Constitution: Yes, the president may bomb without congressional approval

As I wrote earlier this week, certain warmongers writing for First Things are concerned that not supporting Obama bombing Syria would set a “precedent of setting too low a threshold for blocking presidential initiative in foreign affairs,” and this “is unwise.” I interpreted this as a desire to keep the presidency strong in general, no matter what, so “that presidential prerogative to start wars without congressional approval will not be diminished.”

This reason to support Obama in Syria, as I said, is an issue of Constitutional interpretation. As I wrote, “Most people in my circles believe that only Congress has the power to declare war.” Rand Paul tried to exercise this argument against John Kerry during the Senate Committee hearings yesterday evening. He argued that it is “explicit” “throughout” Madison’s writings that the power of war belongs to Congress and not the Executive. He stated, “This power is a congressional power and it is not an executive power.”

While I support the spirit of peace and small government for which he is fighting, Paul is simply wrong. Whatever else Madison said, he and all the constitutional framers made exceptions to the general rule.

Yes, it’s true, as Paul related, that Madison wrote, “The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”

But this was written in 1798 when the rival party was flirting with a war of which Madison disapproved. Of course he wanted to tie hands then. What Paul didn’t relate was what Madison wrote next. He went on to decry the ability of the President to circumvent Congress constitutionally and start that war single-handedly anyway. Madison decried the effort, and the path he laid out would have been unwise on Adams’ part, but it was nevertheless open to him. Referencing Madison here is therefore self-defeating to Paul’s view.

Further, Madison’s earlier writings strike a different tone. Not the least of these was his own tweaking of the constitutional article in question during the Convention. The original motion was to grant Congress the power “to make war” rather than “to declare war” as it eventually stood. Why? According to Madison’s own notes, the discussion proceeded:

“Mr. Madison and Mr Gerry moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks. . . .

On the Motion to insert declare–in place of Make, it was agreed to.” [empasis mine]

The alleged “strict constructionist” Jefferson would later put those very powers to use. In his first Message to Congress in 1801, he explained his engagement of the Barbary pirates:

“I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. . . .

One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part.” [empasis mine]

Jefferson’s narration goes on to show a delineation in his mind between what the president could do militarily with and without Congress:

“Unauthorized by the constitution, without the sanction of Congress, to go out beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew.” [empasis mine]

But where in the document was this delineation expressly drawn? What are its boundaries? Unfortunately, none are stated expressly. It was assumed at the time to be between defense and aggression, but even this admits to various interpretations in various circumstances.

For this reason, upon hearing Jefferson’s Message, Alexander Hamilton was distressed . . . by the restraint! He argued the President had the power to go ahead and also seize enemy property without sanction of Congress. He published a column called “The Examination,” in which he castigated Jefferson for “a performance which ought to alarm all who are anxious for the safety of our Government, for the respectability and welfare of our nation.” He reasoned:

“As it respects this conclusion [of the emergency of being attacked], the distinction between offensive and defensive war, makes no difference. . . .

That instrument [the Constitution] has only provided affirmatively, that, “The Congress shall have power to declare War;” the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war. . . . But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary.”

Now, none of these men were addressing a situation similar to the one in Syria. The United States in no way has been attacked, and therefore there is no true “defense” on our part. Nor do we even have allies attacked, which is already beyond the specific issues addressed by Madison, Hamilton, etc. But just this far is enough to show the one basic principle: the power to make war—and you don’t even have to call it a “police action” or “limited military action,” you can just call it “war”—is not exclusively and solely vested in Congress. It is, in fact, sometimes, an Executive power, apart from Congress, and that is constitutional.

We have to deal with this, and the progression of it. Let’s start with understanding it on the constitutional level.

What the Constitution really says

The “congress only” argument can only possibly be sustained through a strict constructionist view of the Constitution. But as I wrote yesterday,

“For whatever merits that view may have, it has been by far the minority view in practice in American history, was not practiced even by the framers who wrote the document, and indeed was thoroughly blown out of the waters of American jurisprudence by John Marshall in McCulloch v. Maryland, if not earlier. Hamilton was the most influential man in the first administration—the brains and energy behind Washington—and he never believed in strict construction for a moment.”

No one paid any more than lip service to strict construction. First, the framers of the Constitution purposefully removed certain constraints from it, explicitly because they intended to allow any questionable issue to be defined and determined by the general government itself, not the states.

People deny this today. They do not want to accept that the Constitution was a vast centralization of powers. For example, one lawyer argued with me that the Tenth Amendment drew its language from the Articles of Confederation, and was intended therefore to constrain the federal government in behalf of the states to the same extent as the previous document, except where expressly enumerated. This is just simply wrong. The Tenth Amendment was a purposefully denuded version of the earlier arrangement, meant to buy off the States with similar but deceptive promises. Compare Article II of the Articles:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

. . . with the Tenth Amendment:

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

Obviously the former statement is stronger in general, but do you notice the missing word in the Tenth that is vital in regard to construction? I have written about this before: it is the very word expressly. Contrast “expressly delegated” with “delegated,” and ponder the potential differences in the hands of activist lawyers.

And what was John Marshall after all? When the question later arose whether a national bank could establish a branch within a state and defy the state’s attempts to tax its profits, Marshall ruled that such an act would submit the federal bank beneath mere state jurisdiction—and the federal must remain supreme unless expressly denied in a certain area. And who gave this bank—not mentioned anywhere in the enumerated powers of the constitution, by the way—the right to such immunity? Marshall stuck it in their face in McCulloch:

“Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;’ thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument.” [empasis mine]

So even a strict construction of the Tenth Amendment at best leaves plenty of room for federal creativity, definition, etc., by virtue of its crafty wording. But in the truer reality of American history, as the establishment of the bank and Marshall’s defense of it show, that creativity is almost limitless.

Second, now apply that principle and practice of interpretation to the war power of Congress in Article 1 Section 8: “The Congress shall have Power . . . To declare War. . . .” Paul, for example, was arguing adamantly about what this doesn’t say. But this is self-defeating again. Granted, it doesn’t say that the Executive has this power, but hey, it doesn’t say that it doesn’t have this power either. All it affirms is a certain power to Congress—it affirms nothing more and denies nothing else.

There is no negative power in regard to war for the executive anywhere in the Constitution. There is no express mention of it period, and this at least leaves it an open question in many ways. And that leads us to the last point here:

Third, with this principle and practice in mind, let’s consider the President’s job description in Article 2 Section 3: “he shall take Care that the Laws be faithfully executed.”

Talk about a sea of undefined powers! What is “Care”? What does “take Care” mean (“Don’t worry, Vito. I’ll ‘take care’ of that guy for you.”)? What “Laws” exactly? What is considered “faithful”? Who decides? Congress, the Supreme Court, popular vote, or the President himself?

And this is exactly noted by the early opponents of the constitution. William Symmes criticized early in the ratification debates in 1787:

“Can we exactly say how far a faithful execution of the laws may extend? or what may be called or comprehended in a faithful execution? If the President be guilty of a misdemeanor, will he not take care to have this excuse? And should it turn against him, may he not plead a mistake! or is he bound to understand the laws, or their operation? Should a Federal law happen to be as generally expressed as the President’s authority; must he not interpret the Act! For in many cases he must execute the laws independent of any judicial decision. And should the legislature direct the mode of executing the laws, or any particular law, is he obliged to comply, if he does not think it will amount to a faithful execution? . . . . Is there no instance in which he may reject the sense of the legislature, and establish his own, and so far, would he not be to all intents and purposes absolute?”

So you see the president has considerable leeway in just how he interprets and executes the Laws. This is why we see Obama so often using apparently shady means to circumvent Congress when it’s hostile to his agenda. Everyone shouts “Constitution! Constitution!” But it’s the Constitution that gives him this very type of leeway.

Now, consider this power in light of the question of “what ‘Laws’?” In this day and age the Executive is entrusted with the faithful execution of tens of thousands of pages of U.S. Code and Administrative Law. This includes Treaties, nearly all foreign policy, and international law to which the U.S. is a party. This means that very likely “defense” is no longer the sole criterion for Presidential prerogative in the use of force, or, at least, that the definition of the Word has expanded. It doesn’t matter which, really.

Everyone knows this. The President since at least 1945 has had a wide range of circumstances in which he can deploy and use military force without congressional approval, and it’s perfectly constitutional.

Breaking the law

But let’s suppose that whatever “Laws” might sanction Presidential lonewolfing in something like this Syria situation do not apply here. Let’s say that whatever he wants to do, it sits right there outside of his powers, and he knows it. Do we have him trapped then?

Even then, Mr. Strict Constructionist himself, Jefferson, gives the president a pass in regard to existing law, whether strict construction, original intent, or not:

“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”

But what if the President wages a war and Congress uses its last resort: it refuses to fund that war. In a hypothetical consideration, Jefferson still gives prerogative to the president:

“Suppose it had been made known to the Executive of the Union in the autumn of 1805, that we might have the Floridas for a reasonable sum, that that sum had not indeed been so appropriated by law. . . . But suppose it foreseen that a John Randolph would find means to protract the proceeding on it by Congress, until the ensuing spring, by which time new circumstances would change the mind of the other party. Ought the Executive, in that case, and with that foreknowledge, to have secured the good to his country, and to have trusted to their justice for the transgression of the law? I think he ought, and that the act would have been approved.

After the affair of the Chesapeake, we thought war a very possible result. Our magazines were illy provided with some necessary articles, nor had any appropriations been made for their purchase. We ventured, however, to provide them, and to place our country in safety; and stating the case to Congress, they sanctioned the act.”

So much for “bind them down with the chains of the constitution”! Jefferson says the president sometimes should shoot first and ask forgiveness later.

But just so you don’t think I alone am crazy, I was pleased to learn just this morning that the libertarian Judge Andrew Napolitano states the case, too. Speaking of Obama, he argues that the War Powers Resolution gives the President the power to act in Syria for a limited time without congressional authorization: “He knows that he already has the ability to engage in that without asking Congress.” Even “if the Congress says no and the president does it anyway, that will be consistent with federal law.”

So, my strict constructionist friends, I hate to bear the news, but you are trapped not only by history, but also even by some of your heroes.

War Powers Resolution

The War Powers Resolution (WPR) is interesting in this regard as well. It was passed in the wake of leaving Vietnam under the pretense of never letting “another Vietnam” happen. It was really about Congress creating a façade of deniability for itself in getting us into that war or any other like it.

But here’s the rub: the passing of the WPR proves my case concerning the President’s inherent Constitutional powers to make war. If he had not had a large blank check in regard to non-congressionally authorized military operations to begin with, no such Resolution would have been necessary. Stated more succinctly, if the Constitution had not originally given the president such power, it would not have required an express Resolution to take it away from him (to some degree anyway).

And sure enough, it is the modern day Hamiltons—for example, The Federalist Society—who complain most loudly of the constraints put in place by the WPR. They want it repealed. (And truly, when I say “modern day Hamiltons,” they take it as a high compliment.)

These guys want a return to the good old days when the Presidential power was left indefinite. They argue this was the design of the framers:

Columbia Law Professor Louis Henkin noted in Foreign Affairs and the Constitution that the “executive power . . . was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone.” Each of these writers argued that the control of external intercourse was “executive” in its nature, and because of the relevant competencies of the institutions of government this power could not effectively be vested elsewhere.

For military members

As I wrote earlier this week,

There is currently a series of Facebook memes circulating of soldiers covering their faces with message cards saying things like, “I did not sign up to fight in for Al Qaeda in Syrian Civil Wars,” etc. Again, I am outside the current in my own conservative circles in arguing the contrary here. While I appreciate the sentiment, the fact is otherwise.

The sad answer to these well-intentioned soldiers is, “Oh yes you did sign up for it.” What part of “I will obey the orders of the President of the United States” did you not comprehend when you took the oath? You may not have realized it at the time, and you may disagree with it, but existing law will require it of you.

Against this they cite the oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” And the constitution does not support such a war.

Oh yeah? Says who? Says you?

Do you think that will stand up in a court martial?

So whose interpretation of the Constitution did you swear to support and defend? This is what any opposition you have to aiding Al Qaeda in Syria, or fighting Obama’s unjust wars, or however you want to object to it, will boil down to: your conscience versus court martial. Period.

You probably didn’t think through such a scenario this far when you signed up for it, but this will be the harsh reality. On the other hand, if anyone actually gets punished for their actions after having wised up after the fact and resisted anyway, it would be respectable.

(I will leave myself wide latitude to be corrected here. I am no expert on courts martial or military law, so if there are exceptions for conscientious objection while in service, to certain commands, or anything like it, I am open to hear it.)

Where does it end?

Judge Napolitano noted that if Congress votes no and the President goes anyway, it will be consistent with Federal law. He did note that against Syria in particular it may not be in compliance with international law. But, he noted (like Jefferson just did above), the President may choose to act outside the law, because, after all, “There will be little international recourse.”

And this leaves us with a sour thought, in Nap’s words: “Where does this end.”

To quote the Redleg chasing Josey Wales: “Doin’ right ain’t got no end.”

Because as long as you have some self-righteous lawmaker with Redlegs at his disposal, there will be military and police operations whether Congress agrees or not.

For, you see, the problem here is not with Obama, or the party in power; it is with the Constitution. From day one it has empowered tyrants. And tyranny slowly expands until something stops it. The question is, what is that something. The problem there is deeper: people don’t so much want to stop the Redlegs, they just want to control them on their side. We want to power to have our way, and the immunity to destroy to get it.

We want to achieve our goals through government force, and the more we fail, the more we expand government force to cover for the failure.

“What causes quarrels and what causes fights among you? Is it not this, that your passions are at war within you? You desire and do not have, so you murder. You covet and cannot obtain, so you fight and quarrel. You do not have, because you do not ask. You ask and do not receive, because you ask wrongly, to spend it on your passions.”
-James 4:1–3