The Bush administration threatens war with Iran as if the decision is the president's to make. The president believes himself to be constrained by neither the Constitution nor the 1973 War Powers Resolution. Former Secretaries of State James A. Baker and Warren Christopher recently warned: "The rule of law is undermined and is damaged when the main statute in this vital policy area is regularly questioned or ignored." They proposed a new War Powers Consultation Act to require the president to confer with Congress, as well as mandate a congressional vote to approve or disapprove any deployment within thirty days. The president could veto any disapproval, and be overridden in turn.
Baker explained the procedure as a necessary response to the persistent conflict between the executive and legislative branches. "What we aim to do with this statute is to create a process that will encourage the two branches to cooperate and consult in a way that is both practical and true to the spirit of the Constitution."
Alas, if presidents won't obey the Constitution and past congressional enactments, why does Baker believe they will obey a new law? Two members of the study committee chaired by Baker and Christopher, former congressmen Mickey Edwards and David Skaggs, a Republican and Democrat, respectively, complained that the proposal was weighted toward the executive branch. True, but not nearly enough for advocates of executive predominance: recent presidents have consistently resisted the slightest congressional assertion of constitutional authority.
In the view of the Bush administration, for instance, there really is only one meaningful branch of government, the executive, to which the other branches are subordinate, irrespective of the Constitution's explicit language and the Founders' explicit intentions, whenever the president claims to be exercising his responsibilities as the military's commander in chief. President Bush' s claims have not fared well in the Supreme Court, which recently upheld the application of habeas corpus to those designated as enemy combatants. However, this ruling has not rejuvenated Congress' authority to declare war. Rather than encourage Congress to engage in another exercise of futility, approving another piece of ineffective legislation, Baker, Christopher, and the other panel members should press Congress to reclaim its constitutional authority. That means putting future presidents, including the one elected in November, on notice that only Congress can initiate conflict, and that Congress is willing to penalize any chief executive who attempts to take the Constitution into his own hands.
The Constitution is explicit. Article 1, Sec. 8 (11) states that "Congress shall have the power . . . to declare war." This doesn't mean authority to note the fact that the president has started a war. It means authority to start a war.
Those who framed the Constitution were reacting against the British system, in which the king could unilaterally take the entire empire into war. The delegates explicitly rejected a proposal to empower the president to initiate conflict. Elbridge Gerry responded that he "never expected to hear in a republic a motion to empower the executive to declare war." Alexander Hamilton, perhaps as close to a monarchist as anyone attending the constitutional convention, assuaged the concerns of delegates about presidential authority, explaining that it was "in substance much inferior to [that of the king]. 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."
To the contrary, the overriding sentiment at the convention was the importance of reducing the likelihood of war-of "clogging rather than facilitating war," in the words of George Mason. James Wilson said the new system "will not hurry us into war."
The basic strategy was simple: make the decision to go to war corporate rather than individual. Said George Mason, the president "is not safely to be entrusted with" the power to initiate war. James Wilson said the constitution was "calculated to guard against" promiscuous warmaking, since "It will not be in the power of a single man, or a single body of men, to involve us in such distress." Thomas Jefferson, influential though not actually present at the convention, spoke of establishing an "effectual check to the dog of war by transferring the power of letting him loose."
In the midst of the bitter Republican-Federalist debates during the Washington administration, James Madison criticized attempts to aggrandize the executive: "The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war: it was proposed that the Executive might, in the recess of the Legislature, declare the United States to be in a state of war." This step would, he explained, destroy the separation of powers through "the blending of these incompatible powers, by surrendering the legislative part of them into the hands of the Executive." The fact the Constitution gives Congress the final decision as to war and peace does not mean that there are no gray areas. But most cases remain unambiguous, clearly requiring congressional approval.
A number of arguments have been advanced for ignoring the Constitution. Perhaps the favorite is "every president does it," that is, start wars without congressional authorization. The fact that some chief executives may have gotten away with unconstitutional conduct doesn't justify future presidents attempting to do so. Some of the examples commonly cited were conducted with at least colorable legislative authority. Most were limited deployments for limited ends, not the initiation of full scale war-launching bombing campaigns, invading foreign lands and enforcing regime change. Another contention is that in today's world presidents must be able to respond instantly to a crisis. But the framers of the Constitution foresaw that need, voting to substitute "declare" for "make" to enable the president to "repel" an attack, in Roger Sherman's words. Their intent was not, as argued by some advocates of executive power, to limit Congress' job to stating the obvious after the president had begun a conflict. And in no recent conflict, from Korea to Iraq, has there been inadequate time for Congress to fulfill its constitutional role.
Finally, those promoting presidential supremacy point to the chief executive's role as commander in chief of the military. That gives him authority to conduct any war, but it is up to Congress to decide if there is a war to conduct, just as the legislature is empowered to raise an army and establish the rules of war. The president's power is subordinate to that of Congress, which creates the framework within which he is to exercise his authority as military commander in chief.
Unfortunately, neither party has consistently supported the Constitution. Republicans and Democrats seamlessly switch positions depending on which party controls the executive branch. That places greater responsibility on bipartisan commissions like the one chaired by Messrs. Baker and Christopher to push for a return to constitutional principles, rather than to offer yet another flawed compromise certain to be ignored when most needed. Not all presidents have ignored the nation's fundamental law. President Dwight Eisenhower, one of America's most celebrated generals, declared: "When it comes to the matter of war, there is only one place that I would go, and that is to the Congress of the United States." Later, he added, "I am not going to order any troops into anything that can be interpreted as war, until Congress directs it."
The Founders were prescient in granting the power to initiate war to Congress. Presidents have consistently manipulated the facts, including government intelligence and public opinion, in order to take the nation into war. Only a vigilant legislature, determined to guard its authority to start wars and exercise its oversight responsibility for the president's management of war, can protect both the constitutional system and the public. Congress doesn't need to pass a new law. Rather, it must insist that the president follow the Constitution. As America's Founders understood, the decision to go to war is too important to leave to one man, whether a Republican or Democrat. Only Congress is authorized to loose the dogs of war.
Doug Bandow is the Robert A. Taft Fellow at the American Conservative Defense Alliance and author of Foreign Follies: America's New Global Empire (Xulon Press). A former special assistant to President Ronald Reagan, he is a graduate of Stanford Law School.