The US Presidency, the United States Congress, and the Ability to Declare War
(F-22 Raptor: Image Courtesy of the United States Air Force)
“We should declare war on North Vietnam. We could pave the whole country; and put parking strips on and still be home for Christmas.” — Ronald Reagan
“Right after we invaded Iraq, I put a sign on my law that said, ‘War is not the answer.’ That sign was either defaced, ripped up, or stolen every week. I had to replace that sign twelve times.” — Paul Haggis
“If you want peace, you won’t get it with violence.” — John Lennon
“The supreme art of war is to subdue the enemy without fighting.” — Sun Tzu
“There’s nothing like a good ole war.” — Theodore Roosevelt
“War is the motherfucking answer!” — Marine Corporal Josh Ray Person
The way that the Constitution was written has some serious historical meaning behind it. The American colonies had lived, since their very foundation, under the rule of a monarch who had, in the Hobbesian sense, the sole possession of the power to take his country to war. Questioning this could be taken as treason and Parliament was not sufficiently powerful enough to tell the King to be away with himself. Sir Thomas Hobbes outlined the nature of the Social Contract established between a King and his subjects in his book, Leviathan, published in 1651. On multiple occasions, throughout the American colonies’ history, it’s citizens had been called upon to fight in wars that sometimes stretched the boundaries of fairness; but in 1754, they got a particular dose of such a war that could have easily been prevented had the appropriate actions been taken by the legislative body in charge of the affairs of war. George Washington was commissioned a Light Colonel by the Virginia State Assembly to investigate the possible presence of a French military force setting up operations in a portion of the Eastern Ohio River valley that was then claimed by the Colony of Virginia. As it turns out, it was not far from the confluence of the Allegheny River, the location of the modern city of Pittsburgh, Pennsylvania.
Washington’s orders were to observe and report, but he got over zealous, to put it lightly, and assaulted the French troops that he and his men encountered. He narrowly escaped with what could barely be called a victory, only to return to Virginia a hero. Not long afterwards, the Seven Years War erupted, and all because of the actions of one man, countless American colonials lost their lives in a war that could have been prevented by either self-restraint on the part of Washington, or punishment on the parts of the Virginia State Assembly, or possibly, even the English Parliament. Payment for the war was procured by levies ordered by the King and collected by his royally appointed tax officials in the colonies, which did not leave a good taste in the colonials’ mouths. In the coming years, the tax riots and boycotts conducted by the American colonies, which are part of what led up to the Revolutionary War, were based solely upon the inability of the Virginia Colony’s legislative body inability to properly exercise their legal oversight power over an inexperienced military leader. Fred Anderson does a magnificent job of recounting this turning point in colonial history in his book, Crucible of War: The Seven Years’ War and the Fate of Empire in British North America, 1754–1766, published in 2000.
After independence, the United States set about creating its own government. It did not really work out all that well for them, at first. So, with the bad flavor of an apparently overly powerful English executive in their mouths, and the stink of failure in their noses after the consistent failures of the Articles of Confederation, their first formal document constituting a government, where a consistently weak executive hampered the government’s ability to do its job, the founding members of the United States met in Philadelphia to give the process another try. Meril Jeson does a great job of outlining the difficulties faced by the Articles of Confederation Congress in his book, The Articles of Confederation: An Interpretation of the Social Constitutional History of American Revolution, 1774–1781, published in 1940. This second try at writing a formal document of governance for the United States is now known as the Constitution of the United States of America, and with only a few changes, it is still the Supreme Law of the Land, under which all other laws, municipal, county, state, or federal must comply. To ensure that this would be taken seriously, the founders wrote it directly into the document, in the form of the Supremacy Clause. This is Article 6, Clause 2 of the Constitution.
Aside from that, and the three most important points regarding this discussion, are what else the Founders put into the Constitution. First, they gave the supreme authority to declare war to Congress, located in Article I, Section 8, Clause 11. Second, they gave Congress the ‘Power of the Purse,’ which is located in Article 1, Section 9, Clause 7. Finally, they made it a requirement that the President get congressional approval to engage in any immediate military actions, as well as, to get any needed monies to ensure victory in any particular engagement. They put this requirement in Article 2, Section 2, Section 1. There are some people that want to claim that this section gives the executive a certain amount of leeway in the declaration of war, especially in the cases of dire emergencies, but that debate is still ongoing, and has been since the Constitution was first ratified. It is to this separation of powers written into the Constitution that author Louis Fisher holds true. He believes that this should be the bedrock of American governance, though he has witnessed repeatedly where Congress has failed to properly exercise the authority that it has been given. He outlines his discontent in Presidential War Power. The latest edition of the text was published in 1995.
On the first of June, in 1812, President James Madison sent a letter to both houses of Congress, explaining the repeated grievances committed upon American sailing vessels and their men whilst attempting to conduct legal trade with the French, then led by the empire minded Napoleon Bonaparte. The British had declared anyone trading with the French to be an enemy of the King and all of Britain. Though Madison did not request a Declaration of War, one was given, and monies were made available to engage in the war against Britain. Congress’ deliberations over the issue took just over four days; for that period, this was considered astonishingly quick. Mark Zuehlike outlines this in his book, For Honour’s Sake: The War of 1812 and the Brokering of an Uneasy Peace, published in 2010. There is also the case of the Barbary Wars, which were not finally completed until not long after the War of 1812 had ended. In both occasions, Congress was quick to declare war and provide the President with the resources needed to eliminate the supposed imposing threat, with very little convincing having to be engaged in by the sitting president in either case. Fredric Leiner also does a great job of outlining these early submissions in his book, The End of Barbary Terror, America’s 1815 War against the Pirates of North Africa, published in 2007.
There are very few presidents who have taken so much liberty with their presidential war powers as did Abraham Lincoln. He made much such a loose interpretation upon which to work that there were some things that happened which most people would not approve of now. Most famously, President Lincoln is known for his suspension of the constitutionally protected Writ of Habeas Corpus. He justified his actions because rioters and local militias in the border states were causing chaos. By suspending habeas corpus, he made it possible for his soldiers to detain these men indefinitely, so that they could no longer threaten the public order, or more, run the risk of pushing the border states into the Confederacy. President Lincoln later ignored a Supreme Court justice’s decision overturning his order. Over the next few years, this allowed for some new restrictions to be implemented, which included the imposition of martial law in some volatile border areas and the curbing of the freedoms of speech and the press, a restriction which eventually expanded throughout the Northern states.
As the war drew to a close, though, some have argued that Lincoln may have begun to recognize the dangers of his own unprecedented expansion of presidential war powers. More than 13,000 civilians were arrested under martial law during the war, throughout the Union. This ate at his conscience. When the war started, there was little doubt in Lincoln’s mind that his suspension of civil liberties was both necessary and constitutional. His political opponents may have disagreed, but facing a full-fledged insurrection in the South and with the loyalty of Maryland, the state between Washington, D.C., and the rest of the Union, wavering, Lincoln felt that he had genuine grounds to worry that the nation’s capital was in real danger. He used this fear to broadly interpret his powers. Where would the United States be if he had not done so? This is a very broad question, which has been left to much interpretation. David Herbert Donald explores this question in depth in his biography of Lincoln, Lincoln, published in 1995.
Then there is, of course, the conflict that took place in the Philippines after the completion of the Spanish American War. The United States secured the Philippines from the Spanish when a US Navy fleet, under the command of Admiral Dewey, blockaded the port of Manila and secured its surrender. Afterwards, Filipino rebels, under the command of Emilio Aguinaldo, helped the United States Army, under the command of General Arthur McArthur Jr., defeat the remaining Spanish forces on the island. Their cooperation was garnered on the bases of a promise made to them by Theodore Roosevelt’s diplomats. They gave their assistance in exchange in for a guarantee that once the Spanish were gone; they would be allowed to formalize their independence free of foreign intervention. Without the knowledge of the Filipino fighters; however, the United States made a deal with Spain to transfer full sovereign control of the islands to US control after the signing of the peace treaty ending the war. Once Aguinaldo was made aware of this, he started an uprising that did not end until he was captured by the United States Army, which was followed by an attempted public humiliation. The conflict he began lasted through the end of the Taft administration. None of these actions, post Spanish-American War were ever approved by Congress as formally legal events, though they did receive funding each year, as continuous presidents deemed the conflict a threat to US interests in the region. Velasco Angel Shaw and Luis H. Francia tell the story of this betrayal and its subsequent Congressional approval in a clear eyed way that makes one hope that not all hope is lost in this world in their text, Vestiges of War: The Philippine-American War and the Aftermath of an Imperial Dream 1899–1999, published in 2002.
The Departmental Reorganization Act, (40 Stat. 556, May 20, 1918), also known as the Overman Act, was a law passed at the beginning of World War I, which gave President Woodrow Wilson sweeping powers in the execution of America’s involvement in the war. He was able to reorganize government agencies so long as the war was in continuous operation, and he was not required to surrender those powers until six months after the war’s cessation. With this power in his hands, Wilson created the War Industries Board, the National War Labor Board, and the Committee on Public Information, the last of which went so far as to nearly making being German in the United States illegal. Sauerkraut became Victory Cabbage and the music of German composers was banned from public performance. He also used the law to crush labor unions that refused to sign non-strike agreements in major war product production facilities, as well as, suppressing political radicals, whether they committed violent acts against the government or not, in direct violation of their rights to freedoms of assembly, the press, and speech. Some of the actions that Wilson took against labor unions and political radicals are directly responsible for the 1919 Red Scare and even further violations of American citizen’s right to dissent. Griffin Fariello assembled a great collection of oral history interviews conducted with people who survived the government oppression of this early red scare. Many speak of the pain in losing good friends to the violence that the government brought against them in public, at work, and in their homes. His edited text is, Red Scare: Memories of the American Inquisition, published in 1995.
The War Powers Act of 1941, (55 Stat. 838, December 18, 1941), also known as the First War Powers Act, was an emergency law that dramatically increased the President’s abilities to execute what were considered needed functions of the executive in World War II. The act was signed into law by Franklin D. Roosevelt on December 18, 1941, less than two weeks after the Japanese attack on Pearl Harbor. The purpose of the act was to give the President enormous authority to execute World War II in as efficient a manner as was deemed necessary by the President himself. The President was authorized to reorganize the executive branch, independent government agencies, and government corporations for the war cause. Further, with the power of the act on his side, the President was allowed to censor mail and other forms of communication between the United States and foreign countries that were considered suspect. Essentially, anyone that was deemed a threat by the subjective ruling of the state could find themselves locked up. This is exactly what happened to Japanese Americans all over the country, but mostly on the American west coast. Mary Matsuda Gruenewald tells her personal story in Looking Like the Enemy: My Story of Imprisonment in Japanese American Internment Camps, published in 2005.
Three months after passing the First War Powers Act, the War Powers Act of 1942, (56 Stat. 176, March 27, 1942), also known as the Second War Powers Act, was passed. This further strengthened the President and the executive branch’s powers related to the execution of what was now the United States’ full fledged involvement in World War II. This act allowed the acquisition of, under the threat of federal penalties, as was required, of land for military or naval purposes. The law also repealed the confidentiality of federal census data, which allowed the FBI to use this information to round up Japanese-Americans, a blatant violation of the rights of natural born citizens, many of whom had already attempted to enlist in military service with the noble intent of defending their homeland in a time of war. This was also the act that made refusal to enlist in the military, when duly and legally drafted by the Federal Drafting Board, a federal crime punishable with severe prison time, or execution, if charges of treason could be verified. In this midst of this entire affair, Congress did little to question the acts of the President and his executive departments who were directing the war. They truly dropped the ball when, not long after the passing of this latest law, the President declared the war in Europe to be of the highest priority. One might think someone would say something, especially when it was an attack by the Empire of Japan that brought the United States into the global conflict in the first place, but nothing was done. Though this text is sometimes considered controversial, a good thing in most cases, The Secret History of World War II: The Ultra-Secret Wartime Cables and Letters of Roosevelt, Churchill and Stalin, a collection of since declassified war cables, outlines this questionable strategy in grim political detail.
The Gulf of Tonkin Resolution, (78 Stat. 384, August 10, 1964), was a joint resolution of Congress passed on August 7, 1964 and signed into law three days later by President Lyndon Baines Johnson. The resolution was passed after a questionable event in which Vietnamese forces apparently attacked two small US patrol boats, which were ‘operating’ off the coast of North Vietnam. The law is of such historical significance because, like laws laws before, it gave the president the authorization, without a formal declaration of war by Congress, the right to make use of conventional military force in Southeast Asia. Specifically, the resolution authorized the President to do whatever he deemed necessary in order to assist any member or protocol state of the Southeast Asia Collective Defense Treaty to engage with and defeat the North Vietnamese Army. This included involving armed forces to whichever extent he considered to be appropriate. The near limitless nature of this authorization is what made many people justifiably uncomfortable. With such powers, a single man could become the dictator of an entire nation, and anyone with a decent enough liberal arts education would now why such fears were not unfounded. Luckily, members of the Senate opposed the action, and while their opposition was not able to stop the passage of the measure, it did show that there were men in Congress who believed that Congress’ power had just been usurped out of fear of being on the wrong side of an initially publicly supported political situation.
They knew that Congress had not done its research into the incident and that they had just entered the United States into a war that could very well not have any planned exit strategy. The Johnson administration subsequently relied upon the resolution to begin its rapid escalation of U.S. military involvement in South Vietnam, as well as, the commencement of open warfare between North Vietnam and the United States. Louis Fisher found this surrender of Congressional authority over the power to declare war against a belligerent nation to be a complete and abject abandonment of Congress’ duties, and an almost cowardly refusal to question the President’s motivations for entering Vietnam and putting thousands of American’s lives on the line. One could not agree with him more. The Vietnam Was was not an effort to stem the spread of global communism. It was not a war meant to protect the American home front from the perceived or possibly real threat of foreign invasion. It was not a war meant to achieve some measure of glory for the American cause. It was not a war designed to spread freedom and democracy to those deprived of the right of political choice. It was not even a war that was of any strategic importance to the United States’ political position in Southeast Asia. It was a war of pure aggression, designed only to open up a live field testing facility for new military technology that needed to be proven in combat. It was the playhouse of the American Military Industrial Complex, and it was in direct violation of countless UN restrictions on the commencement and engagement in of war. It was also a theater where the United States actively engaged in the illegal use of chemical weapons on civilian populations. In 2010, Michael Pavelec Sterling put together a great collection of essays that are highly critical of this institution, The Military-Industrial Complex and American Society. These essays sought to explain why, on so many occasions, Congress and the American people have failed to challenge this daunting beast.
If this were the end of the discussion, then there might not be a whole lot of reason to discuss this phenomenon, except in the past tense. However, it is not the end. On September 11, 2001, Towers One, Two, and Seven were blown up at the World Trade Center Plaza, and not long after this, President George Bush, Jr. had been empowered to take America’s response to whomever might find themselves on the wrong end of American fury. The Resolution for Authorization for Use of Military Force, (115 Stat. 224, September 14, 2001), which passed as Senate Joint Resolution 23 by Congress on September 14, 2001, authorized the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. The legislation granted the President the authority to use all necessary and appropriate force against those whom he determined planned, authorized, committed, or offered aid to those who planned, authorized, or committed the September 11th attacks. It included any nations who were suspected of harboring said persons or groups. This law also authorized Bush’s invasion of Iraq in 2003, and as it is still in effect, gives the President, now Barack Obama but soon to be Donald Trump, the full power to engage in total war against ISIS, should either find it necessary or vitally important to do so, and the requirements for action are as vague as one could possibly make them.
Fisher offers much criticism for this affair, as well. First, it only took three days for Congress to approve the needed legislation for President Bush to have the power that he needed to engage in an aggressive campaign against anyone in the Middle East who he may have suspected to be harboring terrorist elements. Who exactly were these terrorist elements? Intel done on Al Qaeda and the Taliban in Afghanistan showed that there was at least some justification for going to war with that nation and its government who had a nominally poor track record when it came to providing harbor for suspected terrorists. However, no such intel could be solidly provided for Iraq, and yet, under the cloak of the Resolution for the Authorization for the Use of Military Force, Bush was able to invade the country, even without the backing of the majority of the international community or any credible evidence supporting any of his claims, the biggest one being the possession of Weapons of Mass Destruction, against that nation. Fisher also mentioned some of the other rights granted to the President in the name of preserving the national defense of the United States. He could make use of preemptive strikes, military tribunals, abnormal torture tactics, detention facilities whose locations were to be made classified, terrorist tactics against civilians, and the indefinite detention of individuals thought to be a threat to the United States. Here again is Congressional approval for a military engagement that was fought for absolutely no reason except the gain of commercial industry. Liberation had nothing to do with it. Only this time, the Oil Industry had jumped on board with the Military Industrial Complex. Just think, because of the Iraq Engagement, the US Military can now field smart tanks, highly advanced assault drones, and infantry uniforms capable of shielding the wearer from the open range sight of the enemy. In June of 2003, President Bush published what one can only describe as one the weakest attempt to justify such a war in all of American history, A Report Consistent with the Authorization for Use of Military Force Against Iraq Resolution: Communication from the President of the United States Transmitting a Report Including Matters Relating to Post-Liberation Iraq as Consistent with the Authorization for Use of Military Force Against Iraq Resolution of 2002.
From a strict constitutional sense, the President of the United States is not supposed to be able to engage in military conflicts with impunity and a nearly bottomless purse, which is exactly what happened in each of the cases reviewed here. This restriction was born out of a genuine and natural fear of an executive, the British Monarch in the case of the Founders of the Constitution, who could take an entire nation to war whether he felt it might or might not be justified, with the true circumstances behind the commencement of the conflict, ultimately, being of no consequence. One also has to question why Congress has always been so quick to hand over so much power to the President, without first taking some legitimate time to deliberate on the issue, especially, given the legal power that they possess over these matters. Expedience and the need to act quickly may be the immediate answer to this question; however, the United States had, in each occasion, military forces which could have been easily been engaged in defensive maneuvers until Congress decided which actions it felt were necessary to resolve the related conflicts. The real issue may be nothing more simple that job retention. Voting against a popular measure, no matter how ludicrous a Congressman may know it to be, or at least premature, could cost that Congressman their job in subsequent elections. So, throwing Congress under the bus may just be a political maneuver. In Chapter One of his text, Fisher discusses the need to repel immediate threats and how that may require rapid action on behalf of the President, and this is important. However, if Congress can smell garbage, they need to take the time to do their homework. They could be saving thousands of lives bey refusing to engage in a felonious or strategically unnecessary war. Damn the political consequences! Fisher says as much.
In Chapter 6, he speaks of the War Powers Resolution of 1973, (87 Stat. 555, November 3, 1973), which was passed in an effort to check the lengths to which a president could go to commit the whole nation to acts of war against foreign nations. What was first thought to be the most vital strength of the bill, has since become well known as its most critical weakness. The law gives the President one hundred days to commit to a war before he has to ask Congress for permission to continue. What could a president do in that amount time? Could he engage in a war with a nation, defeat them, and pull out without ever having needed congressional approval? Could he get himself into so much trouble that Congress would have no choice but to help him get out of it? Could he over inflate the seriousness of the conflict to get public support behind him, thus pressuring Congress to act on his behalf? What happened after the 9/11 attacks? A President was able to hoodwink an entire nation into believing that the invasion of Iraq was vital to American security at home and around the world, and when he was found to be wrong, he deflected the blame on subordinates to keep himself out of trouble. To top it off, he had those one hundred days to get himself into the trouble required to lure Congress into funding his commercial venture.
Throughout American history, it has been normal behavior for Congress to surrender to the President and to the public opinion of what many would call the mob. That is not their job. Their job is to be a deliberative body that provides a legitimate counter balance to the knee jerk reactions of Presidents who are not always thinking beyond the moment. This is the point of the Separation of Powers doctrine. Especially in cases such as this, the United States Congress has seriously got to start doing its job, or it is going to find itself either the lackey of the President, or just completely politically irrelevant. Given that the Separation of Powers doctrine, when exercised appropriately, has had a tendency to lead to policies developed with more deliberation, debate, and collaboration, one would think that Congress might consider such an important duty to be of the utmost importance. What happens when there comes a man that does not want to give those temporary powers back, or who intentionally ignores the one hundred day rule? Are they going to have to take them back by force or publicly punish him, or will they bend to public opinion, yet again? Each time that Congress yields to a President who fails to follow the appropriate procedures or intentionally takes advantage of loopholes in federal law, they strengthen the precedent that the President has the power to do whatever he likes, as long as he can find a creative way to justify it to the general public that is decidedly uneducated on the law and affairs of state. Each time they surrender their power because popular opinion suggests that they should, they push country one more inch towards the eventual rise of a President that will be able to take the powers of state into his own hands, dictator style, accompanied by the praise of an ignorant public. This is one of Fisher’s biggest fears about the US Presidency and strongest disappointments in the historical development of the United States Congress.
A Final Thought
One might, seeing the way that Congress has responded to just about every single military conflict that the United States has ever been involved in, begin to believe that Congress is acting out of a sense of precedent. Just like the Supreme Court may require lawyers to seek precedent in the production of an opinion to be delivered before the Bench, Congress has repeatedly looked to its past actions to justify surrendering its war making powers to the President when they felt the situation demanded it, or at least, it seems that way. The very first time that this happened was in the case of the Western Pennsylvania Whiskey Rebellion that began in 1791. For three years afterwards, farmers around Pittsburgh refused to pay the required tax on the whiskey they produced, which had been levied by Congress. After consulting Congress, many of whom actually recommended that the President resort to force against his own people, getting the approval of the Supreme Court, and getting Alexander Hamilton to write some public letters justifying the action, Washington threw on his old uniform, called up the militia and any Revolutionary War veterans around New York who could still pick up a rifle, and essentially invaded western Pennsylvania. When Washington arrived in the area fully prepared for a fight, and trying to strike the image of the Washington of old, the resistance crumbled without a shot being fired, as a great many of the men participating in the rebellion had also served under Washington. If not that, they had at least come to idolize him for his role in the Revolutionary War based on stories told by those who had fought with him. It is interesting how both his first and last military engagements both occurred in the area surrounding what is now Pittsburgh, Pennsylvania.
Some have argued that it was the suppression of this rebellion which finally convinced many anti-federalist westerners to finally accept the Constitution and begin to resort to voting rather than the use of violence to make their political will known. Steven R. Boyd explores the significance of this event in his book, The Whiskey Rebellion: Past and Present Perspectives, published in 1985. Could this have been the first point where Congress found it okay to surrender its power, even if its own power was sufficient to handle the situation? How would things play out in a similar situation now if Congress had attended to the issue itself rather than allowing George Washington to charge in head first at the lead of an entire army? How many wars would either have never been fought, or at least fought differently, if Congress had had the courage to ignore rash public opinion and the ramblings of President’s seeking quick action when it was, in fact, measured deliberation that was more in order? Whatever happened to the idea. long ago espoused by Sun Tzu, that the greatest victory is that which is achieved without ever stepping out onto the battlefield? One can just imagine a world where the United States respected the sovereign rights of so called belligerent nations as much as it demands that those same nations respect its own sovereignty. Imagine a nation where a deliberative government body actually did its job and taught its people to respect patience, tactful action, and the sanctity of life, no matter its point of origin. Imagine a world where the people are not squeezed for every last dime of their earnings to fund wars that make the rich richer, destroy economic and social infrastructure without care, and retard the development of technology that could help human kind to escape the grips of disease, hunger, and terrestrial stagnation. Just imagine…..