War power — 

Practice and abuse

Unilateral presidential war making, remarkable for its direct violation of the War Clause of the Constitution, is a sharp reminder of the widening gulf between constitutional principle and governmental practice. It recalls the observation of a 17th Century English judge: “The practice of government is but feeble proof of its legality.”

Since 1950, every president, with the exception of Dwight Eisenhower has asserted authority to initiate war and lesser military hostilities on behalf of the American people, despite the fact that the Constitution vests the war power in Congress. Presidential claims to such sweeping authority, from Korea, Vietnam and Cambodia, to Grenada, Iraq and Libya, shatter upon analysis, and represent a teaching moment.

Harry Truman was the first president to claim a unilateral executive war power. In 1950, his administration asserted various legal arguments that purported to justify his decision to take the nation into the Korean War, without congressional authorization. Those assertions, invoked by his successors, find no foundation in the text of the Constitution, the debates in the Constitutional Convention, or in our constitutional architecture.

Truman advanced the Commander in Chief Clause as authority for presidential war making, but this argument defies the founders’ own contributions to the development of the post. As we observed last week, the framers of the Constitution decided to vest the war power in Congress since they did not want a single person to take the nation to war.  

The president’s authority as commander in chief was conceived to be subordinate to the authority of Congress to determine matters of war and peace. The president would conduct war after Congress had decided to initiate military hostilities. If a nation invaded the United States the president, as Alexander Hamilton and James Madison stated in the convention, was expected to “repel the invasion,” leaving to Congress the authority to make subsequent policy decisions.

Truman’s assertion of authority of commander in chief finds no footing in our constitutional architecture. Nor, for that matter, does it find support in any Supreme Court decision. In fact, the court, in cases in 1800, 1801, 1803, 1804 and 1806, held that it is for Congress along to decide to deploy troops abroad.

Truman also claimed “executive power” as a source of presidential war-making authority, but this assertion fared no better. In the early days of the convention, the framers addressed the question of whether the president should inherit the executive power of Congress under the Articles of Confederation, but they quickly dismissed the idea that executive power would include war-making authority. In fact, the framers, drawing on the Law of Nations, concluded that the war was “legislative,” not “executive” in character, and therefore belonged to the legislative branch. The essential reason for this understanding was that the authorization of war changes the legal footing of the nation, moving it, as Hamilton observed, from a “state of a peace to a state of war.” Changes in the legal status of the nation require action by the law making branch of government — Congress. The president, it is familiar, does not possess authority to make laws or otherwise change legal conditions.

The Truman Administration, like its successors, also asserted a series of policy arguments. Among others, it claimed that the president should not be “handcuffed” by Congress in his defense of the United States, that he needed to be able to act quickly in the realm of national security, and that the president — not Congress — possesses more information, expertise and experience in foreign affairs.

Policy arguments, no matter how persuasive they may be, cannot replace constitutional principles and provisions. If they could, they would deprive the Constitution of its status as the supreme law of the land. But the impoverished policy arguments have won adherents and ought to be briefly examined.

The argument that the president should possess authority to act “immediately” in a dangerous world is a double-edged sword. Proponents of this argument often forget that a president may act too hastily and unwisely, to the great detriment of the nation. This argument really turns on the judgment, character, expertise, experience and temperament of the president. Note that these are attributes of an individual, not the Office of the Presidency, and any attempt to attribute them to the office would ignore the fact that while some — George HW Bush — have come to the presidency with considerable foreign affairs experience, others — Ronald Reagan, Bill Clinton, George W. Bush, Barack Obama and Donald Trump — have ascended to the presidency without any national security credentials. 

And, let us not forget that the framers of the Constitution did not view human beings as infallible. To place in the hands of a single person the awesome power to initiate nuclear war is to hand to that person the power to incinerate the planet. This reckoning confirms the wisdom of the framers in granting to Congress the authority to take the nation to war, on the belief that the crossfire of discussion and debate will lead to superior policies and decision making than that produced by a single person. 

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to this newspaper and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.