The War Responsibility of Congress

Looking nervously toward the November elections, members of Congress ducked the issue of authorizing U.S. military attacks on targets in Iraq and Syria, but that evasion of responsibility is not what the Founders had in mind, writes the Independent Institute’s Ivan Eland.

By Ivan Eland

President Barack Obama’s claim that he doesn’t need congressional authorization for his current war in Iraq and Syria is troubling. The country’s Founders would pass out upon hearing his claim that the post-9/11 congressional approval of force in 2001 against the perpetrators of those attacks and their abettors and the congressional resolution approving George W. Bush’s invasion of Saddam Hussein’s Iraq in 2003 give him the current authority for a very different war against very different people.

However, Obama is not the first president to believe that he has the rather imperial authority for war by executive fiat. Up until 1950, for major conflicts, presidents followed the nation’s Founders’ intent in the U.S. Constitution to obtain a declaration of war from Congress.

An American flag flying next to the dome of the U.S. Capitol. (Photo credit: Architect of the Capitol)

An American flag flying next to the dome of the U.S. Capitol. (Photo credit: Architect of the Capitol)

For the Korean War, however, Harry Truman, really the first imperial president, decided that this vital constitutional requirement was optional. Unfortunately, as I note in my new book, Recarving Rushmore: Ranking the Presidents on Peace, Prosperity, and Liberty , once a bad precedent is set, meaning that the chief executive gets away with an unconstitutional act, future presidents will cite it in carrying out their own questionable actions.

Over American history, that process has thus resulted in an expansion of presidential power much past what the Founders had envisioned when they wrote their constitutional blueprint. Thinking of the powerful European monarchs of the day, who took their countries to war on a whim and let the costs in blood and treasure fall to their unfortunate citizens, the Founders wanted an executive with severely restricted powers.

Congress was to be the dominant branch of government, and the Executive’s role merely was to narrowly execute and enforce laws passed by that body. Even the president’s commander-in-chief role, much abused by modern chief executives, was to be restricted narrowly to commanding the U.S. military in battle.

In fact, contrary to the conventional belief in Washington and among the American public, the Constitution gives most of the powers in defense and foreign affairs to the Congress, not to the president. The erroneous notion that the chief executive is the “sole organ of American foreign policy,” derives from the non-binding part of a Supreme Court decision in the 1930s (that is, fairly recently).

In the Constitution, the Founders signaled their intent for Congress to approve even minor uses of force by the United States. The document says that Congress will issue letters of marque and reprisal. At the time, letters of marque were issued to private ship captains to raid an enemy nation’s commerce.

So it is curious from his past behavior that Obama, a constitutional lawyer, believes that if he avoids putting “combat troops” on the ground, defining this narrowly to exclude Special Forces hunting terrorists and American military trainers of local forces, and limits his attacks to air strikes, it’s not a real war that would require congressional approval.

Obama’s criterion seems to be that if no Americans would be killed, it’s not a “war” that the Congress needs to bother with authorizing. Yet aircraft can get shot down or malfunction and pilots can be captured or killed. Also, the people being bombed would probably call it a war, and so the people’s representatives in Congress might want to comment on whether the United States should be in a state of hostilities with them.

The people’s representatives don’t always make the right decision, as they didn’t in President James Madison’s pointless War of 1812, James Polk’s war of aggression against the weaker Mexico to steal its land, William McKinley’s colonial Spanish-American War, or Woodrow Wilson’s ruining of the Twentieth Century by American entry into World War I, but they should at least get to vote, as the nation’s Founders intended and the Constitution states.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include Partitioning for Peace: An Exit Strategy for Iraq The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

1 comment for “The War Responsibility of Congress

  1. Zachary Smith
    October 14, 2014 at 21:38

    This brief essay was titled “The War Responsibility of Congress”, but Dr. Eland may as well have used Rush ‘druggie’ Limpaugh’s “The Way Things Ought To Be”.

    Yes, Congress ought to do its job. But no, it doesn’t, and hasn’t issued a Declaration of War since June of 1942.

    The Executive likes it that way, the pusillanimous but calculating Congress likes it that way, and the Supreme Court has carefully dodged the issue for decades.

    So why the grousing? Out here in the sticks us peasants don’t have much leverage.

    I’m guessing the mention of Eland’s book is the main reason for this mini-rant. Possibly some people will decide to buy it, and naturally that’ll cause them to become fanatical Libertarians themselves.

    Now I’ll confess I haven’t read it, and won’t unless I find it discounted about 95%. But if you google the phrase “Recarving Rushmore Reranks American Presidents” you can see Eland’s rankings.

    Did you know Abraham Lincoln was the 29th worst president in US history? (Richard Nixon was #30) Saving the Union and freeing the slaves was NOT very nice.

    On down at position 31 was Franklin Roosevelt. Boy oh boy, but is he a hated guy. Social Security! World War 2!! You see, when you’re wearing your Libertarian blinders, fighting Hitler was a Bad Thing.

    Before purchasing the book though, I’d suggest going to the Independent Institute site and examining the tab titled “Issues”.

    You’ll discover that Libertarians know some things you don’t.

    “Market Forces Should Regulate Smoking” – no damned govmint needed.

    “Economic and Moral Factors in Favor of Open Immigration” – everything I can see about the site convinces me the Libertarians there want totally open borders. Just think about what that’ll do for the out-of-hand demands by uppity employees!

    “What Made the Nazi Holocaust Possible? Gun Control”
    Now this is veering into batshit crazy territory. Yes, he said that if the Jews had been armed, the Holocaust wouldn’t have happened.

    “The Second Amendment Was Not Ratified to Preserve Slavery”
    At the truthout site Thom Hartmann wrote a brilliant essay demonstrating that slavery was indeed the impetus behind the Second Amendment. But this can’t be true because — well, it just isn’t.

    Finally; “But CO2 is not a pollutant—in spite of the claims of the EPA in its “Endangerment Finding,” which has yet to be tested in court. CO2 is not toxic nor irritating nor visible—nor a climate-forcer of any significance, so the idea that we have to stop emitting CO2, or capture and sequester it, is a pure fraud.”

    This essay was about wishful thinking. But the Libertarians allow their fantasies to have a much wider range. Have good and pure thoughts about The Way Things Ought To Be, and those “things” become …. ‘real’.

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