War Powers: Return to Congress

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Last month, Hillary Clinton’s former running mate, Senator Tim Kaine, became the latest voice to join the small-yet-sonorous choir of figures arguing for Congress to reassert its constitutional prerogative to make war. The fact that this choir encompasses figures as disparate as Kaine and Sen. Rand Paul underscores the bipartisan character of their argument which, despite being reasonable, has yet to spur reform.

Currently, tensions with North Korea, despite the the Olympic festivities, have continued unabated. Earlier this week, it was reported that the Trump administration is actively considering using military force in the event of another of Kim Jong-Un’s missile test, which means that another needless war could be just around the corner.

Article I, Section 8 of the U.S. Constitution (often referred to as the War Powers Clause) unambiguously gives Congress the power to declare war. Yet Congress has declared only five wars pursuant to that clause: the War of 1812, the Mexican–American War, the Spanish–American War, World War I, and World War II. Since 1945, we’ve had not only one or two, but several lengthy, costly wars. It’s only upon considering that each of those wars was initiated without congressional declarations that the enormity of what’s been permitted to happen for over half a century becomes apparent

In 1973, nearly a decade after the Gulf of Tonkin incident and the unjustifiable abuse of congressional authorization that followed, Congress finally began to fret about the executive branch’s apparent disregard for its constitutionally mandated war powers. News leaks revealing that President Nixon had conducted covert bombings of Cambodia without notifying Congress compounded their concern and a new bill, the War Powers Resolution, was passed. Nixon vetoed it and criticized it as an unconstitutional encroachment upon the executive office.

Despite Nixon’s protest, though, the bill became law thanks to a two-thirds vote in each house. The bill, which is still in force, requires that the president obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities. Unfortunately, this small victory, rather than establishing a check on the president, inadvertently laid the groundwork for further executive abuse. Now, instead of asking for permission to make war, the president merely asks for permission to continue it.

It’s peculiar that Nixon argued that Congress was encroaching upon the power of the president since the division of powers regarding the making of war and the reasoning behind it were discussed by the founding fathers at length. Vigorously encouraged by Thomas Jefferson, James Madison wrote a series of articles in 1793 attacking Alexander Hamilton’s defense of executive power in the Gazette of the United States. In one article, he wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department…the temptation would be too great for any one man.” That Madison wrote of the temptations of war when virtually all of America’s leading men were champions of irenic liberty underscores his conviction that the power to make war should be the prerogative congress.

If the power to initiate war belongs to the president, the question of whether or not to make war cannot be given due consideration. The theologian William Ellery Channing once famously remarked, “The cry has been that when war is declared, all opposition should be hushed. A sentiment more unworthy of a free country could hardly be propagated.” Essentially, once the president starts a war, the notion that a mere congressman or a contingent of senators could effectively argue that hostilities were unjustified after the War Powers Resolution’s allotment of 60 days elapses, is ridiculous. Moreover, it can be discredited by a quick glance at American history and bolstered by a review of ancient Roman custom.   

According to the Roman historian Livy, whenever a country had wronged the ancient city of Rome and the relevant ambassador felt that only war could address the issue at hand, the ambassador would ritualistically march toward the offending city wearing customary woolen headgear and invoke the gods. Interestingly, the ambassador would always conclude his spiel with an astonishingly prudent addendum—that before any actions would be taken, “about these matters we must consult the elders in our own land.”

It’s humbling to think that in the eighth century B.C., men knew what our Congress doesn’t—that consultation with folks representing the people’s interests ought to precede any initiation of war. It’s only then that various constituencies have the chance to weigh the benefits of inaction against the costs of war in terms of international relations, lives, and funds. In a letter to Madison in 1789, Jefferson wrote regarding the War Powers clause, “We have already given, in example one effectual check to the Dog of war, by transferring the power of letting him loose from the executive to the Legislative body, from those who are to spend to those who are to pay.”

Unlike the feudal kingdoms, where wars were fought and funded by kings and the knights of their court––and the loss of a war easily meant their downfall and possibly their deaths––America’s wars are fought and funded by its citizens. It is only fitting that their representatives in Congress, rather than the president (who can only lose his reputation) should be vested with the right to initiate war. 

But more substantial than all the arguments outlined above is the argument that without neatly delineated war powers, Americans will be mired in permanent war: a condition characterized by ever-increasing rates of military spending and geopolitical paranoia fuelled by an institutional yearning to achieve a state of everlasting military dominance. In 1953, President Eisenhower said of America’s Arms Race with the Soviet Union, “This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron.” The Soviet Union ended, but our arms buildup didn’t. Every year the military grows and every year we send men and arms into conflicts that the people never initiated.

Now, as the administration finds itself at odds with North Korea and rhetoric of “fire and fury” has become grimly common fare, the time to allow the presidency to hold onto war powers granted to it by a frustrated Congress terrified of the spread of communism has long passed. A handful of legislators agree. The rest of Congress should decide whether to join them or continue to allow the dogs of war to wander unleashed. 

Michael Shindler is a Young Voices Advocate and writer living in Washington, DC. His work has appeared in Real Clear Defense, The American Spectator, and Washington Examiner.

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