All power to the Constitution: What Tom meant to say about Amb. Power’s speech
By John H. Haas Best Defense guest respondent Tom recently confessed to being bothered by U.N. Ambassador Samantha Power’s speech on Syria of September 6, in which she said, “The American people elect leaders to exercise judgment, and there have been times in our history when presidents have taken hard decisions to use force that ...
By John H. Haas
Best Defense guest respondent
Tom recently confessed to being bothered by U.N. Ambassador Samantha Power’s speech on Syria of September 6, in which she said, “The American people elect leaders to exercise judgment, and there have been times in our history when presidents have taken hard decisions to use force that were not initially popular, because they believed our interests demanded it.”
Tom responded, “Power’s stance is profoundly undemocratic. The American system is founded on the belief that the people do indeed know what is best for them. So I conclude that Power’s argument is itself yet another reason not to intervene in Syria — if we have to erode our system to do it, it certainly is not worth it.”
Tom’s discomfort with what has been called “the imperial presidency” is understandable, and is widely shared by smart, thoughtful, careful people on both the left and the right. It has an intuitive appeal to anyone who’s instincts have been shaped by democratic principles. If our republic is just that, a res publica, or “public thing,” then shouldn’t the public have a say in what its “thing” does in the world? And what could be more morally momentous and practically consequential than a violent attack on another nation that will extinguish lives, and may suck the republic into a wider war?
In our current debate over an attack on Syria, Republicans in particular have been forthright that the Constitution gives the president no authority to do any such thing without congressional approval. California Republican Rep. Tom McClintock: “If a president on his authority and in direct contravention of the Constitution plunges our nation into war, if that’s not impeachable, what is? The Constitution does not require consultation. It does not require informing Congress. It requires Congress’ specific act to authorize a war.” Republican Rep. Walter Jones of North Carolina: “… any president who bypasses the Congress to bomb another country without provocation, and this is actually in the Constitution, then they should be impeached.”
For his part, President Obama agrees: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Well, agreed. That was in 2007. Now? “I believe I have the authority to carry out this military action without specific congressional authorization…”
To complicate matters further, Republican Rep. Peter King of New York agrees with the Obama of 2013, and thinks he’s actually wrong to seek congressional authorization: “President Obama is abdicating his responsibility as commander-in-chief and undermining the authority of future presidents. The President does not need Congress to authorize a strike on Syria.”
Well. We would seem to have something of a pickle here, as Uncle Billy might say. Who’s right? The Obama of 2007, or the Obama of 2013? Obama’s Republican critics, or Obama’s other Republican critics? Samantha Power,or Tom Ricks?
It seems to me that we have at least three avenues of investigation that we need to consider as we search for an answer. First, there is what the framers put in the Constitution itself. There are also the framers’ intentions, as revealed by what they wrote elsewhere, and by what they did when they held office. And then there’s the subsequent historical record — the body of precedent that constitutes America’s “unwritten constitution.”
Let’s start with those most basic of facts, the numbers. A few years ago, Yale historian Harry Stout added up all of America’s military operations and found 280 foreign interventions, along with 29 Indian wars. We’ll leave the latter aside, and we’ll also admit that many of those “operations” don’t look a lot like “wars” from a chronological distance (but then, neither would Obama’s proposed “limited attack” on Syria in a few years — unless you were on the receiving end).
Of these, five have been formally declared wars, and on another 13 occasions Congress has issued an expressed authorization of military force. John Yoo counted 125 occasions of presidents ordering military operations without congressional authorization.
What do those numbers tell us? It would be hard to argue that a formal declaration of war is required. From the earliest years of the republic, presidents have gone to war without a declaration. Founding fathers John Adams (the Quasi War) and Thomas Jefferson (the Barbary Wars) did, representing the two political parties then in existence (the Federalists and the Democratical-Republicans). Congress, with many of the signers of the Constitution on board, approved of these wars, and no move to impeach either of them was made. If a formal declaration of war is required by the Constitution, these gentlemen would have known about it. Most scholars agree that the Constitution does not specify what counts as a “declaration of war,” and that authorizations of force are legitimate equivalents.
We also might note that a formal declaration of war is no guarantee that later generations will agree that the war was wise, or just. Of our five declared wars — the War of 1812, the Mexican War, the Spanish War, World War I, and World War II — only the last escapes serious moral censure from mainstream critics. “I do not think there was ever a more wicked war than that waged by the United States on Mexico,” said Ulysses S. Grant — and he was a veteran of that war.
Similarly, regrets trail in the wake of many of our congressionally authorized wars. We might wonder, for example, about the necessity of Buchanan’s attack on Paraguay in 1859, or Wilson’s occupation of Veracuz in 1914, or his wading into the Russian civil war in 1918, or the wisdom of the Tonkin Gulf Resolution of 1964 that gave us Vietnam. Reagan’s disastrous, tragic, and pointless incursion into Lebanon in 1983 was authorized by Congress with healthy majorities. Most recently, George W. Bush received overwhelming congressional support for Operation Iraqi Freedom.
At the same time, several congressionally unauthorized attacks are relatively uncontroversial — the Korean War ordered by Truman, Reagan’s incursion into Grenada and his attack on Libya, the first Bush’s invasion of Panama, and Clinton’s 78-day war in Kosovo — at least when judged by the standard of popular approval. Indeed, one of them is among the most admired examples of presidential leadership in recent history: the Cuban missile crisis of 1962. Facing no actual or imminent attack, President Kennedy ordered a partial blockade (an act of war) against Cuba, initiating the most dangerous confrontation between major powers in world history. In the judgment of one historian, this confrontation over the Soviet missiles based in Cuba was essentially a contest for “prestige.” It is unclear whether, had Congress or the American people been consulted, they would have agreed that the mere presence of nuclear missiles 90 miles off our coast was worth risking nuclear holocaust — especially if it had been explained that the Soviets had been deploying submarines armed with nuclear missiles since 1955, arguably rendering the Cuban question tactically moot.
We need to beware of reading too much into these events. Neither the fact that a majority of our nation’s military operations were initiated and fought without either formal declaration or congressional authorization, or that many of those that were declared or authorized were mistakes, or that some that weren’t authorized seem to most Americans successes, neatly decides the question. The Constitution and what it says, as well as the founders’ intentions, remains critical. However, we do need to acknowledge that America — not just presidents — has behaved as if neither declaration nor authorization was necessary on numerous occasions. In no instance has there been a congressional or popular outcry that jeopardized any president with impeachment for his actions. We seem, as a nation, to have made our peace with this arrangement. Whether we should have is another question.
Does the Constitution mandate that we withdraw our approval of this arrangement and institute a requirement that presidents ask for and receive congressional authorization before going to war? Even the War Powers Resolution of 1973 — passed by the congress most hostile to the imperial presidency in our history — doesn’t say that. It only requires that presidents get congressional authorization or terminate the operation within 60 (or 90 — depending on conditions) days. (No president has ever admitted the resolution’s authority, and no president has ever been impeached for defying it–as, arguably, Clinton and Obama have done, in Kosovo and Libya respectively.) It is significant that even the 93rd Congress did not appeal to the Constitution’s enumerated power to declare war, but to the “necessary and proper” clause, as its justification for limiting the president’s power to wage war.
Moreover, Congress did not move to impeach President Nixon for continuing the Vietnam War even after it had repealed the Tonkin Gulf Resolution in 1971.
Reps. McClintock and Jones, then, are surely mistaken. And it appears the Obama of 2007 was also wrong. A president may indeed “unilaterally authorize a military attack.” If, in the aftermath, it were discovered that there was no threat to the nation — and especially if it was discovered that the president knew there was no threat — that might constitute very good grounds for impeachment. Yet — again, arguably — there was no clear “threat” to the United States, as threats are conventionally understood, that necessitated the wars in Korea, Vietnam, Panama, Kosovo, or Libya.
We swim in deep waters here. The War Powers Resolution explicitly denies that merely funding a war constitutes de facto authorization. Many would argue — against the case I’ve made — that failing to even try to impeach a president similarly should not be interpreted as anything like approval. There are many reasons we might not want to impeach a president, even if he is guilty of a minor misdemeanor like starting an unauthorized and unnecessary and unjustifiable war.
But what about Tom’s contention? The finer points of constitutional law aside for a moment, does a president launching a unilateral attack when the public’s disapproval of that attack is known violate the spirit underlying the Constitution, if not its letter? Is it the case that the “American system is founded on the belief that the people do indeed know what is best for them”? Would such an attack “erode our system,” and so should not be ordered?
Many readers will recall the slogan of the late 1960s, “Power to the people!” Some might recall the slogan evolving into a more comprehensive, “All power to the people!” While both the SDS, then, and the Tea Party, today, evidence an affection for this sentiment, it is not one that the founders shared.
At the end of the day, of course, the people are sovereign and have the power to alter the republic in profound ways. Presidents and congressmen (and since 1913, senators) have to submit themselves regularly to the will of the people as expressed in elections. In the meantime, the Constitution grants them much freedom of action. If they act in ways the people do not approve of, they can be tossed out. They can be impeached. The people can alter the Constitution in any way they see fit by amending it, thus restricting their powers. So, ultimately, our system is grounded in the will of the people.
But that is not to say that it’s grounded in the belief that “the people … know what is best for them.” The founders placed the selection of the president not directly into the hands of the people, but into those of the electoral college. They denied the people the power to directly elect senators, whose advice was required when a president makes treaties and appoints ambassadors. The founders also operated within a system that restricted the franchise much more tightly than today, allowing only adult white males who met property requirements (and who were, therefore, presumably educated and responsible) to vote. Theirs was a hierarchical society, in which men were presumed to know what was best for their wives and children, gentlemen were presumed to know what was best for the commoners, and rulers knew more about what was “best” than the ruled.
But those weren’t their only convictions. They were well aware, from history and experience, that even representative, regularly accountable, impeachable rulers could go astray when it came to the momentous issue of war. And so, in their sublime system of checks and balances, they included an escape hatch from war, and brought it as close to the people as they could.
The president, as commander in chief, has immense power. They gave him the power — “energy in the executive,” Alexander Hamilton called it — to act swiftly to meet national emergencies. This they believed was necessary, not because they were naive about executive power and its potential abuses, but because they lived in a dangerous world. So they maximized the president’s power to meet military threats.
But the Constitution also balanced that power. Among Congress’s powers as enumerated in article I, Section eight, is the requirement that “no Appropriation of Money” to raise and support armies “shall be for a longer Term than two Years.” Here is where the people get their veto. If the president — even if he has congressional authorization, even if he has a formal declaration of war — cannot convince the people that his military actions are justified, they can simply vote out their current representatives and vote in new ones that will defund his war. It is significant that they placed this power in the House, where the people are most closely represented, and where elections are most frequent.
The founders believed that even propertied and educated gentlemen might not understand enough about world affairs to be counted on to immediately make the correct decision. So they gave that power to the executive. But they also believed that if the case held water, it should be possible to persuade the people of it over time.
Would they have the same confidence if they could see our more broadly defined “people”? In his farewell address, President Eisenhower warned that only “an alert and knowledgeable citizenry” would be up to the task of guiding our leaders as they navigated the dangerous shoals of the post-World War II era. Do we have “an alert and knowledgeable citizenry”?
One of democracy’s sincerest admirers, Alexis de Tocqueville, confessed that, “As for me, I will have no difficulty in saying: it is in the leadership of the foreign interests of society that democratic governments seem to me decidedly inferior to others…. Foreign policy requires the use of almost none of the qualities that belong to democracy and, on the contrary, demands the development of nearly all those qualities that it lacks.”
Tocqueville, of course, has no legal standing in this debate. He wasn’t even American. And we have more evidence than anyone could want that our rulers — presidents, senators, foreign policy elites — often do not in fact know what is “best,” for the people or the nation. Even so, we should be careful. Our leaders and the elites that advise them are often mistaken, but that doesn’t mean the people will always be right.
John H. Haas, Ph.D., teaches U.S. foreign relations, American history, and the political geography of North Africa and the Middle East at Bethel College in Indiana, the Harvard of Mishawaka.