Radical Avenue

The aftermath of Vietnam left many scholars with afterthoughts about war and peace in America. Senator Jacob Javits wrote ““Declaring war… is only one part of the Congress’s constitutionally assigned war power. Article 1, Section 8 also instructs Congress to provide for the common defense, to raise and support armies and navies, make rules for the government and regulation of the armed forces and organize and govern militia. When combined with the ‘necessary and proper’ clause, Article 1, Section 8 offers overwhelming evidence that Congress is required by the Constitution to determine whether the United States makes war or remains at peace.

“. . . It is . . . one of the terrible ironies of American history that as war has become more destructive, less humane and less controllable, the power of decision over war has become increasingly concentrated in the hands of one American. This trend of history carries with it a portent of death for millions of human beings in the nuclear age. The American people can reverse this trend by insisting on the reinstatement of representative deliberations over the fearful decision as to war and peace.”

Historian Arthur Schlesinger intoned: “The Founders were determined to deny the American President what Blackstone had assigned to the British King – ‘the sole prerogative of making war and peace.’

“The resistance to giving a ‘single man,’ even if he were President of the United States, the unilateral authority to decide on war pervaded the contemporaneous literature. . . .

“There is no evidence that anyone supposed that his office as Commander in Chief endowed the President with an independent source of authority. . . . The President had no more authority than the first general of the army or the first admiral of the navy would have as professional military men. The President’s power as Commander in Chief, in short, was simply the power to issue orders to the armed forces within a framework established by Congress.”

Louis Fisher has written extensively about Constitutional separation of powers. “President Harry Truman went to war against North Korea in 1950 without asking Congress for authority. Since that time, presidents regularly have used military force by relying on what they regard as independent and self-sufficient sources of authority, especially the commander-in-chief clause. These assertions of political power have no legal foundation…..

“The constitutional balance of power between Congress and the president has not been altered by the UN Charter, mutual security treaties, the threat of nuclear war or other developments of the period since World War II.

“It is hackneyed to argue that contemporary conditions make it necessary to vest in the president the decision to go to war. If the national security risk is great, so is the risk of presidential miscalculation and aggrandizement — all the more reason for insisting military decisions be thoroughly examined and approved by Congress. Contemporary presidential judgments need more, not less scrutiny.”

Not everyone in Congress signed on to the hand wringing “necessary and appropriate” resolution of 2002. Senator Robert Byrd made his objections clear. “Before risking the lives of American troops, all members of Congress … must overcome the siren song of political polls and focus strictly on the merits, not the politics, of this most serious issue.

The resolution before us today is not only a product of haste; it is also a product of presidential hubris. This resolution is breathtaking in its scope. It redefines the nature of defense, and reinterprets the Constitution to suit the will of the Executive Branch. It would give the President blanket authority to launch a unilateral preemptive attack on a sovereign nation that is perceived to be a threat to the United States. This is an unprecedented and unfounded interpretation of the President’s authority under the Constitution…”

Commander in Chief, Declare War