XBradTC

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XBradTC

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Libya, The President, The Congress, and War

We’ve been conducting military operations against the regime in Libya for over a week now, and still the President has not sought the approval of Congress for this action. Some folks say this is an impeachable offense. Others say it is well within the President’s powers as Commander In Chief. The Constitution clearly grants solely…

We’ve been conducting military operations against the regime in Libya for over a week now, and still the President has not sought the approval of Congress for this action. Some folks say this is an impeachable offense. Others say it is well within the President’s powers as Commander In Chief.

The Constitution clearly grants solely to Congress the power to declare war, and further grants to Congress the power to regulate the military. But the Constitution also clearly names the President as the Commander in Chief of the armed forces* As usual, the framers of the Constitution attempted to impose a balance of power between the branches of government, recognizing the need for a strong executive, but also hedging against too much concentration of power in the hands of one man.

The United States has been involved in wars, expeditions, quasi-wars and innumerable other military actions throughout its history, but has only actually declared war a handful of times. But in many cases, even when a formal declaration that a state of war exists between the United States and another sovereign nation, the Congress has passed what we now refer to as an Authorization for the Use of Military Force. The most recent example of an AUMF is Iraq. Clearly, in those cases, the actions of the President were in line with the will of Congress. But what about military operations initiated by the President without congressional approval? My reading of the Constitution has always been that the founders clearly wanted to Congress to be responsive to popular will to act as a brake on military adventurism. But the founders also clearly wanted the President to be able to respond promptly to any attacks, and further, that once war was declared, to have the power to efficiently pursue it.

During the Cold War, it was seen as not only possible, but likely that the President would be faced with committing the United States to the deadliest war in history, with only minutes to act. The incredible speed and power of nuclear ballistic missiles meant any attempt to gain approval from Congress while under attack was impossible. And what of 9/11? As the nation was under attack by hijacked airliners, there clearly was no time to seek approval. These are obvious examples where I don’t think any of my readers would claim the President would need to seek approval to act. When the US itself is clearly under attack, I think we all want the President to be able to respond appropriately.

What about US forces in Germany during the Cold War? What if the Soviets starting crossing the border in the massive onslaught that the Army spent 50 years preparing for? Would the President need to go to Congress for approval when Germany is being invaded? Yes, I know that Article 5 of the NATO treaty states that an attack on one member is an attack on all, but who in our government is it that makes the determination that any attack is indeed an Article 5 violation?  NATO’s governing body? If so, the US representative to that body is from the executive branch. Can the Congress delegate its power to declare war to a member of the executive branch, or a foreign body? As a practical matter, the inherent right to self defense that every military command holds would dictate that they would begin operations. But does that mean the President can deploy forces in such a manner that invites attack in order to avoid seeking Congressional approval?

When the North Koreans seized the USS Pueblo in international waters, that was clearly a causus belli as understood in international law. But did that give the President sufficient cause to initiate operations against North Korea? Or would he have needed a declaration (of whatever sort) from Congress?

Or how about fighting secessionist states? Lincoln starting fighting the Civil War, and only later sought the blessings of Congress. If Texas suddenly seceded again, would the President be within his rights to invade, or would Congress properly have the power to determine the national response?

This is and always has been a grey area of the Constitution. There are reasonable arguments to be made on both sides, and from my cursory reading of history, the answer seems to be that the President can do whatever he can get away with. There are three primary checks against this broad interpretation of Presidential power. First, popular support. Few Presidents willingly go against overwhelming popular opposition to a policy (wars may become overwhelmingly unpopular, but they rarely start that way).  Second, Congress still has to the power of the purse, and can act to defund any operations it truly objects to. And finally, impeachment. If the Congress is sufficiently convinced that the President has overstepped his authority, the Congress can impeach him and remove him from office. This is, of course, the court of last resort.

So what do you think? Where are the limits of Presidential power when initiating war?

 

 

*Extra Credit- The President has constitutional power as Commander in Chief over the Army and Navy. What about the Air Force? I presume he has statutory power, but the Constitution is silent on that matter. Is there a body of constitutional law that covers the Air Force?

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  1. Quartermaster

    I think the constitutional principle of war and CINC would still apply to the Air Farce, frankly.

    Unless the war is started under the cover of an existing treaty, NATO, for example, then the president must get a declaration of war from Congress to initiate offensive operations. He can act is a truly defensive capacity, but not offensive.

    In the case of NATO the council does determine what falls under article 5. The determination to go to war under NATO has already been delegated by the Senate when they ratified the NATO treaty. It is a lawful treaty, so if the NATO council said they thought Ivan’s visit for Oktoberfest fell under that, then to war we would have gone.

    The Pueblo incident is much cleaner than a lot of people think it is. It also showed how foolish the Navy could be at times. Pueblo was given orders placing it out of reach of any support of other ships. Buecher was also “surfaced” because Diesel boat commands were becoming increasingly scarce and he was up for command. There were some who thought that he simply couldn’t react properly to the situation he faced because of his background (fair or no, there were some who thought it). Pueblo was not properly armed for the situation she was in, and combined with the lack of support from other ships, this was a decisive.

    Frankly, right after the crew had been freed, I would have sent an alpha strike on the port holding Pueblo and when “Dear Leader” started shelling Seoul, I would have nuked Pyongyang, and told Mao to keep it north of the Yalu, unless he wanted some (or a lot) of the same medicine. At the time, SAC was still the most feared military organization in the world and we could have made it stick.

    Not only could we have done it, it would have been legal as the acts would have been defensive. Had we ordered the 8th Army over the DMZ with the intention of taking N. Korea, it would have been different. For that a declaration of war would have been required. The President could have made the request of Congress, and it would have been a reasonable request. I doubt Congress would have given it because you had idiots like Kennedy, Mansfield and McGovern there, but the request would have been reasonable.

    To boil it down. Defensive ops are OK. Anything offensive requires Congress say so. Under treaty, such as NATO or SEATO, then the approval was given when the treaty was ratified.

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  2. Craig Swain

    Too much to say, not enough comment space to do that….
    Bottom line here is that the US President has the ability, as CinC of the armed forces, to respond against direct and active threats to the country’s security. I could parse things around a bit, but that’s it from the street view. However, the President MUST go to congress for approval before using the armed forces in a role other than immediate and direct defense.

    So you want to talk about 9/11? The President at the time activated the military in defense. Then he sought and gained AUMF and a UN resolution. Ditto on Iraq (and please someone tell me that President Bush didn’t go about that the right way… please!).

    Defense of Germany? The AUMF was implicit in the treaty by which the US joined NATO, as approved by congress. The same applied to SEATO and CENTO when those organizations existed. However many felt those two organizations were more “obligations” which would be reviewed when required.

    And this teaser…. “Or how about fighting secessionist states?” Ug… now you’d have to draw the distinction between “in rebellion” and “seceded.” For the former, we have laws on the books and the President has powers before going to Congress (but in case that glass is broken, a President better be on the phone to Congress). For the later, well there are some legalities before a “rebellion” is properly a “secession.”

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  3. Rod Thorsen

    As for the Air Force, it started out as the Army Air Corps. Even though it later got spun off, it seems reasonable that such things as CinC responsibilities would be grandfathered in.

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  4. Grumpy

    First, the United States Air Force is part of all US Military Forces as established by the “National Security Act of 1947”.

    The are so many ways to look at this, The US Constitution strives to maintain balance between all 3 branches. I used the term “strives” for this reason, even though the Constitution requires the Congress and the Executive Branch to have different aspects in the warmaking process. When the Constitution uses the term “shall”, it means that body can not delegate that authority to another branch. The US Constitution, Article 1, Section 8 states one of the powers of the Congress and only the Congress can declare war, also Congress controls the purse strings.

    There are two subjects which need to be discussed, 1. Deployed Troops / OCONUS, 2. AUMF.

    We start out with the troops deployed OCONUS, aren’t they lawful? Since the Congress has the power to make treaties and within these treaties there are allowances for such deployments of troops, therefore, they are Constitutional. But treaties have the purpose of making peace, not war.

    AUMF, My personal belief is this is only used as a stop-gap measure until there is a formal “Congressional Declaration of War”. This would only be used to protect the Continental United States, with Alaska and Hawaii.

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  5. Grumpy

    This is one of those questions that will give people in this country heartburn for many years, to come.

    My apologies, I should also note that the President of the United States has the rank of “Commander in Chief”, from the US Constitution, Article 2, Section 2.

    Brad, you have raised some of the questions, but nowhere near all of them. As POTUS is a member of the Executive Branch of the US Government, we need to define the words “Executive”. If we look at the Constitution, we see an amazing pattern develop. Article 1, covers the Congress, they write the laws. Article 3 covers the “Judicial Branch”, they interpret the Law, in light of the Constitution. But what is the role of the Executive Branch in relation to the law? Actually, the answer is in the name, they execute the law. But first to be a good leader, you must be a good example. They must be the ones, first to apply the law. Question, is impeachment the only way to correct the behaviors of those in the Executive Branch? What do you think should happen if we found this to be the appropriate answer? Do you think impeachment is the worst thing we can do to this man, who ever he is? I am not suggesting that leader be treated any worse than the rest of us. Don’t forget, embarrassment is one of the tools to keep us in line. We still need to answer the serious question for us serious offense how should this Nation react to a very serious offense? How would we react to a serious offense, such as treason against the United States?

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  6. MikeD

    I notice a lot of folks agreeing that the POTUS doesn’t need to get authorization from Congress to begin defensive operations, but does need that authorization for foriegn ops. My question is, which article of the Constitution says that? But you know the answer as well as I, it doesn’t. At all. Yes common sense dictates that the President must be allowed to authorize military force without approval when seconds matter, but legally… Constitutionally… there is no such distinction anywhere in the document itself.

    And part of that reason is that we live in a vastly different world. The President is not listed as CinC of the AF, specifically because the founders could not have imagined such a thing existing. Just as he’s not actually CinC of the United States Star Force (or Space Navy, or whatever else they’ll call it some day). And following the creation of the AF as a seperate branch, no one really thought we needed an Amendment to the Constitution to specify that the POTUS is also CinC of that. But Brad’s 100% correct, technically he is not CinC of the Air Force because the Constitution does not give him that power.

    So to with the ability to declare war vs order troops into action. In 1783, war was something you had to spin up for. Britian couldn’t just drop troops on US soil without any warning. The sea voyage took months and before that, mobilizing the troops took weeks or months. A “sneak attack” where you’d find yourself on the defensive was not just impossible, it was literally beyond conception. So the idea that the President wouldn’t have time to consult Congress at all was just something they never could imagine. Thus, the Constitution is silent on it, and until there’s an actual Amendment to spell it out, it will remain so.

    So I think you’d be hard pressed to impeach the President on something that there’s literally no word on the legality of, as he actually has to commit a high crime or misdemeanor to be eligible for impeachment.

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  7. xbradtc

    But Brad’s 100% correct, technically he is not CinC of the Air Force because the Constitution does not give him that power

    Oh, I fully believe that the President IS in fact the CinC of the Air Force, but under statutory, rather than Constitutional power. But I’m also almost certain that at some point in the past 60 years, the federal courts have ruled on whether he is in fact the CinC of the AF, and that judicial precedence would have almost the same impramatur as a straight constitutional cite.

    As to “high crimes and misdemeanors” that’s a very nebulous term, and as a practical matter, is whatever the Congress decides. If the House impeaches the President for spitting on the sidewalk, and the Senate convicts, well, there you go. There is NO recourse.

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