John and I have rather different views on the relationship between Congress and the President as it relates to the control of military operations against foreign nations. In my view, the traditional account is in fact correct. The power to declare war lies in the Congress; the power to execute the decision to declare war rests in the President. The power to declare as I understand is the power to change the state of relations between the United States and a foreign nation, so that the laws of war now apply to them. The function of the President is then to lead that military effort as the commander-in-chief, not of the United States writ large, but of the Army and the Navy, and the militia when called into the active service of the United States—which it can be only when done pursuant to some Congressional action. As was made very clear in Federalist Number 69, the President’s power are far more limited than those of a king or even the governor of a state.
This particular point of view is consistent with the text of the provisions as they stand. Under John’s view, there really is not much that Congress has to do, and nothing that it can do seems to make much difference at the critical moment of transition from peace to war. To be sure, political restraints kick in later on, but under Yoo’s view, the President could take the initiative and decide to bomb Russia without congressional authorization, which is about as inconsistent with the Founders’ theory of checks and balances as one could imagine.
This straight-forward analysis is not upset by looking at the parallel provisions in both the articles of Confederation that deal with war and those in other portions to the Constitution. John is right to note that both of these use the word “engage,” as their operative term. Thus the Articles of Confederation states in Article VI: “No State shall engage in any war without the consent of the united States in congress assembled, unless such State be actually invaded by enemies, …” Wars between states were not regarded as out of the question with respect to the Constitution either, for Article I, section 10 contains the rather chilling language “Article I, Section 10: No State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
But there is this critical distinction. The word “engage” is sufficiently broad to cover both the decision to declare war and the various decisions on how it should be executed, once declared. That is the correct verb in both these contexts. With the Articles of Confederation the emphasis was on how states as sovereign entities relate to each other. In the US Constitution, because (in an era when state sovereignty meant more than it does today, the Congress of the United States has no control over the division of power within any state as to how that war should be conducted. What Congress does is tell what the states what they may and may not do.
The federal Constitution is vitally concerned with how those powers are divided within the federal government. To it the federal government is not just some black box into which others pour content. It is the source of that kind of authority, and one can see the obvious safeguard in not letting the President go off on peccadilloes of his own.
Yet that said, John makes one powerful point when he talks about the “first mover” advantage. The necessity exception is evident insofar as it allows states to act first and talk later when they are subject to imminent peril from without. That right of actions in conditions of public necessity is not explicit in the federal Constitution, but it is read in as consistent with general international practice on the simple ground that the Constitution is not a suicide pact. That said, we do not need Congress to change our state of relations with other nations who have by their actions declared war on us. The absence of that specific provision does not render the declare war clause a nullity. It just shows how it should be understood as part of the complex tapestry that governs this matter.
There is, however, this lingering question: can we really use the eighteenth century time tables in the twenty-first century, where events necessarily move much faster than previously were the case? I have mixed emotions on this point, because not only do events move faster, but Congress can move faster if it is inclined to do so.
In the Libyan case, for example, the entire issue was left brooding for weeks, and yet Congress did not assert itself at all. The President in a bad burst of judgment thought that the source of his legitimacy was the United Nations, which is decidedly not part of the original American constitutional scheme.
But one could ask whether the changes in the external political environment should be allowed to work a subtle shift in American constitutional practice. My inclination on that question is no. But it will be harder and harder to insist that Congress has an essential place in the constitutional scheme unless it insists on it. It is not likely that courts will ever tiptoe into this arena, so that if the Congress does not stand up for itself, no one else would stand up for it. On this state of affairs, ironically, we also have the President to blame, for in his effort to delay a firm decision he never did what should have been done. Go to Congress for a candid review and evaluation of the overall situation.
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