Your friend Jim George thinks you'd be a great addition to Ricochet, so we'd like to offer you a special deal: You can become a member for no initial charge for one month!
Ricochet is a community of like-minded people who enjoy writing about and discussing politics (usually of the center-right nature), culture, sports, history, and just about every other topic under the sun in a fully moderated environment. We’re so sure you’ll like Ricochet, we’ll let you join and get your first month for free. Kick the tires: read the always eclectic member feed, write some posts, join discussions, participate in a live chat or two, and listen to a few of our over 50 (free) podcasts on every conceivable topic, hosted by some of the biggest names on the right, for 30 days on us. We’re confident you’re gonna love it.
Correct me if I’m wrong, but the founders probably did not envision a standing army of the size and capabilities we have today (and have had since WWII) at the CinC’s disposal. I agree they saw the purse as the main check, but isn’t it true also that the two year appropriation limit was seen as a way to essentially take away the executive’s toys should he use them other than how the legislature sees fit? In the world today how would that actually work? What would happen in reality should Congress determine they disagree with Obama’s use of our armed forces and refused to authorize defense spending?
Ricochet should host a debate live or in a special podcast between John Yoo and Senator Rand Paul moderated by Peter on this topic. That would be a news maker.
If I understand John correctly, the current military action against ISIS is covered by the two AUMFs. If, say, President Obama decided to engage in protracted military action against insurgent forces, say, in Libya (that were not al-Qaeda associates), then the President would have to come to Congress for authorization beyond the 90 day time limit. Is that correct?
King: I imagine that if all defense spending was cut the entire US military would have to be let go and all equipment mothballed. Though considering the the arguments brought up during the last budget battle and debt ceiling fight, the executive branch might ignore congress and order the treasury to keep printing out checks to service members and the military branch in the hope that congress fills in the funding retroactively.
Then it would be a test of wills. I imagine though that congress would never defund the whole military but rather construct all budgets with precise wording that prevents money from being spent in the way the president wants. Thus the president could veto the budget bill, but then he risks triggering a showdown as expressed in the first scenario.
I guess the question is can a president ignore congress (legally he can’t) but what if no one stops him? Congress pulls funding from a particular military operation. The president refuses to give the orders to stop the operation and orders checks to keep being printed. Then the military has to choose whom it must obey. If they ignore congress than they have to impeach the president or just give up. Can the president determine that the congress is acting foolishly and keep an operation going without money, simply by cutting bad checks? Would any bank refuse to cash a check made out by the US Treasury?
Actually that is a good question. How does funding work here. The US government doesn’t have a bank account does it? What happens if HR at a government agency that has no funding cuts a check to an employee. If they go to the bank and deposit it will it bounce back? Or does the bank just take it on Credit, and expect the government to work it out internally. For a short period of time I imagine this kind of thing could work, but at some point the banks will stop cashing the checks from government offices that have no actually budget. Right?
Exactly! Very good example of why Rand Paul is no presidential material.
Sad to see he is reverting to his father’s level. (or maybe he never really took off from that level)
The argument that the founders didn’t envision a “standing army”, misses some important points.
In 1776, conventional ground armies were easily demobilized or mobilized, since the primary weapons they carried were already the primary weapons that most of the citizenry carried: muskets.
However, there was a branch of the military which had more sophisticated weapons which could not be build and discarded at whim: the Navy.
The founders envisioned, and had, a permanent Navy. The reasons were obvious: for it to be an effective fighting force, it needs to be permanent, it need training, it need advanced technologies, it needs maintenance etc.
Fast forward to today, and the same technological considerations that applied to the Navy in 1776, apply to all the branches of the military today.
Simply put, you can’t have any form of modern military today, unless it is a permanent force. It’s a technological issue, just as it was at the time of the founders.
John, in essence, makes the case that global policing follows the letter of the Constitution. Maybe. But there’s the letter and the spirit. America has proved beyond doubt that clever people can make the letter mean anything. Thus our current mega government. But the spirit clearly prohibits a worldwide string of bases, permanent large standing armies, and the mil-indus complex necessary to support them. If one person follows the letter and the other the spirit, and they are in conflict, choose the guy who follows the spirit.
Even if you are a “letter man,” the Dec of War requirement is more important than John gives it credit for. “Spirt men” were not at all happy when Jefferson proved that the Pres is more important than the Constitution by starting the Barbary War without a declaration. But there was nothing they could do about it.
AIG makes the case that we need a large permanent standing army because of the nature of modern technology. Israel and Switzerland prove that connection wrong. If you are not interested in offensive warfare far from home or policing the world, you can have a first class military without a significant standing army. America once knew that and only gave up on the idea precisely because it wanted to police the world.
Sorry. There’s no way you can police the world without making the Constitution a living document. And once you make it living for foreign policy, you can’t say it’s not living for domestic policy. The Living Constitution gives us the warfare-welfare state and a towering edifice of debt that will likely bring us down – even if we have bases around the world and a president who can use it at will.
So Congress has no choice really. I guess that gives the president a considerable amount of latitude when it comes to conducting warfare.
Could the technological problem be overcome by turning the bases and equipment in them over to the national guard? Yes, there would be a lot of disparity in which states got what equipment, and the funding levels would remain very similar, but I believe it would be keeping much more in the spirit and the letter of the constitution for the states to have armies (and equipment) that are called into service when a national cause arises. I’m sure the left would never go for such an arrangement. They would be beside themselves if Perry suddenly had control of the armaments at Ft. Hood.
That is exactly what John is saying. Of course congress could limit the deployment of troops by demanding and refusing to fund over sea bases, refusing to ratify military alliances, and simply refusing to appropriate sufficient weaponry to make a military engagement a viable option.
If you have an Army the president can decide how to use it to fulfill his constitutional duties. Either congress limits those duties by defining them more narrowly through legislation or simply removes the tools from the presidents hands.
King, I think yours is the answer. Turn it all over to the Guard. That would decentralize our military – as was intended by the letter and spirit of the Constitution – except when attacked. And the mind boggles. Can you imagine if governors were in charge? It would be the death knell not only of policing the world but centralized mega-government. It would, in fact, mean turning off the road we’re on and taking another that leads back towards the Constitution.
Only a fantasy, I’m afraid, but one I’m enjoying indulging right now.
Let’s just invade everyone!
Once we control all the world governments then we can have peace and prosperity!
(only slightly sarcasm)
Great discussion on turning things over to the Guard, and an issue I touched on here. The operative concept is:
… how do we get a large force ala Cold War days capable of fighting a protracted conflict without busting the bank? I believe the answer lies in using the reserve components more wisely. To that end, and here’s the tricky part, I would move all combat arms formations from the National Guard to the Army Reserves. The Guard needs bulldozers and MPs; not battle tanks and artillery pieces. Cadre divisions could be formed and training would fall under “big Army” to ensure accountability and standardization. Also, a physical relocation of most units would not be necessary so community ties shouldn’t be affected that much. The advantage is these units are already federal and would not have to run the state wickets to muster up and head out.
Even though the Army is more technologically advanced than in previous wars, the lion’s share of “major war prevention” would fall on the Air Force (e.g., Global Strike Command), Navy, and the Marines. This is not to ignore the Army, but essentially have it revert to a traditional role of the premier long campaign land force. A core active duty force must be maintained, but the size and composition is up to debate. What we can’t do is fall into the trap of developing a force with a “silver bullet” mind set; i.e., funding only one type or the other (light vs. heavy for example) which would result in a force writ large which could handle only limited operations in the spectrum of warfare. Speaking of silver bullets, we should expect said technology to enable our forces to fight better, not as a substitute for boots on the ground and sound military judgement.
Although I hate the idea of the living constitution as much as the next man, it seems fruitless to wonder what the Framers thought about having a standing army vis-a-vis their foreign policy challenges. A war in Europe could start and continue for weeks, if not months, before anyone in the US knew about it. Theirs was a time when getting an answer to a question from an American officer in Europe or elsewhere to his commanders in the US would take 3 or 4 months.
Today, we have to be ready to respond to world events instantaneously. Not that we always have to respond, but if we are to control events to our benefit, we can’t start mustering military units, training non-coms, and developing weapons systems only after the reason for fighting arises. The more coordination problems that we put in our own way, the less likely we are to respond effectively, and that means soldiers die.
I don’t believe that having a standing army ready to fight means that we will have more war. In fact, it could be the opposite. Being ready to fight deters aggression.
If he hadn’t before, I think this certainly disqualifies him to be president. I’m tired of him and his father and the subtle anti Americanism they preach. They are in tune with the blame America first crowd.
I have not seen Sen. Paul take that position; as I read the passage below, he’s arguing that the president does not have the authority to initiate hostilities without congressional approval unless the country is under attack:
That may or may not be constitutionally sound, but it’s a very different argument than the one John presented him as making.
My problem is that Rand Paul is looking the wrong place. He should focus on the problematic parts of the AUMFs. If Congress wants to rein this in, then it needs to modify them formally, not simply complain.
The 2001 AUMF has become an enabling act for repeated interventions in just about any part of the Muslim world. The “such nations, organizations, and persons” in the key clause can, and has been, stretched widely:
The Iraq AUMF is written even more broadly:
The President is free to act, so long as he makes a formal determination about the inadequacy of diplomacy and that:
I believe that both AUMFs explicitly say that they constitute “consent” under the War Powers Act. Unless Obama didn’t fulfill another element of the AUMF, this position is dubious.
Even if the AUMFs can be read that way as a matter of legality — I’m not in a position to comment one way or the other on that — doing so strikes me as a very bad foundation on which to wage a war on IS.
President Obama was elected in no small measure on a platform of ending the Iraq War. Unfortunately, he delivered on that promise and we withdrew. He was then subsequently re-elected in no small measure as being the man who ended the Iraq War. I think all of this was a bad decision, but it’s definitely the decision that was made.
Then along came IS, ruined the narrative and the administration claims that (legally) the war never really ended, just kidding.
While I agree Paul should seek to repeal or amend the AUMFs if he believes what he says, I really think the administration should have sought a new one.
So long as you interpret the current circumstances as applying to the AUMFs. Again, I think you can make a legal argument that they do, but I think it’s extremely bad politics and policy to rely on such an argument.
How many of you have actually served in a National Guard?
As I posted in another comment, I agree. The problem, however, is with the AUMFs themselves. It is too easy to use them to rationalize intervention.
They need to be fixed, not complained about.
Understood and — I think — agreed.
Direct question to John:
Regardless of the applicability of the existing AMUFs, do you think there’d be any harm in passing a new one — or amending the existing ones — to reflect the current circumstances?
John,
I am very much predisposed to your point of view. The American President needs to have enough power to deal with problems in the world as Commander in Chief. Currently we are suffering from a chief executive who doesn’t seem to realize the importance of his role.
However, Senator Paul is not to be underestimated. I take it that your version of Madison and the Federalist Papers is the correct one. Unfortunately, this leaves me with an unanswered question. If the Congress Declare War Clause is meant to be a check only through the power of the purse why is this not made explicit in the Constitution itself?
I claim no expertise in this, please direct me to sources which support your interpretation.
Regards,
Jim
“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.”
Alexander Hamilton, Federalist #69.
You’re right about the AUMF, I think, but your position on the constitution is a bit ridiculous in this case.
The President and the Congress have violated their oaths to uphold the Constitution by allowing the President to declare war. That doesn’t make it law, it is in fact the reverse.
I am, by the way, tired of the Progressive “we’ve been ignoring the Constitution for this long, why start following it now?” argument, and find Rand Paul refreshing for his conservative approach toward law.
More:
“James Wilson assured the Pennsylvania Ratifying Convention, “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”…”
“…George Washington’s operations on his own authority against the Indians were confined to defensive measures, conscious as he was that the approval of Congress would be necessary for anything further. “The Constitution vests the power of declaring war with Congress,” he said, “therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.””
“…Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense”; Congress alone could authorize “measures of offense also.” Thus Jefferson told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.””
So the “no one in the framing” assertion is a fantasy.
That link addresses Prof. Yoo’s argument directly:
“If Yoo’s argument were correct, we should expect to see presidents in the years immediately following ratification of the Constitution taking bold military action without concerning themselves much about the will of Congress, which according to Yoo had only the power to issue declaratory statements. But as we have seen in the examples of Washington, Adams, and Jefferson, the opposite was in fact the case; these early presidents were careful to defer to Congress.”
While I agree that Paul’s seeming absolutism on needing to be attacked before responding is incorrect from a policy position. And, I suspect if pressed he would not be so absolute. Yoo is wrong in that 13 and 14 year old acts of congress cover the president is war adventures in Syria, much less, Libya. And, as for those same acts vis-a-vis new Iraq adventures, it’s debatable.
Wow wow wow! Wait a minute!
Israel has an active force of 176,000 men and women, which comes out to a bit over 2% of their population (and of course, about 1/3 of their population is not included in their…draft).
In percent of population under arms, Israel has about 4 times more than the US.
Israel has the largest military in the ME. Not a permanent standing army?
Switzerland has no permanent standing army??
Switzerland also has about 147,000 men at arms, representing close to 2% of their population. Again, about 4 times higher than the US, on a percentage bases. Switzerland, like Israel, not only has a standing army, and very large one, but also has a draft.
Do “libertarians” just make up reality on purpose, or do they simply chose to ignore it?
Absolutely right. This “US polices the world” argument is a cop out.
Does AIG always assign one person’s faults to an entire group?
Matty Van is mistaken on the facts: both Israel and Switzerland have large standing armies, as you observe.
I’m sure that John Walker, the libertarian living in Switzerland, can explain the details.
But I think you commit the bigger fault, by impugning all libertarians because of his error.