The Phony Arguments for Presidential War Powers

[Cold Highway]

Ever since the Korean War, Article II, Section 2 of the Constitution – which refers to the president as the “Commander in Chief of the Army and Navy of the United States” – has been interpreted this way.

But what the framers actually meant by that clause was that once war has been declared, it was the President’s responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have “the direction of war when authorized or begun.” The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to “declare” war, not to “make” war, which was thought to be a necessary emergency power in case of foreign attack).

The Framers assigned to Congress what David Gray Adler has called “senior status in a partnership with the president for the purpose of conducting foreign policy.” Congress possesses the power “to regulate Commerce with foreign Nations,” “to raise and support Armies,” to “grant Letters of Marque and Reprisal,” to “provide for the common Defense,” and even “to declare War.” Congress shares with the president the power to make treaties and to appoint ambassadors. As for the president himself, he is assigned only two powers relating to foreign affairs: he is commander-in-chief of the armed forces, and he has the power to receive ambassadors.

Last time I checked the executive is not a king but who knows at this point.

The Phony Arguments for Presidential War Powers | Tom Woods - New York Times Bestselling Author

 

[ARealConservative]

Last time I checked the executive is not a king but who knows at this point.

The Phony Arguments for Presidential War Powers | Tom Woods - New York Times Bestselling Author

these facts are bullet proof, yet people keep firing away at them.

 

[The Sovereign]

The phrasing in the US Constitution is ambiguous. The Constitution never explicitly says that commencement of war must first be authorized or declared by Congress, but it is assumed (based on the language of the Constitution itself) that the framers wanted both the President and Congress to share and cooperate in war-making functions.

With that said, it is highly doubtful that the Constitution was written in a way as to allow the President to commence a war without at least the most implicit authorization by the legislative branch of government. Unfortunately, since the time of Truman during the Korean War, presidents have taken up a monopoly on the war-making powers and have often disregarded Congress even when efforts were made to curb the President's excessive war-making powers (see War Power Resolution of 1973).

The problem with this issue is that it has never really been clarified by SCOTUS (and SCOTUS has very good reasons not to). And Congress has also largely acquiesced to the powers of the presidency which means the president's war-making powers are largely left unchecked by the other two branches of government. Presidents see it as their constitutional duty to direct and decide when, how and why a war is commenced without the need to resort to Congress for declaration or approval, and that seems to be a constitutional dilemma.

 

[PzKfW IVe]

The Constitution creates no limitations on the Article II powers of the CinC, because a de facto state of war can exist w/o any such declaration by Congress.
This was true back in 1787; it is even more true today.

 

[xpiher]

The War's Power Act was passed by Congress and upheld by the Supreme Court. Congress has the authority to establish laws, even laws that takes power away from Congress.

 

[The Sovereign]

The War's Power Act was passed by Congress and upheld by the Supreme Court.

As far as I'm aware, the constitutionality of the War Powers Resolution was never brought to the Supreme Court.

Congress has the authority to establish laws, even laws that takes power away from Congress.

Could you further elaborate? As far as I'm aware, the WPR doesn't take power away from Congress (clarification is needed concerning whether that was your implication). The issue that presidents have raised is that it takes power away from their own constitutional powers as Commanders-in-Chief, and thus, according to them, the WPR is unconstitutional. To the contrary, Presidents swear an oath to uphold the laws of the United States (which means the laws passed by Congress) and the WPR is one of them, but paradoxically, since the President believes the WPR is unconstitutional, then he feels he does not have a duty to abide such a law.

 

[Schaff]

As previously mentioned by "The Sovereign", the Constitution is ambiguous. The Constitution was written during a time period much different than our own, and since then the demands of our time have changed, along with the mindset of the American nation. In result of this, the way the general public views the presidency is quite different than what the role was actually intended to be. With this distorted image of the presidency, I believe we have created a Constitutional dilemma in which neither Congress nor SCOTUS really know how to tackle.

Thankfully, politics play a large role in the president's decision. A president will not declare war on a nation that a majority of the nation is in opposition of, because that will greatly impact the approval rating. Sometimes I feel politics get in the way, as I do with the recent budget issue, but in this case I think we have politics to thank for this dilemma not getting out of control.

 

[PzKfW IVe]

The War's Power Act was passed by Congress and upheld by the Supreme Court.

The WPA was passed by Congress. vetoed by Nixon and then overridden by Congress.
The SCotUS has never ruled on the WPA.
Nothing in the Constitution gives Congress the power to restrict the Article II powers of the CinC, when the country is at war or when it is not.

Congress has the authority to establish laws, even laws that takes power away from [Congress}

I think you meant "President."
That's very case specific, and it relies on a specific grant of power from the Constitution.
There's no such grant in this case.

 

[PzKfW IVe]

Thankfully, politics play a large role in the president's decision. A president will not declare war on a nation that a majority of the nation is in opposition of, because that will greatly impact the approval rating. Sometimes I feel politics get in the way, as I do with the recent budget issue, but in this case I think we have politics to thank for this dilemma not getting out of control.

Even now, under the current WPA, the CinC can, legally, start a war with another state, w/o any approval from Congress.
It would then be up to congress to fund this war, but it is easy to see how the CinC could create a condition where it is impossible for Congress not to do so.

 

[The Sovereign]

Even now, under the current WPA, the CinC can, legally, start a war with another state, w/o any approval from Congress.

Yes, but there are many restrictions and disclaimers to this authorization. For one, the President may only commence a war without prior approval from Congress if the US is retaliating against an attack (or preventing an imminent attack), if American troops stationed abroad are in direct danger, or if American nationals abroad need to be rescued. The President is then required to end military action unless Congress approves a continuation of action within 30 days. The President may only overturn the 30 day time-period for approval if he determines that unavoidable military losses will incur without any military action.

Thus, for example, the current Libyan conflict would not fall under the War Powers Resolution because the United States (or any of its troops abroad) was not in direct danger by another foreign state.

 

[Schaff]

Yes, but there are many restrictions and disclaimers to this authorization. For one, the President may only commence a war without prior approval from Congress if the US is retaliating against an attack (or preventing an imminent attack), if American troops stationed abroad are in direct danger, or if American nationals abroad need to be rescued. The President is then required to end military action unless Congress approves a continuation of action within 30 days. The President may only overturn the 30 day time-period for approval if he determines that unavoidable military losses will incur without any military action.

Thus, for example, the current Libyan conflict would not fall under the War Powers Resolution because the United States (or any of its troops abroad) was not in direct danger by another foreign state.

I think some of the issue with this is seen with the statement you made here:

"The President may only overturn the 30 day time-period for approval if he determines that unavoidable military losses will incur without any military action."

Again, this could put the president at a crossroads. Chances are it's never a clear cut situation, and the president will be presented with figures and speculation. From there, if he determines it is necessary, the military action will commence. That does not, however, mean that the president's decision was correct or something the Congress would have agreed with.

The War Powers Act does a good job at regulating the president's powers, but there are still circumstances during which issues can remain.

 

[The Sovereign]

I think some of the issue with this is seen with the statement you made here:

"The President may only overturn the 30 day time-period for approval if he determines that unavoidable military losses will incur without any military action."

Again, this could put the president at a crossroads. Chances are it's never a clear cut situation, and the president will be presented with figures and speculation. From there, if he determines it is necessary, the military action will commence. That does not, however, mean that the president's decision was correct or something the Congress would have agreed with.

The War Powers Act does a good job at regulating the president's powers, but there are still circumstances during which issues can remain.

The War Powers Resolution is good in theory. But in practice, it's hardly taken seriously by modern presidents. And since the SCOTUS doesn't seem to want to deal with this constitutional matter, there are very few practical avenues for Congress to curb the (excessive) power of the presidency in this regard.

You'll even notice that when presidents acknowledge the War Powers Resolutions prior to commencing military action, they indicate that they are acting in accordance to the Resolution, and not pursuant to it.

 

[Quinticello]

Unfortunately, politics alone will not always ensure the peaceful intentions of presidential politics as some wars can be popular. Laws are required to govern the actions of politicians and people alike if we are to avoid anarchy and general chaos, so all active laws must be taken seriously. The times may change from generation to generation, but the motives and condition of man kind are a constant. And our laws are in place to ensure their stability of checks and balances. I believe that congress can diminish its own ability to exercise powers but not completely restrict or abolish them. And as the WPA stands, the president has between 60-90 days to get approval or extension from congress. In Libya I think we're at day 77, but given the significance of this matter and how broad the granted powers are, perhaps congress should at least revisit this issue. It does seem like somewhat excessive power in my view.