Jim Stillman
NevarWar: a shared responsibility
November 2nd 2007 13:12
An excellent post was published by Gina-Marie Cheeseman on her site, politicsandculture.net, discussing the resolution pending in Congress which would address the respective roles of the Legislative and Executive in the conduct of war.
Ms Cheeseman concludes:
The resolution would amend the “War Powers Resolution” in order to insure decisions regarding war are made by both the president and the congress. The War Powers Act of 1973 limits the president’s power to conduct war without the approval of congress.
Constitutional war powers are divided between the congress and president. Congress has the power to declare war and manage the defense funding. The president is the commander-in-chief.
I would like to expand on her thesis.
There has been a divergence of opinions regarding the power of the Congress and the President with regard to the "waging" of war under Articles I and II of the Constitution. What should be a simple enough discussion and answer has become contentious.
Article II of the Constitution is clear: "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; . . ."
Article I of the Constitution grants the Legislature the power and sole authority to: declare war, raise and support armies and to provide and maintain a navy, to make Rules for the government and regulation of the land and naval forces.
As Fred Barbash has discussed in the Washington Post, the Senate has conducted hearings on several non binding resolutions on the president's plan for a troop buildup in Iraq. As the battle is joined, both houses of Congress need to be reminded that the stakes go well beyond this particular buildup, this particular war and even this particular presidency.
At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the "battlefield" over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by occupants of the White House yet unborn, armed with the precedents being set right now.
In these issues, there is no option for inaction; in a contest between two branches of the federal government over separation of powers, silence is as powerful and effective as words.
That's because the Supreme Court rarely involves itself in disputes between Congress and the executive, expressly making it a two-way conversation -- a "shared elaboration" or "shared dialogue" in the words of scholars -- between the elected branches. When one branch drops out by failing to respond, the other branch effectively sets the precedent, which is passed along to the next generation and the generation after that.
Inaction strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it's as good as law.
This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be determined, framed and settled exclusively by the executive branch.
Now, people who know better show no surprise at the notion that Congress's only war-related authority is the power of the purse. Timid requests for legislative involvement are ridiculed and caricatured as "micromanagement" or, worse, as comforting the enemy.
It's as if there is nothing left to argue about -- except, of course, there is, though it seems so elementary.
War is a shared responsibility.
The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to "make war."
The delegates changed the wording to "declare war," not to remove Congress from the process but to leave the commander in chief the "power to repel sudden attacks," as James Madison put it. "The executive should be able to repel and not to commence war," agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because "no executive would ever make war but when the nation will support it," another delegate remarked.
Oops!
This is not to say that this position cannot be argued; for the past number of years, however, Congress has chosen to acquiesce in the Executive's usurpation of the war powers. There has been some prodding from the Courts. In Hamden v. Rumsfeld, in 2004, the majority held that there was a right of review by a neutral forum available to a citizen who had been detained by the military.
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . .The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties.
In a dissent, Justices Scalia (known for his usually pro-administration positions) and Stevens framed the issue of Executive and Legislative duties, powers and responsibilities. Scalia noted that the Founders mistrusted military power "permanently at the executive's disposal."
"Many safeguards in the Constitution reflect these concerns," he said, including expressly involving Congress in the war-making function. Scalia noted "except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II."
Scalia also scolded Congress for its "lassitude" on the topic. "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges,";["In time of war, laws are silent.] he wrote. "Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
So here we are. Over the past years, Congress has given the Executive a "blank check".
President Bush sought, received and expanded upon the 1964 Gulf of Tonkin Resolution which gave him approval, without a formal declaration of war, “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to- (1) defend the national security of the United States against the continuing threat posed by Iraq. . ."
The resolution was clear as to the bases of the authorization; Iraq had weapons of mass destruction, was engaged in a nuclear program which was a threat to the United States and its allies, and was allied with Al Qaeda and posed an immediate threat to the Unites States. Each and every one of these bases has been demonstrated to be without foundation.
Congress, however, willingly forfeited its role in the commencement and management of war.
Members of Congress, especially those who yearn for higher office, state regrets that the resolution was passed but this was their choice.
It is not too late to re-examine past positions for the sake of generations yet to come.
If we feel the current president has exceeded a reasonable degree of discretionary authority, a future president armed with precedent could do far more harm.
The constitutional roles of the Legislature and the Executive must be re-established.
Ms Cheeseman concludes:
The resolution would amend the “War Powers Resolution” in order to insure decisions regarding war are made by both the president and the congress. The War Powers Act of 1973 limits the president’s power to conduct war without the approval of congress.
Constitutional war powers are divided between the congress and president. Congress has the power to declare war and manage the defense funding. The president is the commander-in-chief.
There has been a divergence of opinions regarding the power of the Congress and the President with regard to the "waging" of war under Articles I and II of the Constitution. What should be a simple enough discussion and answer has become contentious.
Article II of the Constitution is clear: "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; . . ."
Article I of the Constitution grants the Legislature the power and sole authority to: declare war, raise and support armies and to provide and maintain a navy, to make Rules for the government and regulation of the land and naval forces.
As Fred Barbash has discussed in the Washington Post, the Senate has conducted hearings on several non binding resolutions on the president's plan for a troop buildup in Iraq. As the battle is joined, both houses of Congress need to be reminded that the stakes go well beyond this particular buildup, this particular war and even this particular presidency.
At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the "battlefield" over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by occupants of the White House yet unborn, armed with the precedents being set right now.
In these issues, there is no option for inaction; in a contest between two branches of the federal government over separation of powers, silence is as powerful and effective as words.
That's because the Supreme Court rarely involves itself in disputes between Congress and the executive, expressly making it a two-way conversation -- a "shared elaboration" or "shared dialogue" in the words of scholars -- between the elected branches. When one branch drops out by failing to respond, the other branch effectively sets the precedent, which is passed along to the next generation and the generation after that.
Inaction strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it's as good as law.
This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be determined, framed and settled exclusively by the executive branch.
Now, people who know better show no surprise at the notion that Congress's only war-related authority is the power of the purse. Timid requests for legislative involvement are ridiculed and caricatured as "micromanagement" or, worse, as comforting the enemy.
It's as if there is nothing left to argue about -- except, of course, there is, though it seems so elementary.
War is a shared responsibility.
The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to "make war."
The delegates changed the wording to "declare war," not to remove Congress from the process but to leave the commander in chief the "power to repel sudden attacks," as James Madison put it. "The executive should be able to repel and not to commence war," agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because "no executive would ever make war but when the nation will support it," another delegate remarked.
Oops!
This is not to say that this position cannot be argued; for the past number of years, however, Congress has chosen to acquiesce in the Executive's usurpation of the war powers. There has been some prodding from the Courts. In Hamden v. Rumsfeld, in 2004, the majority held that there was a right of review by a neutral forum available to a citizen who had been detained by the military.
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . .The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties.
In a dissent, Justices Scalia (known for his usually pro-administration positions) and Stevens framed the issue of Executive and Legislative duties, powers and responsibilities. Scalia noted that the Founders mistrusted military power "permanently at the executive's disposal."
"Many safeguards in the Constitution reflect these concerns," he said, including expressly involving Congress in the war-making function. Scalia noted "except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II."
Scalia also scolded Congress for its "lassitude" on the topic. "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges,";["In time of war, laws are silent.] he wrote. "Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
So here we are. Over the past years, Congress has given the Executive a "blank check".
President Bush sought, received and expanded upon the 1964 Gulf of Tonkin Resolution which gave him approval, without a formal declaration of war, “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to- (1) defend the national security of the United States against the continuing threat posed by Iraq. . ."
The resolution was clear as to the bases of the authorization; Iraq had weapons of mass destruction, was engaged in a nuclear program which was a threat to the United States and its allies, and was allied with Al Qaeda and posed an immediate threat to the Unites States. Each and every one of these bases has been demonstrated to be without foundation.
Congress, however, willingly forfeited its role in the commencement and management of war.
Members of Congress, especially those who yearn for higher office, state regrets that the resolution was passed but this was their choice.
It is not too late to re-examine past positions for the sake of generations yet to come.
If we feel the current president has exceeded a reasonable degree of discretionary authority, a future president armed with precedent could do far more harm.
The constitutional roles of the Legislature and the Executive must be re-established.
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Comment by Damo
The legal checks and balances were thrown out of tilt with the War on Terror.
Constitution are legal documents with one major limitations. They are only made of paper and people must inforce them. Plenty of nations have torn up well written constitutions to suit short term goals. Others treat it as Holy Writ expecting it to operate by itself. Quoting a constitution like a Bible ignors many interpretations possible on each passage. Even Bibles can be interpreted to cause havok.
The problem is there is a lot of trust in those who are in positions of power not to abuse that power.