White House lawyers have reportedly told President George W. Bush that he doesn’t need congressional authority to go to war. For political reasons, the President says he will seek “congressional support for U.S. action” in Iraq. But will he agree to be bound by a no vote? If not, his request is meaningless.
The Constitution explicitly requires that Congress shall “declare war,” and the Founders’ explicit intention, even while recognizing the President’s need to be able to respond defensively in an emergency, was to limit his war-making authority. Virginia’s George Mason, for instance, spoke of “clogging rather than facilitating war.” Thomas Jefferson wrote of creating an “effectual check to the dog of war by transferring the power of letting him loose.” Even Alexander Hamilton agreed.
Alas, Bush 43 seems to be following in the footsteps of Bush 41. The latter stated, “I don’t think I need it,” when asked if congressional approval was necessary before attacking Iraq more than a decade ago. Why? “Many attorneys,” he said, had “so advised me.” Too bad neither Bush apparently bothered to read the Constitution.
The president is the commander-in-chief, but only within the legal framework established by the Constitution and Congress. He cannot create a military—Congress must authorize the forces and approve the funds. Congress is also tasked with setting rules of war and organizing the militia. The president can negotiate a treaty ending a conflict, but the Senate must ratify it.
If the President can unilaterally order an attack on a nation halfway around the globe that has not provided a traditional casus belli, the Constitution is dead. And if conservatives treat the Constitution as dead when it suits them, they should stop complaining when federal judges, “liberal” activists, and Democratic politicians do the same.
Why, for instance, require congressional approval to impose taxes and borrow money? The Constitution lists this as one of the legislature’s enumerated powers, but that outmoded provision need not dictate present policy.
If the president sees a critical need, he shouldn’t have to wait for Congress to act. Especially if selfish, petty, and political legislators say no.
Nor should the nation’s fiscal health be impaired by pork-minded congressmen who lard essential bills with special-interest subsidies. Whatever the merits of the Founders’ scheme, the president should be able to cut wasteful spending unilaterally, without having to veto entire bills or fear being overridden. Article 1, Section 8, empowers Congress to “establish an uniform Rule of Naturalization” as well as bankruptcy and patent laws. But look at what a mess legislators have made of the first, with foreigners coming to America to kill. Populists are doing their best to block bankruptcy reform. Patents are currently subject to a bitter congressional fight. Forget the Constitution. Let the president decide. Congress is allowed to establish post offices. It did so, and now Americans are suffering under an inefficient monopoly. Yet the postal unions block any change. The president should act unilaterally.
The problem of judicial activism would have disappeared had President Franklin Delano Roosevelt been able to pursue his “court-packing” plan. Why should some abstract constitutional provisions and congressional intransigence have prevented him from doing what had to be done?
Indeed, we could dispense with congressional approval of presidential nominations. The Senate’s “advise and consent” function is outmoded; the president should simply declare his nominees to be in office.
Moreover, consider the potential of executive predominance during the ill-fated health-care debate of 1993–1994. The crisis should have been obvious: Tens of millions of people without health insurance, sharply rising medical and insurance costs, growing popular dissatisfaction with the system. Yet rather than working with the president, Congress thwarted Bill Clinton’s efforts. The GOP was especially shameless, using the issue for its own electoral gain.
Now, almost a decade later, the same problems remain with us. If only the President had had the courage to act unilaterally. Consider the speech that he could have given explaining why he was putting the Health Security Act into effect on his own authority:
“I realize that some people of good will believe that the Constitution gives this power to Congress. But there are few issues more important than Americans’ health. Many lawyers have told me that the Constitution established an energetic chief executive, vesting him with final authority for protecting the public. In my view, that requires acting to assure secure health care for all Americans.”
Why stop there? The Constitution’s electoral scheme is notably defective. The mere fact that more than two centuries ago some dead white males concocted a system as cumbersome as the electoral college doesn’t mean that we should follow it today. And if Congress won’t approve a constitutional amendment to fix it, why shouldn’t the president unilaterally recognize the candidate who has greater popular legitimacy by winning the most votes?
What is most surprising is not that presidents routinely attempt to expand their war-making authority, but that Congress is so ready to surrender its power. Of course, the partisan pirouettes are staggering.
Democrats outraged at what they saw as persistent abuses by Presidents Richard Nixon, Ronald Reagan, and George Bush suddenly gained a strange new respect for executive power when President Clinton was preparing to invade Haiti and attack Serbia. Republicans routinely defended executive privilege by “their” presidents and criticized Clinton’s propensity to bomb other countries unilaterally.
Still, why surrender the most important power, whether or not to go to war, to a competing branch? House Majority Whip Tom DeLay explains that the President “has said he’s going to come to Congress when he decides what needs to be done and when it needs to be done.”
But DeLay must have taken an oath to a different Constitution than the one under which we live. The U.S. Constitution says that the Congress decides what needs to be done. DeLay might prefer that the Constitution read differently. It doesn’t, however.
For all of the bizarre constitutional interpretations emanating from law schools, courts, and op-ed pages, most people recognize that the President’s domestic powers are circumscribed by the law of the land. So too are his war powers. President Bush needs to do more than request Congress’s approval for war in Iraq. He has to abide by its decision.
Doug Bandow, a nationally syndicated columnist, is a senior fellow at the Cato Institute and the author and editor of several books.