Cross-posted at my blog, Fleeceme.net
The Congress shall have power…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; ~ Article I, Section 8 of the United States Constitution
Much of the chagrin from the right (and some on the left) about our President’s Libya debacle stem from this one line in the Constitution. From first blush, I can understand a lot of people’s confusion, “The power to declare war”, seems pretty straightforward no? Well, unfortunately it ain’t. If we are to understand why the President has every power to use our armed forces in ANY undeclared war he deems appropriate, we must delve a little deeper into the Constitution. As a caveat, this article is for people whom actually believe in the Constitution of the United States, you folks who only choose to acknowledge its existence when it suits you can gleefully ignore the rest of my words (although, I am defending the ONE, so maybe you should keep reading).
What is War?
We first have to acknowledge one simple truth, the concept of war has changed a helluva a lot in the last 200 years. I am not talking so much about the technology of the weapons (though I am sure the Founders never envisioned an Air Force), but I am referring more to the mentality of War. The world that shaped our Founder’s concepts of war was one of frequent and multiple fighting, to give you an idea, lets look at a list of the wars going on in the world from 1700 to the ratification of the U.S. Constitution (in chronological order):
- April 1700 – Start of the Great Northern War
- March 1701 – Start of the War of Spanish Succession
- April 1713 – Treaty of Utrecht, marks end of War of Spanish Succession
- September-November 1715 – First Jakobite Revolt
- August 1721 – Treaty of Nystad, marks end of the Great Northern War
- 1733 – Start of the War of Polish Succession
- 1735 – Treaty of Vienna, marks end of the War of Polish Succession
- 1739 – Start of the War of Jenkin’s Ear (in America)
- 1740 – Start of the War of Austrian Succession
- 1744 – Start of King George’s War, the War of Jenkin’s Ear rolled into this war
- July 1745 – Start of Second Jakobite Revolt
- April 1746 – End of Second Jakobite Revolt
- October 1748 – Treaty of Aix-le-Chappelle, ending the War of Austrian Succession and King George’s War
- 1754 – Start of the French and Indian War
- 1756 – Start of the Seven Years War
- February 1763 – Treaties of Paris and Hubertusberg ends both the Seven Years War and the French and Indian War
- 1775 – Start of the Revolutionary War
- July 1778 – Start of the War of Bavarian Succession
- May 1779 – End of the War of Bavarian Succession
- 30 November 1782 – Anglo-American Treaty officially ends the Revolutionary War
- 1788 – Ratification of the U.S. Constitution
Whew! So, if you were keeping track, that was a total of 11 wars in the span of less than 90 years. And if you really paid attention, you would have noted 4 of those wars were started because of succession issues. And, of more import, these were long wars, spanning multiple countries and in some cases, multiple generations. To summarize, our Founders grew up in a world embroiled in war – wars here in America, wars on the Sea, wars over who shall be the next king, and so on and so forth.
But what was war? In the minds of a man trying to decide the framework for a brand new government over 200 years ago, what did “Going to War” actually mean? To answer that, we must look to the British Empire of the time, for that is how most of our Founders learned the concepts of war.
When the British went to war, the first thing they had to do was recall all British Naval Captains and Commanders “off the beach”. In between wars, Naval commanders were put at half-pay, their regular “enlisted” crews were released (to later be conscripted if they couldn’t escape the “press gangs”) and most ships were put into a permanent dock until the next go around. The idea of a permanent Navy was non-existent, it was too expensive. This holds true for the Army as well, a permanent standing Army drained the coffers, not to mention, it was a threat to the government and to the governed, as so stated by Madison:
A standing army is one of the greatest mischief that can possibly happen.
So, unlike today, the concept of a permanent, large, always training military was foreign to the Founders. Therefore, to “declare war” was a very involved process, not least of which required the opening of the government’s coffers to feed, train, pay and build the arms and ships necessary to field an Army of 200 years ago. This process of declaring war appropriately ties in with Congress’s power over the purse strings of the country; they had to figure out how to pay for the war, ergo they should be the one’s to do the declaring.
War ties into Treaties as well
The President shall…have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur ~ Article II, Section 2 of the United States Constitution
First off, we must understand right now treaties are pretty bad instruments of foreign policy. They are unenforceable, depending on who we sign a treaty with they could be utterly worthless, and they have a tendency to suck countries into war. Go back to the list of wars I mentioned earlier, practically every combatant in most of the wars were involved due to some sort of treaty obligation. For a more recent look at the harm to a nation’s sovereignty a treaty can do, look to World War I or World War II. I am referring specifically in these cases to mutual protection pacts, which obligate a signatory of the treaty to come to the defense of any other signatory that is attacked.
All that being said about treaties, lets cogitate as to why the President can sign treaties. Its pretty simple, he is the man. The president is the face of our country, he represents us to the world, therefore no one but him should negotiate a treaty with another world leader. Imagine if any Senator could (we would have as many treaties as we have laws, given our “lawmakers” propensity for proving their worth). But, and this is a big but, the President must have approval of the people of the United Stated, through our representatives, before the treaty is ratified. Why?
Because said treaty could eventually force those same representatives to have to “declare war”. So it is a check on the executives power. The founder’s biggest fear in creating a new government was overlooking something that would allow the President to become a king, or a dictator. They did not want some renegade president running around the world signing treaties with any country willing to dote on him and give him kingly gifts and remunerations (also not allowed in the Constitution, but, it ain’t like our rulers follow that restriction) and they did not also want a president who would “declare war” (as in, get America on a war-footing) on a neighbor for anything but the most important defensive reasons.
The reason congress has the power to declare war is because that formerly august body was designed to be deliberative in thought, word and deed. Overnight signings of 3000 page healthcare bills are not supposed to happen in the hallowed halls of the Capitol. The act of declaring war, and thusly mobilizing thousands of men to form an Army and prepare for war, was supposed to take time and deliberation.
But now, we must look at the President’s power in all this.
But he is Commander in Chief
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 II, Section 2 of the United States Constitution
If the president is the Commander in Chief, how come he can’t declare war? I think that has been answered, at least in the thinking of someone 200 years ago where the existence of a large, highly trained and well-funded standing Army, Navy and Air Force were non-existent – if the president could declare war it would cost too much money (money he had no control of), he could embroil us in wars we did not desire, and he could easily become a dictator. So again, we must look at what war is, but as a legal term.
“War” was, at the time of the Founding, and still today, a touchy legal term. So as an early example, we never officially declared war against Tripoli (ironically, Libya)to start the First Barbary War, but congress did grant President Jefferson an authorization to do something, which he did in the form of 6 newly built frigates and their men sent to the Mediterranean to protect national interests (not just commerce, many Americans were being taken as slaves off of ships). All this happened only 20 years after our founding, so the concept of Congress NOT declaring war is a new thing is totally unfounded, though I will note the last time congress did declare was in 1942 against Romania of all countries.
Why such a fear of declaring war? Probably because politicians universally have no backbone. They would much rather be able to say they were “for a war before they were against it” then to have their name officially put on a formal “declaration of war”. It also might have to do with the aforementioned problems with treaties and the general diminishing of a nation’s individual sovereignty such “membership” to NATO or the UN entails. Most of the undeclared wars our nation has been embroiled in since the 1950′s can be attributable to one or the other of those two organizations. The “Korean Conflict” (war to the brave men that fought it) was a UN “action”. Vietnam, well, that was a diplomatic cluster-f**k to say the least, starting with agreements between the Western powers to restore Indochina to French rule following World War II. First Gulf War, UN approval. Second Gulf War, UN and congressional approval despite all the congressional waffler’s statements otherwise. Panama, UN. Guam, UN. Bosnia, NATO following a UN goatf**k.
One could easily argue neither congress nor the president has the power to declare war, maybe its some foreign world governing body?
But…there is a catch with regards to Libya
The catch, the War Powers Resolution of 1973. Basically, to sum up this wholly unconstitutional Act – we, the congress, who have no intestinal fortitude but gobs of righteous indignation, say the President can only involve America in hostilities for 60 days, hopefully, within that sixty days the polling data will show which way our constituents fall on the issue of the war and we can then show our “leadership”.
Unconstitutional? Hell yes! You ever wonder why the President is the commander in chief? It isn’t arbitrary. George Washington (the First President for you UC Berkeley students) was a huge proponent of a strong executive following his experience as Commander in Chief of armed forces during the Revolutionary War. During that war, we basically had the set-up we have now except each state paid its own militia men, provided supplies and men and materiel. Washington spent more time worrying about how to keep his Army in the field then he ever did worrying about the British. He had to give political favors to state politicians to get them to send promised supplies to his men, nice to know politicians were always scumbags isn’t it? He had to lie to his men in the state militias to keep them from picking up arms and just leaving because they hadn’t been paid in months. Not to mention, he had to deal with ineffectual and often criminal Generals appointed by the state legislatures to his Army (many, including myself, would argue Benedict Arnold’s betrayal was a direct result of Washington having to pass him over for the promotion of a “political” ally). Basically, he was in charge but he didn’t have a lot of control. It is a wonder Washington ever pulled off the victory.
But, he was not going to let that serious clusterf**k ever happen again. He understood congress must hold the purse strings, but the Commander in Chief handled everything else, up to and including unilateral defense of our Nation’s interests. Remember, congress is supposed to be deliberative. They aren’t meant to make decisions quickly, unless they have a supposed mandate to pass Obamacare. When it comes to military action, deliberate is not always the best measure, especially in regards to defense. The bad guys aren’t gonna wait till you are ready.
So, the President, as Commander in Chief, has every power to use our military to engage in hostilities with any nation or body in which he deems necessary to ensure our national interests, and the Congress has the power to cut up his credit card. This is their check. And this is what they wholly lack the guts to do.
The War Powers Act was passed to ensure Congress would never have to pull the plug on a military action. Why? Because presumably, closing the Army’s bank account during a “conflict” would necessarily be an unpopular act given America’s understandable love for our men and women in uniform. And, it is foreseeable that a President would not exactly get the message if funding was removed. What to do if he didn’t stop military action? What if he called congress’ bluff (good argument for why Presidential term limits are a bad idea)? Given our politician’s propensity for mistruths, the accusations spewing from each side of the issue would be staggering to say the least. Of course, we the people aren’t supposed to elect douche-bags that would get us involved in “wars” that Congress would want to ever defund, but hey, we aren’t perfect.
The One is right
So, our President’s oratorical heroics notwithstanding, I will do try to do something he is incapable of, explain why he is in the right with regards to involving us in Libya (as in, he has the power to do so, screw Congress, not that getting us embroiled in Libya is a wise decision).
Historical precedence and implied consent taken into account, no declaration of war is necessary for the President to send our military to any conflict in which he deems a “national interest” is present. The War Powers Act is an unconstitutional check on the President’s power to do so (it should be an amendment for the sweeping change it does to the balance of power between the branches), therefore he is obligated to ignore it. Congress has the power to defund the operation, and it should if a majority deem it is not in our best interests. It is very simple. Congress has no cajones, so they hide behind an Act that will not hold up to a legitimate legal challenge. If they were convinced in their cause, they would stop this incessant hand-wringing about Obama’s “unconstitutional” involvement in Libya and tell him, “check it out, Mr. Messiah, we are giving you enough cash to get our troops out in the next 14 days, after that, this baby is all yours”. Of course, that would require our national “leaders” to rise above the common garden worm and possess some backbone…yeah, and I’m a Chinese jet-pilot.