Thursday, April 13, 2017

Warped powers

America's founding fathers were not isolationists. They recognized that there were connections between the nations of the world and American interests, but history is clear that they considered it vital to connect American interests to any action against the interests of other nations.

Our very first president sent military aid to belligerents in a foreign land. He was not an isolationist. This point needs to be stressed because there are quite a few toward the right end of the American political spectrum that have a sanitized view of the founders philosophy regarding our place on the globe. It is equally important to stress the point that Washington did not unilaterally send US troops to follow that military aid to Haiti.

Much debate has ensued in recent days regarding President Trump's unilateral cruise missile barrage on an air base in Syria. Some say the President is within his constitutional limits to strike out on his own in cases like this, some say he is not. How can the Constitution support both sides of this argument?

In some cases the Constitution is unfortunately vague, or leaves a gap for others to fill in. The Constitution touches on war making powers in descriptions of the powers of the legislative and executive branches. The powers of congress are covered in Article 1 Section 8, and the most quoted salient point grants Congress the power:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
The President's authority is described in Article 2 Section 2:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
And that's pretty much all we have from the Constitution on the authority of warring. The gap in the descriptions is that the text contains no restraint on the President in his role as commander in chief. As a result, one side in the debate claims that no restraint was intended and that the President can command his forces beyond our borders as he chooses. The other side claims congress' war declaration power is intended to restrain the President. Which side of this argument a person, or politician, is likely to take generally depends on which party controls which branch of government at any given time.

What really shouldn't be in question is which side of this debate America's founders would be on if they were part of our contemporary discussion. It is clear from their historically recorded fundamental distrust of centralized executive authority, and from comments we have from the founders themselves that the elected representatives of the people were to decide when American blood and treasure would be placed at risk in foreign war. The following quote from James Madison is long, but it covers a variety of points on this subject:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
While the argument that the President's strike on Syria doesn't fit some specific definition of "war" is made in many statements in the ongoing debate, it is clearly not an act of peace. War and peace are ends of a spectrum that Madison identifies here as falling under the control of congress. Here the President is offered the authority to declare neither war nor peace - or anything in between. The contempt that Madison held for executive power is crystal clear in these comments he made to Hamilton. The idea that he would support giving carte blanche power to strike at foreign lands to the person described in this quote is preposterous on its face.

In the young United States there was very little in the way of a standing army. In the early days federal troops were raised with specific things in mind, like protecting the frontier from Indian raids. An oddly consistent talking point for supporters of executive war powers includes using the Barbary wars as examples of unilateral executive war making in the time of America's founders. Problems with the Barbary states were nothing new to our young nation. This conflict began as soon as the British dropped their umbrella of protection from American ships at the beginning of the revolutionary war. The idea that Congress was not part of the war making process on the Barbary states after the drafting of the Constitution is a hollow talking point with no historical validity.

In Jefferson's first inaugural address he made it clear that he considered his authority to end at defensive action, unless authorized by Congress to go on the offensive. Though they did not issue a formal declaration of war, Congress provided approval for the first Barbary war at President Jefferson's request. They commissioned the building of our first naval vessels for this purpose. Congress did declare war in the second Barbary war. Nothing in these examples implies that there was an expectation that US Presidents had the authority to unilaterally strike foreign nations - even those that had declared war on us. To use this as an example of executive authority to strike without congressional consultation at foreign nations that are in no way threatening US interests is the height of intellectual dishonesty.

The issue of unilateral belligerent presidential escapades in foreign lands came to a head at the end of the Viet Nam conflict. Congress passed the War Powers Resolution (commonly referred to as "Act") in 1973. President Nixon vetoed the resolution and it became law when Congress voted to override Nixon's veto. The Resolution reconciles the ambiguities in the constitutional text with the spirit of the founder's intent. This is a legitimate role of our legislature.

The strength of the War Powers Resolution has never been tested in court. Unfortunately it has been used as a tool of the opposition to attack President's from both parties for political purposes. President's of both parties consistently ignore the law, while Congressional majorities from both parties refuse to make an effort to enforce it, or bring it to court for a ruling.

The question of whether it was right or wrong to strike at Syria is a subjective question and opinions will vary. The question of whether the President had the authority to strike at Syria should not be a subjective question. This should be a matter of law plainly resolved for the guidance of Presidents and Representatives irrespective of political party. The question of which causes the men and women of our armed forces should be asked to risk their lives for is not a question that one man should answer for an entire nation. In a republic, these are decisions that should be made by a republican process - as the founders intended.