Many uses of force occur in a constitutional twilight area where the respective rights of the president and Congress are debatable. Most twilight cases should be resolved in favor of the president. But the military offensive that the United States may soon initiate against Iraq is not a twilight case. Constitutionally, Congress must authorize any launching, from a standing start, of one of the largest military operations in American history. Authorization does not mean after-the-fact ratification. Authorization must be formal and explicit, not merely inferred from legislative silence or statements by individual legislators or collateral legislative activity. Congress must do this even though many members are eager to flee from responsibility. It is a duty, not a perquisite.
President Bush will either comply with the constitutional requirement for congressional authorization for war, or by unilaterally initiating war he will unilaterally amend the Constitution. Surely the Framers’ definition of war covers a collision between massed armies involving more than a million people. So as Walter Dellinger of Duke University law school says, “If the declaration of war clause does not apply here, it will have been stripped out of the Constitution.”
Many conservatives have defended vast presidential autonomy in conducting an interventionist foreign policy. But concerning domestic policy these conservatives advocate “strict construction” of the Constitution, meaning fidelity to the Framers’ “original content.” Such conservatives are now caught in a contradiction.
Although a delegate to the Constitutional Convention proposed giving the president power to initiate war, the Convention embraced Roger Sherman’s view, as expressed in Madison’s notes: “The Executive shd. be able to repel and not commence war.” The Convention substituted “declare” for “make” in defining Congress’s power relating to war because “make” might be misconstrued to mean “conduct.” The president can “make” (conduct) those wars that Congress, in determining policy, initiates. As explained by Hamilton in the Federalist Papers (number 69), Congress’s power reflects the Framers’ determination not to repeat Europe’s history of executive-initiated wars. And the Convention’s decision was not controversial.
The modern controversy about these powers began when Truman took the nation into Korea without Congress’s assent. He at least had the excuse of urgency - a surprise attack, and South Korea crumbling - and within days after the invasion Congress was enacting supportive measures. Still, Eisenhower understood the damage done to his predecessor by fighting an undeclared war. Eisenhower twice sought and got the kind of congressional support Bush has not sought. In 1955 Congress declared the president “authorized to employ” forces “as he deems necessary” for protecting Formosa and the Pescadores. In 1957 Congress declared: “If the president determines the necessity thereof, the United States is prepared to use armed forces” to aid Middle Eastern nations threatened by communist aggression.
On Jan. 19, 1956, Eisenhower told a press conference, “When it comes to the matter of war, there is only one place that I would go, and that is to the Congress of the United States, and tell them what I believe.” On April 4, 1956, asked yet again about war powers, he exclaimed: “I get discouraged sometimes here. I have announced time and time again that I will never be guilty of any kind of action that can be interpreted as war until Congress, which has the constitutional authority, says so. Now, there are times when troops, to defend themselves, may have to, you might say, undertake local warlike acts, but that is not the declaration of war, and that is not going to war, and I am not going to order any troops into anything that can be interpreted as war, until Congress directs it.”
Eisenhower, who had studied war all his life and had practiced politics in and for the Army, made a reasonable distinction. Not all uses of force, not all warlike acts, constitute war. But anything reasonably interpreted as war must be “directed,” meaning ordered, by Congress.
Today’s president is content merely to reiterate the statement that history is “replete” with instances (about 200, he said last week) when presidents have used force without congressional authorization. Bush apparently believes that incantation of this number suffices as a constitutional argument. But almost all those uses of force, from the sorties Washington ordered against Indians, to the naval action Jefferson ordered against the Barbary pirates, and beyond, were brief and were directed not against sovereign states but against merely episodic threats. Most occurred when communication within America was slow and travel was arduous and Congress was dispersed most of the time. And as Arthur Schlesinger says, when Lincoln in the spring of 1861 and Roosevelt in the autumn of 1941 breached the Constitution with military measures, their excuse was acute national emergency. Neither made the impertinent claim that a right to initiate war is an inherent and routine presidential power.
Could Bush get away with the anti-constitutional act of initiating war on his own hook? Sure. Once the shooting starts, Congress has only two weapons and neither blunderbuss is practical: impeachment or defunding the war. So Bush is inhibited only by his oath of office (about preserving the Constitution) and prudential consideration.
When a war, like the impending one, approaches slowly and not at all stealthily, and when America is not repelling a surprise attack but launching a huge offensive as a matter of policy, the only reason for not seeking congressional support is that it cannot be got. But going to war without it is not something that real realists do.
