Guest Submission by: Zbigniew Mazurak
A C4P Reader recently argued in a Guest Submission that Presidents do have the prerogative to initiate wars unilaterally and that the WPR of 1973 was an unconstitutional overreach by Congress, a violation of the principle of separation of prerogatives. He is wrong, and so are those others who, like John Yoo, argue that the President can indeed initiate wars unilaterally, i.e. without prior Congressional approval.
Yoo, John Tabin of AmSpec, and others who profess such believes rest on only one, already discredited, legal argument: that the Constitution makes the President the military’s supreme commander. They claim this means he can go to war with any country, anytime, for whatever reason, without Congressional approval and without even asking the Congress for opinion. Yet, they’re flat wrong, because the Commander-in-Chief clause of Article 2, Section 2 of the Constitution doesn’t give the President any warmaking prerogatives whatsoever, it merely assigns him the honorary role of the First General of the military. Alexander Hamilton explained in Federalist #69:
“The President is to be the commander-in-chief. In that role, his Power 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.”
Thus, Hamilton said explicitly that decision on whether, when, and against whom to declare war are reserved to the Legislature (i.e. the Congress). Indeed, the Founding Fathers had enough wars declared unilaterally by British kings, so they ensured that only the Legislature could initiate wars. Thus, the right to declare war has been vested only in the Congress (Article 1, Section 8 of the Constitution), and no one else.
Hamilton’s fellow Constitution signatory, the document’s principal author, James Madison, also explained that the Constitution reserves exclusively to the Congress the right to initiate wars. Yoo and others, including many self-appointed “constitutional experts” invited to comment on this issue by the NRO, claim that the Declare War Clause merely authorizes the Congress to change the legal relations between the US and foreign countries, but they’re
From what Hamilton and Madison said, it’s clear that it also gives the Congress, and only the Congress, the right to initiate actual hostilities. Madison even proclaimed that in no part of the Constitution ”is more wisdom to be found” than in the one which entrusts the question of war and peace exclusively to the Congress. The Father of the Constitution explained that had this question been reserved for the President, the temptation for any one man to go to war would be too great. Madison further stated that:
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.
These words from the Constitution’s authors, who also authored the Federalist Papers, the most authoritative source of the true meaning of the Constitution, belie the claims of those like John Yoo who believe the President (or only the President) can start wars. Essentially, these people are claiming that they know the correct meaning of the Constitution better than the men who wrote it. Of course, such claims are ludicrous.
Ironically, the same Barack Obama who now claims a constitutional prerogative to unilaterally go to war denied in 2007 that the President has such a prerogative, saying: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
Some people also criticize the War Powers Resolution of 1973 as an overreach by the Congress, or even an unconstitutional law. It isn’t. The Congress acted within its limits, pursuant to its lawmaking prerogatives under Article I of the Constitution, to specify under what circumstances could the President unilaterally send American troopers into battle. And the conditions are very generous: even if America itself is not attacked, the President can still initiate hostilities unilaterally – provided there is an imminent threat to the United States, its citizens, or its crucial interests.
But no such conditions were met in Libya, as opposed to many of the countries where previous Presidents intervened militarily without Congressional approval.
Some argue that the Quasi War with France and the intervention against Barbary Pirates, which were not authorized by the Congress, were legal precedents legalizing unauthorized Presidential interventions. But they’re wrong. The French Navy, French privateers, and Barbary pirates were frequently attacking American ships during these periods; thus, the French and the Barbary Pirates were the aggressors; that is, they started the hostilities. Therefore, the Congress didn’t need to declare war, since America’s enemies had already attacked American ships, thus committing acts of war.
Some others invoke past unilateral presidential interventions such as the Korean War as precedents legalizing Obama’s illegal war against Libya. They are not. Past wrongdoings don’t legalize new wrongdoings. Past violations of the Constitution don’t legalize new ones.
Last but not least, as James Antle of AmSpec rightly argues, conservatives who argue that Obama’s latest intervention against Libya is unconstitutional are doing the conservative cause, and the cause of strict constructionism, a great disservice. One cannot credibly argue that Obama’s socialized medicine scheme is unconstitutional, but his bombing of Libya is not; that EPA CO2 emission standards violate the Constitution, but undeclared wars waged for “humanitarian reasons” do not. Conservatives must argue constitutionally-consistent arguments.
Either the federal government is one of limited, enumerated prerogatives, or it isn’t.
The Constitution is crystal clear: you are not allowed to go to war without a Congressional Declaration of War.