Doug Bandow, a nationally syndicated columnist, is a senior fellow at the Cato Institute and the author and editor of several books, including Tripwire: Korea and U.S. Foreign Policy in a Changed World.
When the U.S. attacked Yugoslavia earlier this year, it inaugurated war against another sovereign state that had not attacked or threatened America or an American ally. The President, and the President alone, made the decision. The constitutional requirement that only Congress shall declare war is obviously a dead letter. Yet the administration’s embarrassing bungling in Kosovo illustrates just why the Framers intended that the decision to go to war be vested in the legislature.
Presidential war-making has become a constant. Ronald Reagan invaded Grenada; George Bush attacked Panama. Neither bothered to consult Congress. Bush planned to attack Iraq irrespective of Congress, explaining that “I don’t think I need it” when asked if congressional approval was necessary. Why? “Many attorneys,” he said, had “so advised me.” He apparently didn’t bother to read the Constitution himself.
President Clinton ended up only a Carter-brokered agreement away from invading Haiti and has promiscuously attacked other nations or groups within nations—Afghanistan, Bosnia, Iraq, Somalia, Sudan, Yugoslavia—without appropriate legislative authorization. Like his predecessor, Bill Clinton has resisted any attempt to restrict his war powers. In late 1993 the one-time law professor and state attorney general claimed that “the Constitution leaves the President, for good and sufficient reasons, the ultimate decision making authority.” He opposed congressional attempts to restrict his plans in both Bosnia and Haiti and more recently pressured Congress not to vote on his plan to launch air strikes on Yugoslavia and place 4,000 peacekeeping soldiers in Kosovo.
Alas, this executive presumption goes back to Richard Nixon, Harry Truman, and, indeed, much further. It was also shared by the various potentates who once ruled Europe. Observed President Abraham Lincoln: “Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object.” America’s founders intended to take a different path.
Article 1, Sec. 8 (11) states that “Congress shall have the power . . . to declare war.” As Lincoln explained: “This, our Convention, understood to be the most oppressive of all Kingly oppressions; and they naturally resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”
Of this there is no doubt. James Madison wrote in 1793 that it is necessary to adhere to the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.” Pierce Butler of South Carolina proposed giving the president the power to start war, causing Elbridge Gerry of Massachusetts to exclaim that he “never expected to hear in a republic a motion to empower the executive to declare war.” The convention rejected Butler’s motion.
Why? The founders wanted to make it more difficult to go to war. Thomas Jefferson wrote that “We have already given . . . one effectual check to the dog of war by transferring the power of letting him loose.” The nationalist Alexander Hamilton reassured early Americans who feared that the proposed Constitution granted the president powers too similar to those of Britain’s king. The president’s authority, he said, was “in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.”
Virginia’s George Mason, who favored “clogging rather than facilitating war,” was blunt: the president “is not safely to be entrusted with” the power to make war. This view has certainly been validated by history. President Franklin Delano Roosevelt schemed to get America into war; both George Bush and Bill Clinton conducted dubious propaganda campaigns to build public support for their executive war-making. The pervasive dishonesty of and abuses perpetrated by executive leaders in the United States and elsewhere demonstrate the importance of circumscribing their power.
The requirement of a declaration of war obviously offers no guarantee against ensnaring the nation in costly and unnecessary overseas conflicts. But the need to win legislative assent still limits presidential discretion, while a debate puts the issue before voters and allows them to hold Congress responsible for government policy.
In a complex world filled with a variety of potential threats, there will always be unclear instances, perhaps retaliation against a terrorist group, where a president might claim colorable constitutional authority for unilateral military action. But the number of hard cases are few. There is no doubt that congressional approval is required to launch an aggressive war against Yugoslavia.
Presidents have been able to ignore the Constitution’s clear strictures only because successive Congresses have allowed them to do so. The partisan flip-flops have been dazzling: Republicans raged against Truman’s actions but defended Nixon; Democrats demanded that Bush go to Congress but encouraged executive war-making by Clinton. Many legislators care less about dead soldiers than dead careers. Avoiding a vote allows them to avoid taking any responsibility on the most serious of issues, war and peace.
It is time for all sides to re-examine their commitment to the Constitution. Presidents take an oath to support the Constitution; that means going to Congress for a declaration of war. Legislators, who make the same pledge, should want to protect not only the Constitution, but also their institutional authority. Yet the issue is far more fundamental than just a political struggle between the executive and legislative. The nation’s security is at stake.
As a result of presidents’ routinely plunging America into overseas conflicts that are at best tangentially related to U.S. security, hundreds of thousands of soldiers have been killed, hundreds of billions of dollars squandered, numerous civil liberties lost, and a host of government bureaucracies spawned. The issue of war and peace is simply too important to leave to the president.
Perhaps this never has been more obvious than after watching this administration turn a minor tragedy into a monumental crisis in Europe’s tar baby, the Balkans. The President and his advisers were surprised when the Albanian Kosovars first rejected the Rambouillet diktat, surprised when bombs did not compel Belgrade’s acquiescence, surprised when the Serbs struck back at the Kosovo Liberation Army and the Albanian Kosovars, surprised when refugees overwhelmed neighboring countries, surprised at the capture of U.S. soldiers stationed in Macedonia, and surprised that the conflict continued, week after week. A full and unfettered congressional debate could have prevented the looming debacle.