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Sunday, April 09, 2017

Presidential War Powers, Constitutionally Speaking

By Douglas V. Gibbs
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There has been a lot of discussion about whether or not the attack on an airfield by American Tomahawk missiles in early April of 2017 was a constitutional action by President Donald J. Trump, despite the fact that the military action occurred prior to the President receiving some kind of congressional approval for it.

First, let's set aside the "Congress has the authorization to declare war" argument, which argues the President cannot wage war without a declaration of war.  While it is true that in Article I, Section 8 of the United States Constitution the power to "Declare War" is granted to the U.S. Congress, that is not the issue in question, here.  There is no necessity for a declaration of war to accompany every military action.  The manners and procedures of such a requirement would be burdensome and obstructive to the President's need to be decisive and swift in military matters, when a quick hand is called for.  A Declaration of War is a formal, legislative act that informs the world of a state of war existing between the bodies named in that declaration, and also reveals that a long, drawn-out conflict is the subject of such a declaration.  Could you imagine how long it would take to get Congress to agree on the conditions of the declaration for every little military operation?  The fighting would be over before we could act, and our homeland or interests we wanted to protect would be in grave danger, as a result.

We know that the powers to "wage" war and "declare" war are separate functions because it is spelled out in various writings by the Founding Fathers, including the Articles of Confederation. Thomas Jefferson, and James Madison, also both carried out undeclared wars when they sent our military forces into battle against the Barbary Pirates. I do not present the example of the Barbary Wars to reveal "precedent" by past presidents as much as enabling myself to say, "Surely, Jefferson and Madison understood what was constitutional, so, their actions as President of the United States can be used as a yard stick in helping us understand the original intent of the Constitution regarding war powers."  Therefore, it is clear the President is authorized to "wage" war without a "declaration" of war simply because of the fact that Jefferson, and Madison (who is considered as being the 'father of the Constitution' waged war without a declaration when they were President of the United States).

Jefferson, and Madison, did, however, receive an apportionment of funding for the conflicts with the Barbary Pirates, and there was congressional knowledge of the conflict through mechanisms other than a Declaration of War.

In the end, we must first realize that the issue regarding Trump's strike against Syria is not about the power of declaring war, but regarding if he could "wage" war without any approval of any kind by Congress prior to his decision to order the missile strike.

While I did not present the Barbary Wars example to serve as precedent, there is plenty of precedent available established by various Presidents in America's History waging war without congressional approval.  Many scholars have used Abraham Lincoln, and others, as examples of presidents ordering military actions without the approval of Congress.  If one believes the U.S. Constitution to be a set social contract that must be interpreted based on original intent, rather than a living breathing document influenced by the whims of politicians, judges, and other influential forces who often do so with the aim of seeking to further their ideological narratives, past presidential precedent is not a factor that can be considered in this discussion.  So, for the sake of argument in this article, let us set aside any claims that Trump was allowed to do what he did because of past precedent based on the actions of other Presidents of the United States using military force without a congressional blessing.

My aim is to provide constitutional evidence regarding this matter, based on the language specifically used in the first and second articles of the U.S. Constitution.

When reading the writings of the men who served as delegates in the Constitutional Convention, while they did not agree on many things, one thing they did agree on was that they feared the central government being given too much authority, and using those powers against the people of the United States.  For example, they agreed that among the primary reasons for the creation of the federal government must be common defense, yet, they also feared the United States Government having a standing army that could be used against the people, or as an offensive force to take territory by military might in the name of conquest.  While some envisioned the United States becoming the "next great empire," they never desired that to occur through brutal military conquest, and instead by various countries and territories joining the union of States because of their desire to be a part of the Great Experiment.  George Washington and John Adams were also very adamant about foreign entanglements, and warned constantly to their colleagues, and future generations, against involving the United States in conflicts that do not have a strong bearing or a direct connection to our own territories, or interests.

The Framers of the Constitution did not place the "foreign entanglements" language in the U.S. Constitution, however.  While most of them understood the dangers of foreign entanglements, they also did not agree with the concepts of isolationism or protectionism, or at least not when these concepts are followed to an extreme degree.  While we wish to protect American interests, and only involve ourselves in situations directly involving the United States' interests, even the Framers understood that we live in a global community where trade and diplomacy with various nations was a necessity if the United States was to prosper.

The question, then, became, "How do we create a system that protects American interests, and essentially places 'America First,' without completely ignoring the reality that free trade and participation in the global community is also a necessity?"

When we talk about the differences between the political right and left, we have to remember that based on the American political spectrum, the difference between right and left has nothing to do with opinions regarding nationalism, religion, or monarchy, and everything to do with the level of control of the central government in the system.  100% government control is at the far left, and 0% government control is far right; and then there are varying degrees along the spectrum that may lean right or left.  In short, it was understood that a central government that is too strong could lean leftward, and create the danger of oligarchs gaining control of our government.  However, it was also understood that a system with too weak of a central government, such as we see in a confederacy, or democracy, was also dangerous because despite the fear of a big government, in some issues a strong, central authority is necessary.  The U.S. Constitution, then, is a centrist document, and sits dead center on the political spectrum.  The U.S. Constitution was written to create a federal government with enough power to serve as a solid central government so as to protect, preserve and promote the union through a strong system of federal justice, the ability to mediate conflicts between the States so as to enable domestic tranquility, and a strong common defense.  When each of these parameters are appropriately met by the federal government, the country's residents can then rest easy because of the existence of the general condition of "all's well" throughout the country.  With the population at ease because they do not fear injustice, conflict between the States, nor the possibility of a foreign invasion because the federal government is strong enough to handle those issues, the Blessings of Liberty is maintained, not only for those who live in the country at that time, but for their posterity (those no yet born).

While a strong central government is necessary to establish justice, insure domestic tranquility and provide for the common defense, a strong central government, when it comes to its relationship with the States and the population can be a danger if it is allowed too many interior authorities.  Therefore, aside for a few interior issues, like the postal service, the monetary system, establishing uniform laws on the subject of bankruptcies, and establishing a fixed standard of weights and measures, the federal government has essentially no authorities regarding issues that involve the ordinary affairs of the States including the internal order, improvement, and prosperity of the States, nor concerning the lives, liberties, and properties of the people.

When it came to forming the federal government, the three branches were designed to be distinct, and to abide by the concept of a "separation of powers."  The legislative branch, which is the United States Congress, possesses all legislative powers, and no other branch possesses any legislative authorities (Article I, Section 1).  Likewise, the executive branch possesses all executive powers, and the judicial branch possesses all judicial powers.  However, based on necessity, there are some powers that are concurrent, though the individual branch's authority over these issues are very distinct.

Concurrent powers are those powers shared by more than one part of a governmental system.  An example to help explain what I mean takes us to the school system.  At a child's school, both the teacher and principal holds the authority to hand out detention as a punishment.  The power to issue a detention is a concurrent power.  However, their authorities regarding detention are very different.  While the teacher's authority over detention exists largely inside the classroom, or surrounds events specifically involving the class, a principal's power of giving detentions may not necessarily exist inside the classroom, but may involve the classroom if the teacher requests the principal's involvement, or the principal's power of giving detention may exist in the schoolyard, in the hallways, or regarding matters directly involving the school's main office.  The Principal, while punishing a student with a detention, may not necessarily require the teacher's permission to issue that detention, however.

For the United States Government, matters regarding "war" are shared between the U.S. Congress, and the United States President.  While both parts of the federal government hold authorities regarding war, their powers regarding the subject are very distinct, and different from each other.

While the Founding Fathers feared the potential of the President becoming a tyrannical leader, and did not wish for the President to hold "all" military authorities as would a monarch, it was also realized that the President, if he was to carry out his duties as Commander in Chief in a proper manner, needed to possess some powers regarding military activities.

As stated before, in the Articles of Confederation there is a distinction made between "waging" war and "declaring" war.  In the Articles, Congress held both powers, and the lessons learned during the forging of the new country revealed that doing so proved to be very restrictive, and had the potential of creating problems when it came to military strategy.

During the debates of the federal constitution in 1787, Madison's Notes reveal that Article II of the Constitution was written primarily with General George Washington in mind.  However, it was also understood that all Presidents would not have the military intelligence of Washington.  So, while granting to the President the authority to "wage" war, while leaving the power to "declare" war to the Congress, in Article II of the U.S. Constitution the document is careful to instruct that President that "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices."  In other words, while not required to, he may need to talk to the other military minds around him so as to assist him in his decision making when it comes to military decisions.

Article II reveals to us that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States," so there is no doubt of his position as the chief commander over the military forces.  But, there is a caveat.  The clause also includes, "when called into the actual Service of the United States."

In the case of the State militias (and most folks include the National Guard when it comes to language regarding militias), a militia can be called into the actual Service of the United States, or of a State.  In fact, the paycheck of a National Guard member can change from being issued by the federal government, or their State, depending upon who called up their militia unit.

In the case of the U.S. Military, we need to ask ourselves, "When is the U.S. Military in the actual Service of the United States?"

The answer is, "Always."

Let us return to Article I, Section 8 of the United States Constitution to clear all of this up.  Clause 11 tells us that Congress has the authority to declare war.  That is not a military order, or action, but a piece of legislation that states we are in a condition of war with other entities.  That piece of legislation serves as a formal declaration to the rest of the world, protecting us in many ways.  For example, if we are in a formal state of war that has been declared by our Congress, if a country that is not a part of the theater of war inadvertently enters the field of battle and is struck by our munitions, it cannot be assumed that we committed an act of war against that country because they had been warned by a formal declaration that the theater they were struck in is indeed a war zone.  However, if Congress has not formally declared war, the risk that such an action could be considered an act of war exists, and the responsibility rests on the Commander in Chief's shoulders because it was he, without Congress, that entered the U.S. Military into that battlefield.

Clause 11 also authorizes Congress to "grant Letters of Marque and Reprisal," which are maritime documents authorizing privately owned ships to act on behalf of the U.S. Navy.

On one particular Facebook thread I brought up that Jefferson and Madison engaged in the Barbary Wars without congressional approval, and more specifically, no declaration of war.  A person responded that Jefferson and Madison had received approval through "Letters of Marque and Reprisal."  Those documents, while it is true they were issued during the Barbary Wars in an attempt to assist our Navy by enlisting private vessels, do not have any bearing on military vessels or forces and did not constitute "congressional approval" of the military actions ordered by Presidents Jefferson and Madison.

Clause 12 authorizes Congress to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."  This means that as long as the money is being appropriated for the Army, which must be approved every two years so as to enable the representatives of the People (House of Representatives) to guard against a standing army by giving the House the option to starve the Army of funding if they deem it necessary, the army is in the Service of the United States.

Clause 13 grants to Congress the authority to "provide and maintain a Navy," which means the Navy shall be funded and raised at all times; which also means the U.S. Navy is always in the Service of the United States.

Clause 14 states that the Congress shall "make Rules for the Government and Regulation of the land and naval Forces."  Those of us who served in the U.S. Military will recognize that as the Uniform Code of Military Justice (UCMJ).  In short, the constitution of the military.  In other words, our access to our natural rights in the military are not the same as it is for other citizens of the United States.  For the sake of being a well-trained and well-disciplined fighting unit, the rules for living in the military are very different than what it is for civilians.

Then, the next couple clauses in Article I, Section 8 are specifically directed towards militias.

Now, let's return to Article II, Section 2.

"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 actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices."

The United States Military is always in actual Service of the United States, therefore, the President may utilize those forces as he deems necessary because he is the Commander in Chief.  However, if the use of the military needs to extend to a declared theater of war, then Congress needs to provide a "Declaration of War" for that to happen.  Use of the military on a battlefield or in various military operations is not dependent upon a Declaration of War before the military forces may go into military action, nor is the use of the military by the President for operations he believes to be necessary to protect the interests of the United States dependent upon congressional approval - because, the U.S. Military, unlike militias, are always (unless the Army is stripped of its funding) in the actual Service of the United States.  However, while the President is not required to receive congressional approval for each and every military action, if he believes he needs advise, he "may" consult the officers of his executive Departments for that advice.  Notice, Congress is not mentioned when it comes to the President's source for advice.

That all said, I am a true believer that if the amount of time is not restrictive, and the situation allows for it, the President ought to discuss his plan of action with Congress before using the military in a new conflict that may arise.  However, if the theater already exists (of which, our presence in the Middle East, and more specifically, Iraq and Syria, does), or if the necessity to be quiet about it, swift, and decisive arises (which it was, in the case of Syria, following the use of chemical weapons), despite my feelings that the President should consult Congress, it is not constitutionally necessary for him to do so.

Understand, I agree that the Framers of the U.S. Constitution did not desire the United States to be a "war-mongering" country with conquest on its heart.  But let us not be fooled in going to some other extreme by saying they did not want us to be involved in worldwide conflicts at all, or that the President should somehow be hamstrung by Congress before being able to take any action he deems necessary.  The Framers definitely saw the reality that we would likely be involved in long, drawn out declared wars and swift military actions.  Sometimes, it was understood, the President would find it necessary to wage war swiftly without consulting Congress.  Declared wars and military actions were seen by them as being two different things, which is why Congress has the authority to declare war, and when he deems it necessary, the President has the authority to wage war.

That said, when you see the quotes by the Founding Fathers warning against war or foreign entanglements being tossed around by the anti-war crowd, note that the Founders were referring to declared wars, or conflicts in which the United States has absolutely no interest in for any reason, not the necessary swift military actions that sometimes regrettably appear on our radar.

One more quick note: The War Powers Act of 1973 is often brought up in these discussions. While, if in line with constitutional authorities, such laws can be important tools in the debate, remember that no law can change authorities because no law supersedes the U.S. Constitution.  In other words, despite arguments to the contrary, including those that use the War Powers Act as their source, the President can, legally, use the military in combat operations (including sending Tomahawk missiles into an airfield in Syria) without congressional approval, or even letting them know he's going to do so in the first place.

-- Political Pistachio Conservative News and Commentary

P.S.  For those of you who still disagree because you "interpret" the Constitution as saying differently, your opinion is largely fueled by a narrative, not an objective rendering of the actual language.  Read Article I, Section 8 and Article II, Section 2 again very carefully.  Where does it require the President to get congressional approval?  It's just not there....

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