Dr. Staten on "war powers", the Founding Fathers, and our on-going efforts in Iraq

Cliff is a colleague of mine at IUS and I enjoyed his op-ed. Something similar to this appeared in the Jeff/NA News-Tribune on July 13 (but for some reason, it's not available on the website)...

I hadn't read anything this clear and concise-- on the unconstitutional congressional abdication of "war powers"...

With the recent report on the war powers written by former Secretaries of State James Baker and Warren Christopher and in light of some questionable foreign policy powers assumed by President George W. Bush, it is imperative that we review what the Founding Fathers had to say about war powers and foreign policy.

Many legal principles adopted by our Founding Fathers were based on British law and the writings of William Blackstone. Under the British model all aspects of foreign policy were lodged with the King, yet our Founding Fathers rejected this model. George Mason stated that it was not “safe” to trust the President with the war power. Eldridge Gerry stated that he “never expected to hear in a republic a motion to empower the executive alone to declare war.” John Rutledge opposed giving the President the power of “war and peace.” James Wilson argued that the power of war and peace was of a “legislative nature.” James Madison referred to the war power as “the true nurse of executive aggrandizement.” Thomas Jefferson indicated that we must check the “dog of war” by lodging that power with the Congress. Even Alexander Hamilton, the most outspoken advocate of executive power, rejected the idea of giving war powers to the executive branch. James Madison’s statement best conveys the beliefs of our Founding Fathers, “Those who are to conduct a war [the executive branch] cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”

Not surprisingly, the list of presidential foreign policy powers found in the Constitution is short. He can receive foreign ambassadors. He has powers that are shared with Congress: treaties and appointments. The final and most important power is that the President is designated as Commander-in-Chief. All Presidents since WWII have argued that this is their primary source of authority in foreign policy; however our Founding Fathers had a very limited interpretation of this title. Alexander Hamilton stated that it was to promote a unified command structure that assigned accountability to one person and to ensure civilian control over the military. The Founding Fathers never intended this title to allow a president to initiate offensive wars against other countries and Supreme Court Justice Robert Jackson in the famous Steel Seizure case of 1952 reiterated the narrow, Founding Fathers’ interpretation of the title Commander-in-Chief.

Also not surprisingly, one finds an impressive list of congressional foreign policy powers in the Constitution: (1) to declare war; (2) to define and punish piracies and felonies on the high seas, and offenses against the law of nations; (3) to grant letters of marque and reprisal; (4) to make rules concerning captures on land and water; (5) to raise and support armies; (6) to provide and maintain a navy; (7) to make rules for the government and regulation of the land and naval forces; (8) to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; (9) to regulate commerce with foreign nations; and (10) to tax, spend, and borrow. These substantial powers reflect the Founding Fathers’ fear of a presidential monopoly in foreign affairs.

The failure of Congress to exercise its foreign policy powers and serve as a check on Presidential power in foreign policy has almost always created major problems for the US. Korea in the 50s, Vietnam in the 60s and 70s, Nicaragua in the 80s, and Iraq today can be cited as examples. With regards to the war powers, prior to 1950 Presidents occasionally used force without Congressional authority but these were minor actions, none were major conflicts. Nevertheless, three times since 1950 the President has illegally bypassed the Congress and taken us into major conflicts or wars: President Truman in Korea in 1950, President Clinton in Kosovo in 1999, and President Bush in Iraq in 2003. The Iraqi decision is informative. Congress passed legislation which allowed President Bush to make the decision whether or not to use force against Iraq. This was at best a clear abdication of Congress’ constitutional authority and responsibility to decide to go to war and at worst an unconstitutional grant of the war decision power to the President.

Former Congressman Lee Hamilton has written extensively about the fact that Congress has basically ceded its constitutional budgetary powers to the executive branch. This has also happened with the war powers and foreign policy in general. Yet, it is clear that this is a perversion of what our Founding Fathers intended. When are we going to have checks and balances when it comes to foreign policy? When will Congress exercise its institutional prerogatives in war powers and foreign policy and prevent another King George?