they serve to show the two major parties’ contempt for American law and tradition.
Ever since the Korean War, Article II, Section 2 of the Constitution — which refers to the president as the "Commander in Chief of the Army and Navy of the United States" — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress. But what the framers meant by that clause was that once war has been declared, it was the President’s responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have "the direction of war when authorized or begun." The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to "declare" war, not to "make" war, which was thought to be a necessary emergency power in case of foreign attack).
The Framers of the Constitution were abundantly clear in assigning to Congress what David Gray Adler has called "senior status in a partnership with the president for the purpose of conducting foreign policy." Consider what the Constitution has to say about foreign affairs. Congress possesses the power "to regulate Commerce with foreign Nations," "to raise and support Armies," to "grant Letters of Marque and Reprisal," to "provide for the common Defense," and even "to declare War." Congress shares with the president the power to make treaties and to appoint ambassadors. As for the president himself, he is assigned only two powers relating to foreign affairs: he is commander-in-chief of the armed forces, and he has the power to receive ambassadors.
At the Constitutional Convention, the delegates expressly disclaimed any intention to model the American executive exactly after the British monarchy. James Wilson, for example, remarked that the powers of the British king did not constitute "a proper guide in defining the executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace." Edmund Randolph likewise contended that the delegates had "no motive to be governed by the British Government as our prototype."
To repose such foreign-policy authority in the legislative rather than the executive branch of government was a deliberate and dramatic break with the British model of government with which they were most familiar, as well as with that of other nations, where the executive branch (in effect, the monarch) possessed all such rights, including the exclusive right to declare war. The Framers of the Constitution believed that history amply testified to the executive’s penchant for war. As James Madison wrote 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, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."
At the Constitutional Convention, Pierce Butler "was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it." Butler’s motion did not receive so much as a second.
James Wilson assured the Pennsylvania Ratifying 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: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war."
In Federalist #69, Alexander Hamilton explained that the president’s 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."
Abraham Lincoln famously explained the principle this way:
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 you have 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.
According to John Bassett Moore, the great authority on international law who (among other credentials) occupied the first professorship of international law at Columbia University, "There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace."
In conformity with this understanding, George Washington’s operations on his own authority against the Indians were confined to defensive measures, conscious as he was that the approval of Congress would be necessary for anything further. "The Constitution vests the power of declaring war with Congress," he said, "therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure."
The typical neoconservative response to this argument is to claim that the president has sent troops into battle hundreds of times without congressional authorization. A well-known neoconservative whose name I shall mercifully keep to myself made just this argument in his review of my Politically Incorrect Guide to American History.
Let’s see how well the claim stands up.
Supporters of a broad executive war power have sometimes appealed to the Quasi War with France, in the closing years of the eighteenth century, as an example of unilateral warmaking on the part of the president. Francis Wormuth, an authority on war powers and the Constitution, describes that contention as "altogether false." John Adams "took absolutely no independent action. Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war; and Adams complied with these statutes." (Wormuth’s reference to the Supreme Court recalls a decision rendered in the wake of the Quasi War, in which the Court ruled that Congress could either declare war or approve hostilities by means of statutes that authorized an undeclared war. The Quasi War was an example of the latter case.)
Consider an interesting and revealing incident that occurred during the Quasi War. Congress authorized the president to seize vessels sailing to French ports. But President Adams, acting on his own authority and without the sanction of Congress, instructed American ships to capture vessels sailing either to or from French ports. Captain George Little, acting under the authority of Adams’ order, seized a Danish ship sailing from a French port. When Little was sued for damages, the case made its way to the Supreme Court. Chief Justice John Marshall ruled that Captain Little could indeed be sued for damages in the case. "In short," writes Louis Fisher in summary, "congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander in Chief, are subject to restrictions imposed by Congress."
Another incident frequently cited on behalf of a general presidential power to deploy American forces and commence hostilities involves Jefferson’s policy toward the Barbary states, which demanded protection money from governments whose ships sailed the Mediterranean. Immediately prior to Jefferson’s inauguration in 1801, Congress passed naval legislation that, among other things, provided for six frigates that "shall be officered and manned as the President of the United States may direct." It was to this instruction and authority that Jefferson appealed when he ordered American ships to the Mediterranean. In the event of a declaration of war on the United States by the Barbary powers, these ships were to "protect our commerce & chastise their insolence — by sinking, burning or destroying their ships & Vessels wherever you shall find them."
In late 1801, the pasha of Tripoli did declare war on the U.S. Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense"; Congress alone could authorize "measures of offense also." Thus Jefferson told Congress: "I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight."
Jefferson consistently deferred to Congress in his dealings with the Barbary pirates. "Recent studies by the Justice Department and statements made during congressional debate," Fisher writes, "imply that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison. Congress passed legislation in 1802 to authorize the President to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean, and adjoining seas. The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port. Additional legislation in 1804 gave explicit support for u2018warlike operations against the regency of Tripoli, or any other of the Barbary powers.’"
Consider also Jefferson’s statement to Congress in late 1805 regarding a boundary dispute with Spain over Louisiana and Florida. According to Jefferson, Spain appeared to have an "intention to advance on our possessions until they shall be repressed by an opposing force. Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force…. But the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny. To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue, and will pursue with sincere zeal that which they shall approve."
The nineteenth century, on closer inspection, turns out not to provide the precedents for presidential warmaking that its proponents would prefer to see. We don’t see anything approaching the open-ended and truly staggering authority that neoconservatives would grant the president until the closing years of that century, and even then only in miniature.
Cornell University’s Walter LaFeber pinpoints the origins of modern presidential war powers in an obscure incident from 1900. In 1898 a group of anti-foreign Chinese fighters known to the West as the Boxers rose up in protest against foreign exploitation and extraterritorial privileges in their country. They targeted Christian missionaries and Chinese converts, as well as French and Belgian engineers. After the German minister was killed in 1900, several nations sent troops to restore order amid the growing terror. McKinley contributed 5,000 American troops. This apparently minor action, however, was pregnant with consequences, as LaFeber observes:
McKinley took a historic step in creating a new, twentieth-century presidential power. He dispatched the five thousand troops without consulting Congress, let alone obtaining a declaration of war, to fight the Boxers who were supported by the Chinese government…. Presidents had previously used such force against non-governmental groups that threatened U.S. interests and citizens. It was now used, however, against recognized governments, and without obeying the Constitution’s provisions about who was to declare war.
Now what of those "hundreds" of cases of presidential warmaking? This argument — surprise — originated with the U.S. government itself. At the time of the Korean War, a number of congressmen contended that "history will show that on more than 100 occasions in the life of this Republic the President as Commander in Chief has ordered the fleet or the troops to do certain things which involved the risk of war" without the consent of Congress. In 1966, in defense of the Vietnam War, the State Department adopted a similar line: "Since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with the undeclared war’ with France (1798—1800)."
We have already seen that the war with France in no way lends support to those who favor broad presidential war powers. As for the rest, the great presidential scholar Edward S. Corwin pointed out that this lengthy list of alleged precedents consisted mainly of "fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like."
The neoconservative argument, therefore, is based on ignorance or dishonesty. There is no third possibility. To support their position — although for obvious reasons they don’t put it quite this way — they are counting chases of cattle rustlers as examples of presidential warmaking, and as precedents for sending millions of Americans into war with foreign governments on the other side of the globe. No comment really seems necessary.
Consider, on the other hand, the words of Senator Robert A. Taft in 1951: "My conclusion, therefore, is that in the case of Korea, where a war was already under way, we had no right to send troops to a nation, with whom we had no treaty, to defend it against attack by another nation, no matter how unprincipled that aggression might be, unless the whole matter was submitted to Congress and a declaration of war or some other direct authority obtained."
Taft, some readers will recall, was known in his day as "Mr. Republican." There’s yet another way in which the world has been turned upside down.