Legislative War Authority
The president's authority as Commander in Chief gives him full power to protect U.S. troops in the field. But could he exercise that authority if the troops fighting in Southeast Asia were not deployed legally in the first place? The 1964 Gulf of Tonkin Resolution gave congressional support to President Johnson's use of "all necessary measures to repel any armed attack against the forces of the United States." The dissenters argue, of course, that Congressmen who voted for the resolution after a reported enemy attack on two U.S. destroyers never intended it to be a de facto declaration of war. Though Congress has also voted to equip troops under fire, the critics add, it is unfair to conclude that Congress thus approves of the war.
These arguments may never be settled. More important, many dissidents argue that usurpation of congressional power has been going on not just for months but for decades. Undoubtedly, the speed with which crises develop in the modern world necessitates a strong executive who can respond quickly. The real question is whether the balance has shifted too far in favor of the executive.
When the constitutional drafters met in Philadelphia in 1787, they deliberately denied U.S. Presidents the kind of unfettered war power that European kings enjoyed. Instead, they gave Congress authority to "declare" war, "raise and support armies," make military appropriations for a period no longer than two years, and "provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions."
The only exceptions to legislative war authority were intended to be narrow: the framers made 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." They also refrained from giving Congress the power to "make" war−a more comprehensive authority than the power to declare it.
According to James Madison, the President would thus have "power to repel sudden attacks." To many scholars the implication is clear. The President was to initiate emergency defensive operations; Congress was to remain responsible for all offensive ones. Said Thomas Jefferson: "We have given one effectual check to the dog of war by transferring the power of letting him loose from those who are to spend to those who are to pay."
In the early days of the Republic, the founders' system was honored, as Presidents sought congressional permission for military moves abroad−if not always formal declarations of hostility. During the so-called "undeclared war" with France between 1798 and 1800, Congress authorized naval seizures of American merchant ships going to French ports. But President John Adams went further and ordered the seizure of American ships leaving those ports as well, and the Supreme Court held that he had exceeded the intent of Congress.
As Administration defenders often note, President Jefferson felt free to send naval vessels to protect U.S. ships against the Barbary pirates. Nonetheless, Jefferson carefully refused to allow his commanders to hold even captured pirate vessels until Congress had approved action "beyond the line of defense."
Later Presidents often continued to get at least some form of authorization from Congress before taking major military plunges, but their area of discretion slowly enlarged. In 1911, President William Howard Taft moved 20,000 troops to the Mexican border to protect American lives and property threatened by the Mexican revolution−but recognized congressional jurisdiction by refusing to send forces over the boundary.
Throughout the history of the U.S.A. under the Federal Constitution, there have been hundreds of instances in which the nation's Armed Forces, operating solely on the basis of presidential orders and without the benefit of congressional declarations of war, were engaged in military conflict abroad. While most of these undeclared conflicts were short rather than protracted engagements, each beginning and ending so quickly that there was no opportunity for congressional consideration and approval of the President's action, Congress has not always declared war when the nation became involved in a longer, more drawn out conflict.
Congress has declared war in only five of the thirteen major shooting wars in which the U.S.A. has been involved. Presidents asked for and received formal declarations for The War of 1812 against Great Britain [1812-1814]*, The Spanish-American War *, The Mexican-U.S.A. War [1846-1848]*, World War I [1917-1918]* and World War II [1941-1945]*.
Even so, the Constitution does not define the difference between war and murky actions short of it. As a result, Chief Executives have felt increasingly free to undertake the military maneuvers required of a major nation. For its part, Congress did not assert authority over such actions as Theodore Roosevelt's military move into Panama in 1903 and Woodrow Wilson's willingness to do what Taft would not−send troops to chase Pancho Villa's raiders in Mexico in 1916.
In each of the eight other major wars involving the U.S.A., Congress did not pass a declaration of war and the President did not recommend to Congress that it pass such a declaration. The U.S. naval war with France [1798-1800]*; The first war against the Barbary pirate states of North Africa [1801-1805]*; The second war against the Barbary states *; The Mexican-U.S.A. conflicts immediately preceeding American entrance into World War I [1914-1917]*; The Korean War [1950-1953]*; The Vietnam War [1961-1975]*; The Persian Gulf War *, and The Kosovo-Yugoslav War *. (*Dates of America's direct involvement in the war.)
Bipartisan congressional support for an anti-Communist foreign policy after World War II accelerated the trend toward presidential war power. By the time Truman dispatched troops to Korea, Ohio's Senator Robert Taft was almost alone in complaining that the President, by his undeclared "police action," had "usurped authority in violation of the laws and the Constitution." All told, it has been calculated, U.S. Presidents have ordered troops into position or action without a formal congressional declaration a total of 149 times.
All this raises several fascinating questions. In the past, congressional authorizations and resolutions short of a declaration of hostilities have been sufficient for Presidents to commit troops to military actions bearing many hallmarks of full-scale war. Is there a point at which an expanding nonwar becomes a real war that must be declared in order to be legal? Congress has rarely been concerned with providing the answer. Does this mean that Congress has now effectively construed the Constitution to mean that, in military engagements, once a nonwar always a nonwar? If so, must Congress follow its own precedents?
Liberals who long dismissed Congress as retrograde and favored "power to the President," as Columbia Law Professor Tom Farer puts it, are now defending congressional wisdom. Longtime advocates of pragmatic interpretation of the Constitution are now becoming staunch strict constructionists.
More important, the President's critics argue that a democracy's war actions must not only be legal but also widely supported. Few deny that the President must be free to respond to surprise attacks or support engaged troops. But when there is time for congressional debate, the critics contend the military and diplomatic inconveniences of delay are small enough prices to pay for ensuring that the U.S. will not be drawn into risky involvements until the nation has had a chance to grasp what is at stake.
Congressmen set out to reclaim the warmaking power. In 1973, Congress passed the War Powers Resolution over Richard Nixon's veto. Its major provisions: the President, whenever possible, must consult Congress in advance before sending military forces into any situation where fighting seems "imminent"; in any case, he must notify the legislature within 48 hours. Congress then must specifically authorize the continued deployment of troops, planes or warships within 60 days. If it does not, the President must pull the forces out of harm's way.
The resolution, however, is vague (there is no definition of imminent), and some respected critics question its constitutionality. Presidents have complied with its letter but not its spirit. Jimmy Carter in 1980 notified Congress of his attempt to rescue the hostages in Iran only after the mission ) had been launched and aborted, leaving eight servicemen dead. Ronald Reagan "consulted" leaders of Congress about the U.S. air strike against Libya only after the bombers were in the air and nearing their targets.
The Administration spelled out to Congress the "rules of engagement" under which warships sent to the Persian Gulf would be allowed to open fire. But Reagan has rejected advice to seek congressional approval for his plan under the War Powers Resolution. His contention is that no hostilities involving U.S. forces seem imminent. Congress, for its part, has been caught in a terrible dilemma. Despite deep misgivings, it approved Reagan's ill-fated dispatch of Marines to Lebanon, lest it undermine the President's ability to conduct a credible foreign policy.
For 200 years the nation has been relying largely on a hope voiced by Pierce Butler of South Carolina during the Constitutional Convention. The President, said Butler, "will not make war but when the nation will support it." Not deliberately, but Presidents do make disastrous misjudgments, and it may be impossible to write legislation that will prevent them from doing so without curbing their necessary freedom of action.
The solution, if there is one, lies in that slender but sturdy reed, common sense. The President must genuinely consult Congress before taking any military action that might bring war. Congress must curb both its penchant for leaking secrets and its disposition to delay endlessly when fast action is needed - but must also summon the nerve to say no to a President who simply refuses to take its advice.
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