On the Executive Branch; Relating to War Powers

...We have existed for nearly six decades in a position that history will most likely describe as a continual state of war. Since World War II, our military has sustained nearly 100,000 deaths and over a quarter million wounded. Since that time, multitudes of Americans have been forced into battle on numerous occasions, without a declaration of war from the representatives of the People, and with essentially no clear victories. Today's political climate is just as dangerous and chaotic as it has been throughout the last century. Our military still has a massive presence in Korea, Germany, and Japan; while we continue to fight a war in Iraq that started in 1991...

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Populist #22
On the Executive Branch; Relating to War Powers

In my last, I enumerated a list of both current and historical actions by the executive branch as evidence that it is the principle evil that we face today; including its support of slavery, torture of prisoners, confiscation of property, foreign espionage, and waging of extra-constitutional wars.  As these actions, along with many more like them, have not been confined to individuals or party affiliations alone, it is logical to conclude that it is not only just the people who have occupied this office, or their related political parties, that have been seriously flawed in character, but rather, it is the institution of the executive branch itself, that is seriously defective.  What remedy can there be for this situation, but in a change of the system which has produced it!

As a nation built on the rule of law, and not the rule of individuals, it is essential to determine where and when the law has failed us; especially when people in the heights of power repeatedly violate the principles of law and justice with impunity.  In pursuance of my plan to fully examine the executive branch as described in my last paper, I will endeavor in this, and forthcoming papers, to study the nature of the individual powers of the executive; with a close examination of the powers as originally enumerated in the Constitution, as well as differences, if any, in how those and other powers are wielded today.  It is my great hope, through this study, to find the possible merits and defects of both; thus leading to an understanding of how best to restructure this branch for the future preservation of our liberty.

We are long past the time in our nation's history, in which constitutional arguments have much hope of restraining the American political elite; we are long past the time where a mere parchment will determine their actions.  These arguments are still well worth making, though, since they serve to show us the true nature of American law.  Therefore, I must preface this, and any discussion regarding entrusted powers, with the Tenth Amendment to the Constitution:

"The powers not delegated to the United States, by the Constitution, nor prohibited to it by the States, are reserved to the States, respectively, or to the People."

It is here clearly stated that the United States Constitution rests on a strict enumeration of federal powers; if a power was not specifically given by the People, the federal government cannot do it.  This is essential in our study of the powers of the executive, as its power is clearly enumerated in Article II of the Constitution.

One of the consequences of our current political climate, in which war has been constant for fifteen years, is that we are driven to ask fundamental questions about the power of the President as commander-in-chief, as well as the oft-invoked war powers in the Constitution.  Thus, it is these great powers that will begin our examination of the executive.

Ever since the Korean War, Article II, Section 2 of the Constitution has been cited as justification for the President acting with an almost free reign in the realm of foreign affairs; including the initiation of hostilities with other nations.  It is, however, Article I, Section 8 of the Constitution which entrusted the power of declaring war to the federal government; and it is placed solely in the hands of Congress.  Article II, Section 2, on the other hand, refers to the President as the "commander-in-chief of the army and navy of the United States."  What our nation's founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.  Alexander Hamilton stated this specifically when he said that the President, while lacking the power to declare war, would have "the direction of war when authorized or begun."  The President, acting without a Congressional declaration of war, is authorized only to repel invasion and sudden attacks.  Pre-emptive strikes and undeclared offensive military expeditions are not mentioned in the Constitution, and are, therefore, unlawful.  Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense."

In Federalist #69, Alexander Hamilton explained that the President's authority "would be nominally the same with that of the King of Great Britain, but in substance much inferior to it.  It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature."

James Madison made it clear that the power of declaring war must be kept away from the executive branch, as he wrote to Thomas Jefferson, "the constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it.   It has accordingly with studied care vested the question of war in the legislature."

We have existed for nearly six decades in a position that history will most likely describe as a continual state of war.  Since World War II, our military has sustained nearly 100,000 deaths and over a quarter million wounded.  Since that time, multitudes of Americans have been forced into battle on numerous occasions, without a declaration of war from the representatives of the People, and with essentially no clear victories.  Today's political climate is just as dangerous and chaotic as it has been throughout the last century.  Our military still has a massive presence in Korea, Germany, and Japan; while we continue to fight a war in Iraq that started in 1991.

In matters of peace and war, Presidential rule appears to have completely replaced the rule of law in the United States.  The system that our government has used to engage, initiate, and enter wars in the recent decades is clearly related to Congress relinquishing its Constitutionally-mandated responsibility regarding war, as enumerated in Article I, Section 8.  It is also related to the obligation of the President to refuse any unlawful transfer of power from Congress.  Both the legislative and executive branches have either ignored their responsibility, or wholeheartedly welcomed unconstitutional transfers of the war power, without presenting to the People, a Constitutional Amendment to authorize such action, as required by the law.

President Truman gave us the Korean War without Congressional Declaration, and Presidents Kennedy, Johnson, and Nixon did the same in Vietnam.  President Bush brought us an undeclared war in Iraq in 1991, which President Clinton continued with sanctions and bombing raids throughout his two terms.  In 1999, he also engaged us in a war with Yugoslavia without a declaration from Congress.  In September 2001, Congress transferred to President Bush the power to fight whomever he determined aided the September 11th attacks, or harbored the culprits; its resolution did not even mention Afghanistan, although war has been waged by our military in that country ever since.  And, in October 2002, Congress let Mr. Bush alone decide whether or not to attack Iraq; this time he responded with a full-scale invasion.

Powerful people continually tell us that if Truman, Johnson, Clinton, et al, could initiate war without a Congressional declaration, then any current or future President could do likewise.  Justice dictates to all free people that previous violations of the law do not create an invalidity of the law.  Beware, as this is the argument of tyrants!

A Congressional declaration of war limits Presidential powers, narrows the focus of the action, and implies, or clearly stipulates a precise end-point to the conflict.  The last time Congress declared war was on December 11, 1941; against Germany, in response to its formal declaration of war against the United States.  This resolution was quickly accomplished with a statement that was well-under one page in length; yet it still clearly delineated who the enemy was, and what was to be done.  Three days previously, and one day after being attacked at Pearl Harbor, Congress declared war on Japan with a similar clarity.  Both actions resulted in a clear-cut victory.

As we were so ominously warned in the past, and has been discussed in depth in previous papers, an easy ability to launch war only increases the chance that evil people will yearn for power to aggrandize themselves through warfare.  The founders were wise to place the war powers in the hands of the legislature, although they obviously did not create a great enough physical barrier to prevent abuse.  In fact, they did little more than write the law, with the hope that our rulers would follow it.  They felt strongly that the Constitution itself would be a restraint on the actions of Presidents.  As Alexander Hamilton stated in Federalist #74, "If it should be observed, that a discretionary power, with a view to such contingencies might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law."  He also assumed, in Federalist #75, that the office of President would "always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom as on that of integrity."   I doubt that I would find too many dissenters to my opinion that both of these observations have proven to be nothing more than fantasy.

The last time that an American President did their duty to the Constitution and the People, by refusing an unconstitutional transfer of war powers from the Congress was...Never!

I will continue this discussion of the Presidential power as commander-in-chief, and the related war powers of the Constitution, in my next paper, on February 23, 2006.  Before leaving, I also urge you to consider the following words of Thomas Jefferson:

"Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government."


In the spirit of liberty and prosperity,


Franklin

The Populist Papers are an ongoing series of essays, published bi-weekly, in an effort discuss the current nature of the system of government in the United States; analyzing both its merits and defects.  The goal of the Populist Papers is to define, defend, and promote what may be considered revolutionary; the establishment of a Constitutional Democracy in America.  Written anonymously to ensure discussion of the principles alone, these essays attempt to both explain the complexities of government, and determine the proper place of a federal government based on the inherent rights of all people.

Tags: anti-war, constitution, democracy, executive, freedom, liberty, populism, populist, rights (all tags)

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