War Powers

Here's what the Constitution says:

The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

[Article I, Section 8.]

And:

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.

[Article II, Section 2]

It looks to me as if Congress is the sole authority on whether or not the nation is to go to war, whereas the president is the supreme authority over how a war is to be fought. But there's something left out of the above: who decides when a war has ended?

Historically, the end of a war was a matter of formal declaration by Congress, either by the ratification of a treaty or by a Congressional resolution, as was the case after the Senate declined to ratify the Treaty of Versailles, that the war is over. This is an important point for Constitutional purposes, for the president's authority as commander-in-chief is delimited by the existence of a war: when the war has ended, so has the president's authority to send the armed forces of the United States into harm's way. That's the import of that oft-neglected phrase when called into the actual service of the United States.

However, just as Congress's power to determine when the nation is and is not at war has been greatly undermined, so has its power to determine when a war has ended. For the former, hearken to Garet Garrett:

The Constitution says: "The Congress shall have power to declare war."

That, therefore, was the one thing no President could do. By his own will he could not declare war. Only Congress could declare war, and Congress could be trusted never to do it but by will of the people. And that was the innermost safeguard of the republic. The decision whether or not to go to war was in the hands of the people—or so they believed. No man could make it for them.

It is true that President Roosevelt got the country into World War II. That is not the same thing. For a declaration of war he went to Congress—after the Japanese had attacked Pearl Harbor. He wanted it, he had planned it, and yet the Constitution forbade him to declare war and he durst not do it.

Nine years later a much weaker President did.

After President Truman, alone and without either the consent or knowledge of Congress, had declared war on the Korean aggressor, 7000 miles away, Congress condoned his usurpation of its exclusive Constitutional power. More than that, his political supporters in Congress argued that in the modern case that sentence in the Constitution conferring upon Congress the sole power to declare war was obsolete.

For the latter, we have this ongoing conundrum:

I'll let you know what's going on, but I don't need new congressional authority to act, President Barack Obama told congressional leaders Wednesday about his upcoming decision on possible military intervention in Iraq....

Earlier, spokesman Jay Carney spelled out one limit to any U.S. help, saying: "The President hasn't ruled out anything except sending U.S. combat troops into Iraq."

While the White House statement emphasized Obama would continue to consult with Congress, Senate Republican leader Mitch McConnell of Kentucky said the President "basically just briefed us on the situation in Iraq and indicated he didn't feel he had any need for authority from us for the steps that he might take."

House Democratic leader Nancy Pelosi of California agreed with McConnell's assessment, adding she believed congressional authorization for military force in Iraq back in 2001 and 2003 still applied.

Is Pelosi correct? Was there no expiration date or condition attached to the 2002 Authorization for the Use of Military Force Against Iraq?

There's more than one way to look at this. First, Congress never ratified a war-ending treaty, nor did it ever pass a resolution ending the war. That would seem to confirm the Obama / Pelosi stance. However, the point of the war was to extirpate an undesirable government, that of Saddam Hussein and the Ba'ath Party. When in 2004 Paul Bremer presented Iyad Allawi with the document that yielded sovereignty over Iraq to the transitional government, one could argue that the war had ended, having both achieved its purpose and left an acceptable government in place. That would seem to cross-cut the Obama / Pelosi representations. No doubt there are other perspectives worthy of consideration.

One of the enduring Constitutional puzzles is whether Congress's power to declare war is unilateral. A declaration of war is not a law, but rather a legislative recognition of a condition in being. Inasmuch as one of the Founding Fathers' key intentions was to prevent the president from taking the nation to war, it's been argued that presidential consent to a declaration of war is not required. However, presidents have in recent memory muddied the waters by signing Congressional declarations of war as if they were laws of the more mundane sort. The inverse case is equally unclear: were Congress to vote that the United States is no longer in a state of war with anyone, would the president have the power to veto the resolution?

There are indeed places where the Constitution could have used a bit more clarity.

The Libyan intervention Obama undertook without Congressional authorization has left Congress uneasy, in a bipartisan fashion, for a change, about The Won's use of our armed forces. Coupled with his hasty and irresponsible withdrawal of all American personnel from Iraq against all the advice of his top commanders, which is arguably responsible for Iraq's current woes, it's left many of our legislators wondering whether there's any chance of reining in the loose cannon in the Oval Office. This newest assertion of unilateral power -- a power of life and death, at that -- should have put them all, Democrat and Republican, on high alert, but the signs of such are unclear.

Given the lily-livered way it has approached the Obama Administration's other scandalous undertakings -- an excellent and largely comprehensive list can be found at this site -- it's probably too much to expect that Congress will take resolute action to preserve this aspect of the separation of powers. Yes, Congress could still surprise us, for example by mustering a two-thirds majority in both houses declaring that all authorization for the use of military force has expired, or by denying the president any funding for further military operations outside the United States. But what are the odds? Especially given that Obama's serial floutings of Constitutional constraints have gone unaddressed up to now?

The list of Obama's impeachable offenses is already quite extensive, yet he remains in office. Somehow I doubt that he would hesitate to add to it. Not for very long, at least.