War

Waging War Is a Decision for Congress Alone

If the political class ignores James Madison's warnings, it will do so at its peril.

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debaird/Wikimedia

James Madison is commonly referred to as the Father of the Constitution in large measure because, in the secrecy of the Constitutional Convention in Philadelphia in 1787, he kept the most complete set of notes. He also had a very keen mind and a modest demeanor and an uncanny ability to solidify consensus around basic principles that are woven into the Constitution.

After he wrote the Constitution and before he became Thomas Jefferson's secretary of state and eventually a two-term president, he was a congressman from Virginia. When he spoke on the floor of the House, the parts of the Constitution he was most adamant about restrained the president. Chief among those restraints, in Madison's view, was the delegation to Congress, and not to the president, of the power to wage war.

Madison knew that kings became tyrants through war. He fervently believed that by keeping the war-waging power in the hands of the president and the war-making power in the hands of Congress, the Constitution would serve as a bulwark against tyranny. He explained:

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. … No nation could preserve its freedom in the midst of continual warfare."

Madison is instructive for us today as President Obama decides whether to ask the nation to go to war or to order hostilities on his own.

Under the War Powers Resolution (WPR), the president can deploy U.S. forces anywhere outside the U.S. for 180 days upon his written notifications of congressional leaders. He does not need a declaration of war to deploy forces for 180 days, yet he cannot deploy forces beyond that without express authorization from Congress.

Obama used the WPR as the legal basis for his air invasion of Libya in 2010. That resulted in the destruction of the government there, which the U.S. had supported with $1 billion annually since 2005 (we literally destroyed armaments that we had paid for); the death of Col. Gadhafi, whom President George W. Bush and British Prime Minister Tony Blair called a friend in the war on terror; the instability of the nation; the death of our ambassador; and the seizure by mobs of U.S. government-owned real estate. The president declined to use the WPR authority last year when he sought—and did not receive—express congressional authority to use military force to degrade the offensive weaponry of the Syrian military.

The WPR is a two-edged sword. Though the courts have never reviewed it, it is certainly unconstitutional, as the courts have consistently ruled that one branch of government cannot give away its principal constitutional powers to another. Congress surely cannot give its war-making power to the president any more than it can give it to the courts. So, the political question with respect to war remains: Who will take the heat for fighting a war against ISIS—the president via the WPR or Congress via the Constitution?

Yet, beyond the political question is the more profound question of who will enforce the Constitution. In addition to Madison's fears about foreign wars leading to domestic tyranny, there are profoundly practical reasons why war is a decision for Congress alone.

Here is where it gets dicey and inside the Beltway. Republicans want war because they see ISIS as a dreaded enemy and can use its televised barbarity to rally voters to their candidates. Democrats want war because they can use it to show the voters that they, too, can be muscular against terrorists. Yet, Republican leadership in the House is reluctant to permit the House to debate and vote on a resolution authorizing hostilities, because they can't agree on how to instruct the president to end the war.

But war often has surprise endings and unexpected human, geopolitical, and financial consequences. A debate in Congress will air them. It will assure that the government considers all rational alternatives to war and that the nation is not pushed into a costly and bloody venture with its eyes shut. A congressional debate will compel a written national objective tied to American freedom. A prudent debate will also assure that there will be an end to hostilities determined by congressional consensus and not presidential fiat.

What should Congress do? It should declare once and for all that we will stay out of this ancient Muslim civil war of Shia versus Sunni. We have been on both sides of it. Each side is barbarous. In the 1980s, we helped the Sunni. Now we are helping the Shia. Last year, Obama offered to help ISIS by degrading its adversaries; now, he wants to degrade ISIS. We have slaughtered innocents and squandered fortunes in an effort to achieve temporary military victories that neither enhance our freedom nor fortify our safety. We will only have peace when we come home—when we cease military intervention in an area of the world not suited for democracy and in which we are essentially despised.

I suspect most Americans have had enough of war, and they understand that if the political class ignores Madison's warnings, it will do so at its peril.

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  1. He fervently believed that by keeping the war-waging power in the hands of the president and the war-making power in the hands of Congress, the Constitution would serve as a bulwark against tyranny.

    Then perhaps he should have convinced the Framers to affix actual penalties to a president who violates that principle and a congress that is too willing to allow its responsibility slide to the president.

    1. There is impeachment. And voters get the opportunity to remove representatives every two years. Of course, the former hasn’t been used to great effect, and the latter has yielded mixed results.

      1. Maybe I should have specified criminal penalties. It should be criminal for any state authority to violate their constitutional limits.

        1. Who’s going to enforce it? The executive branch controls all the people with guns.

        2. It should be is criminal for any state authority to violate their constitutional limits.

          FTFY

        3. If the politics of the day won’t even permit the Congress to impeach, from where do you think they’ll summon the courage to prosecute crimes?

          No checks on power matter if the public is too apathetic, cynical, or partisan to support enforcement; and coupled with a media that will make any enforcement seem like outlandish partisanship when it affects their guy, there is practically no downside to usurping more power.

  2. Congress is more powerful than the Roman Senate ever was, yet it’s letting a tyranny develop without a peep. So much for checks and balances.

    1. Congress is acting like the old Roman senate in a way.They protect their own interests first.

      1. Everyone protects their own interests first. The only way to design a functioning government that works for the common good is to make sure:

        1. It is in the interest of all agents of government to act in the common interest.

        2. Penalties for not acting so are sufficiently harsh so as to enforce the c9ncept.

        3. Government agents are unable to rewrite the rules.

        Our current Constitution is heavy on #1, addresses #2 only tangentially and never in concrete terms, and has failed utterly at #3.

        1. Actually, our constitution is heavy on #4 – establish a structure so that those in power are set up in opposition to each other.

          Except the power of factions and centralization of power have tended to erode number 4 beyond belief.

          1. That’s an outgrowth of #1 and #2. They use #3 to undermine the limitations.

      2. I’m holding out for Congress to behave like the Roman senate in which senators assassinated each other and emperors labeled tyrants.

        1. “In some parts of the country, you can’t say ‘E tu, Brute?’ without a slight Indian accent.”

    2. Relying on the government to restrain another part of itself, and expecting your rights to be thus preserved, is like relying the mafia to restrain another part of itself and thus preserve your rights.

      Really, just substitute “mafia” in every instance you see “government”, and clarity in political discourse will thrust itself upon you.

      1. That’s not quite what I meant. If the current Congress won’t do it’s job, it needs to be replaced.

        1. So, to protect our rights, if the current “mafia” won’t do it’s job, it needs to be replaced?

          Just try it for one day — every time anyone, including you, refers to any part of the government, substitute the word “mafia” and see if the statement still sort of makes sense.

          1. Hey, if you don’t like it, you can just exercise your right to vote for the other side’s mafia.

          2. It’s only what we keep rewarding. This system fails because, ultimately, we’re idiots. When we have a dictator some day, many people will sit around wondering how that happened.

            1. “Some day”?

      2. That’s a good one.

        Another substitution I like to pull is with “government” and “corporation”. I like to point out to proggies that the government is really just a corporation that we’re forced to choose.

        Most of them just ignore it, but once in a while, I get some bulging eyes as they realize the parallel.

    3. So much for checks and balances.

      Cause the checks keep coming and the balance is infinity.

  3. armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few

    If only this were the only way. The welfare state is far more effective.

  4. I have written my congressman and two senators asking them to demand a vote (and then for them to vote against any use of force). Can’t wait to read their responses.

    1. “Thank you for your views ….”

      1. Thank you for contacting me regarding the United States’ efforts to combat the Islamic State in Iraq and Syria (ISIS). I appreciate hearing from you.

        As you know, early this summer, ISIS launched a large-scale offensive campaign in Iraq, seizing control of several major cities and strategic territories. The group has also been operating in Syria and now controls large swaths of territory in both countries. The group not only threatens innocent civilians in Iraq and Syria, but Americans as well. I was deeply saddened when videos were released depicting ISIS militants beheading two brave American journalists, James Foley and Steven Sotloff.

        In response to ISIS advances, President Obama has authorized the deployment of hundreds of military advisers to Iraq in order to train, advise and support the country’s security forces, as well as additional troops to bolster security at the U.S Embassy and the airport in Baghdad. He has also authorized airstrikes in Iraq to eliminate ISIS targets and protect religious minorities in the country.

        On September 10, I was glad to finally hear the President begin to outline a strategy for confronting ISIS and the serious threat the group poses to our national security. I expect this to be just the beginning of ongoing consultation and cooperation with Congress on this matter.

      2. [part 2]
        Further, I support the President’s plans to expand airstrikes against ISIS targets and believe it is a positive step that the President is asking for Congressional authority to arm and train forces within Syria to fight members of ISIS in their country, as this is clearly beyond the current scope of our operations. I have always said that the President must consult with Congress before undertaking military operations abroad ? whether it was Libya in 2011, or Syria last year. That is why I joined 79 of my colleagues in July in sending him a letter stating our belief that the use of military force is something that Congress should fully debate and authorize.

        Lastly, I was pleased to be able to participate in a classified briefing for Members of Congress, and I expect we will receive more comprehensive details that will be necessary as we consider the President’s request. Please know that I will keep your thoughtful comments in mind as I continue working with my colleagues to address this critical situation.

        Thank you again for sharing your views with me. I appreciate the opportunity to represent Maine in Congress.
        With warmest regards,

        Michael H. Michaud
        Member of Congress

    2. Did you send them with a trigger warning?

      1. Hey, Rufus, in *this* country we don’t use the t-word in a letter to a government official.

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  6. To sum up: a few hours before 9/11, the president unilaterally declared war on people in Iraq.

    Totally unlike Bush, who waited until after 9/11 to sort of seek Congressional approval to do roughly the same thing.

    1. A nation of terrified pussies with big guns

    2. At least the AUMF for Iraq is arguably a declaration of war. Not so much the one against terror, which has become some weird open-ended authorization to kill bad people.

      Congress is bad enough and would probably give an AUMF against Iraq. But Obama doesn’t thinks he needs that, even as window dressing.

  7. But war often has surprise endings and unexpected human, geopolitical, and financial consequences. A debate in Congress will air them. It will assure that the government considers all rational alternatives to war and that the nation is not pushed into a costly and bloody venture with its eyes shut. A congressional debate will compel a written national objective tied to American freedom. A prudent debate will also assure that there will be an end to hostilities determined by congressional consensus and not presidential fiat.

    Well said, aside from the “assure” parts.

      1. And racist. Don’t forget racist.

  8. By my count, Napolitano only used two question marks. That’s progress.

    1. What if he were to use none?

  9. When did we get an Argonath?

  10. So, andrew, if Obama went to congress and got a lop-sided vote in Congress for approval of a military action, that is overwhelmingly supported by the public, against ISIS would you be satisfied?

    “offered to help ISIS by degrading its adversaries”

    LOL. Your ODS is making you krazy. Getting rid of Assad (a mission I whole-heartedly do not support) isn’t the same thing as offering to help Al Queda. Just because we were behind various schemes to get rid of corrupt South Vietnamese governments doesn’t mean we were offering to help the Vietcong. Has anybody ever called you a hack to your face, andrew? Just wondering.

    1. Just because we were behind various schemes to get rid of corrupt South Vietnamese governments doesn’t mean we were offering to help the Vietcong.

      Further proof of “good intentions do not trump predictable outcomes”…

  11. I see that someone already has…

    http://thedailyshow.cc.com/vid…..napolitano

    Yes, Andrew, a war by American slavers against a few taxes = liberty

    A war to get rid of slavery= tyranny.

    I’ve got it, andrew. You have a remarkable mind. Can I get a 9/11 was an inside jobz y’all?

    1. A war to get rid of slavery= tyranny.

      The war I presume you are referring to was never to “get rid of slavery”. If that was Lincoln’s objective, then no one in his admin. knew about it, as he only ever professed it was to “save the (mystical) union” that he created in his mind. Of course, he destroyed the voluntary union created by the founders by using aggressive military force. I don’t expect you to understand any of this, but it needed to be said.

    2. No; more like “Lincoln is unjustly mythologized, and could have accomplished the same ends via much less drastic means.”

      That’s essentially the whole of his argument, but you’re probably one of those trained seals who claps and cheers at John Stewart from your couch.

      1. No; more like “Lincoln is unjustly mythologized,”

        Andrew calls Lincoln a warmonger and a tyrant who egged the South into a destructive war that killed nearly a million people. That’s not fighting the mythologization of Lincoln, that’s calling him a dictator and a war criminal.

        I’m wondering what methods you think Lincoln could have used to bring South Carolina back into the Union… Kissing slavers on the hiney probably wouldn’t have worked although conservatives like you probably would have been for it.

        1. Why should he have? Wasn’t the Constitution joined voluntarily? What makes you think it was about slavery when Lincoln said it wasn’t (several times)?

          Does Scotland have a right to secede? How about South Sudan? How about the 13 Colonies?

        2. Why would you use “american” in your name when it was a term used by slavers to describe their new country?

        3. I’m wondering what methods you think Lincoln could have used to bring South Carolina back into the Union

          The federal government of the united States was never granted the power to prevent a State from leaving a union that it had voluntarily joined.

          Hypothetical: Tomorrow, Sept. 12 2014, Virginia votes to secede. The proper response from the US government is a) to let the Commonwealth peacefully break it’s political bonds with the US, or b) Launch an invasion, killing 100s of thousands of its citizens. Something tells me that you would prefer the latter.

        4. “I’m wondering what methods you think Lincoln could have used to bring South Carolina back into the Union… Kissing slavers on the hiney probably wouldn’t have worked although conservatives like you probably would have been for it.”

          It’s not my argument, sparky. It’s someone else’s. You might read his book if you want to know more. Unlike you, when I don’t know enough about a subject to answer a question, I don’t provide an answer anyway. I just admit I don’t know.

          “Conservative?” Haha. Wow, you nailed me. Is it my use of recreational drugs, my working on behalf of criminals and immigrants, or my intense dislike of cops that gave me away?

    3. Here’s a novel concept: how about critiquing the subject of this column instead of dredging up something the author said months ago about a completely different topic.

      Oh wait, you probably don’t have any valid critiques, which is why you’ve chosen to attack the messenger instead. You have to be the dumbest most dishonest piece of shit I’ve ever seen. You make Tony look like a paragon of intelligence and good faith argumentation.

  12. After so many examples of Congressional passivity, couldn’t a case be made that the war powers have passed over to the president by adverse possession?

    It might be interesting to try, if only to see if anything can get Congress’s attention.

    1. Maybe if adverse possession was valid against the government, which it isn’t (to my knowledge.) But an interesting thought.

  13. …if the political class ignores Madison’s warnings, it will do so at its peril.

    What peril? 90% of incumbents will be re-elected regardless of how this plays out. I fail to see any peril from their POV.

  14. Congress is happy to hand off the war button to the president because if things go well they can crow that they caused it, if things go foul they can claim the president acted unilaterally. The first act of a successful politician is to set up a scapegoat.

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