A U.S. president
has attacked another country, so its time for the scam artists
to pull out their fake constitutional arguments in support of
our dear leader. Not all of them are doing so, to be sure
in fact, its been rather a hoot to hear supporters of the
Iraq war suddenly caterwauling about the Constitutions restraints
on the power of the president to initiate hostilities abroad.
But Im told that radio host Mark Levin criticized Ron Paul
on his program the other day on the precise grounds that the congressman
didnt know what he was talking about when it came to war
powers and the Constitution.
its time to lay out all the common claims, both constitutional
and historical, advanced on behalf of presidential war powers,
and refute them one by one.
president has the power to initiate hostilities without consulting
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 this way.
the framers actually meant by that clause was that once war has
been declared, it was the Presidents 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).
assigned to Congress what David Gray Adler has called senior
status in a partnership with the president for the purpose of
conducting foreign policy. 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.
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 testified to the executives 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. Madison even proposed
excluding the president from the negotiation of peace treaties,
on the grounds that he might obstruct a settlement out of a desire
to derive Power and importance from a state of war.
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. Butlers
motion did not receive so much as a second.
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.
#69, Alexander Hamilton explained that the presidents 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.
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.
with this understanding, George Washingtons 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
Adams made war on France without consulting Congress.
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. (Wormuths 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.)
that occurred during the Quasi War throws further light on the
true extent of presidential war powers. 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 war powers expert 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.
acted unilaterally against the Barbary pirates.
frequently cited on behalf of a general presidential power to
deploy American forces and commence hostilities involves Jeffersons
policy toward the Barbary states, which demanded protection money
from governments whose ships sailed the Mediterranean. Immediately
prior to Jeffersons 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
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.
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