In these pages, Rich Lowry wrote: “The War Powers Act is an excrescence on the American constitutional order that deserves to be the dead letter that President Obama is making it. The president’s inherent powers as commander in chief do not depend on affirmative acts of Congress.” This is similar to the position of the Wall Street Journal editorial board, which recently wrote, “The Constitution gave Congress the right to declare war but gave the President the power to manage conflicts and use the armed forces when needed as Commander in Chief.”
With all due respect to Rich and to the Journal, the notion that presidents should decide when to initiate armed conflicts, while Congress should merely sit by or defund, is simply not the Founders’ understanding of the Constitution’s allocation of war powers — and it is a very dangerous notion to advance. As I have previously written,
The American Founders’ basic (and sensible) division of war powers under the Constitution is that Congress is empowered to decide whether to engage in war, and the president is empowered to decide how to carry out war once it has begun. The Constitution says, “The Congress shall have Power . . . To declare War,” and this was not intended to be merely a legal formality. Even Alexander Hamilton, the most ardent and forceful advocate of executive power in the founding era, said that Congress “can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War.”
If military action must be undertaken with great “decision, activity, secrecy, and dispatch,” then the president can reasonably claim legitimate constitutional authority to act. It would have made little sense, for example, for President Reagan to have asked Congress to authorize his airstrike against Libya in advance, given that it was a one-time strike that required the element of surprise and was not a precursor to a larger war. But Obama had enough time to ask the United Nations on Libya, and he therefore certainly had the time — and the constitutional obligation — to ask Congress. Some 80 days later, he still hasn’t asked for authorization and is now overtly defying the law (under the War Powers Act) as well as the Constitution.
None of this is to say that we should, or should not, be in Libya. It is simply to say that we should respect our constitutional forms. The truth about the War Powers Act is that it grants the president too much authority, not too little. It is only a partial reining in of the grossest excesses of war-making by presidents in the post-World War II era, the most egregious of which was President Truman’s unilateral decision to engage us in war in Korea.
Justice Joseph Story’s Commentaries on the Constitution (1833), the best work on the Constitution this side of the one produced by Hamilton, Madison, and Jay, includes this passage:
The next power of congress is to “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” . . .
The power could not be left without extreme mischief, if not absolute ruin, to the separate authority of the several states; for then it would be at the option of any one to involve the whole in the calamities and burthens of warfare. . . .
The only practical question upon this subject would seem to be, to what department of the national government it would be most wise and safe to confide this high prerogative, emphatically called the last resort of sovereigns, ultima ratio regum. In Great Britain it is the exclusive prerogative of the crown; and in other countries, it is usually, if not universally confided to the executive department. It might by the constitution have been confided to the executive, or to the senate, or to both conjointly.
In the plan offered by an eminent statesman in the convention, it was proposed, that the senate should have the sole power of declaring war. The reasons, which may be urged in favour of such an arrangement, are, that the senate would be composed of representatives of the states, of great weight, sagacity, and experience, and that being a small and select body, promptitude of action, as well as wisdom, and firmness, would, as they ought, accompany the possession of the power. Large bodies necessarily move slowly; and where the co-operation of different bodies is required, the retardation of any measure must be proportionally increased. In the ordinary course of legislation this may be no inconvenience. But in the exercise of such a prerogative, as declaring war, despatch, secrecy, and vigour are often indispensable, and always useful towards success. On the other hand it may be urged in reply, that the power of declaring war is not only the highest Sovereign prerogative; but that it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger, that war will find it both imbecile in defence, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted, as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted, as to its time, and the ways and means of making it effective. The co-operation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two thirds of both houses. . . .
This reasoning appears to have had great weight with the convention, and to have decided its choice. Its judgment has hitherto obtained the unqualified approbation of the country.
Story is clearly not speaking of the power to declare war as a mere formality, but as the crucial power to decide whether to engage in military hostilities.
— Jeffrey H. Anderson, an independent writer, was the senior speechwriter for Secretary Mike Leavitt at the U.S. Department of Health and Human Services, and a professor of American government at the U.S. Air Force Academy.