Posted on 03/17/2003 6:03:58 AM PST by Free Fire Zone
Does a President have the Constitutional Authority to initiate a Military Conflict as Commander in Chief?
Analysis By Robert Greenslade - Sierra Times.com
With a military conflict against Iraq apparently only days away, the power of the president, as commander in chief, continues to be debated by political pundits in the media. Several commentators claim the president does not need any congressional authorization to initiate military actions against another country because the president is the commander in chief of the military forces of the United States. This is a total misconception of the commander in chief powers. A president does not have the constitutional authority to act, in an offensive capacity, until Congress gives him control of military forces of the United States through a formal declaration of war.
A president can, however, act in a defensive capacity if another nation attacks the United States or its military, without consulting Congress, because such an attack would constitute a declaration of war against the United States. Thus, a president could assume the commander in chief powers to protect the United States and its military pending a congressional declaration of war against the offending country.
During the debates in the Federal [Constitutional] Convention of 1787, a draft of the proposed constitution contained a provision granting Congress the power "to make war." A separate proposal to vest this power in the president was debated and rejected. It was asserted that the president should not have the power to initiate war because he could not be trusted with such a power. In addition, a proposal to substitute the word "declare" for "make" was agreed to unanimously. Thus, the constitutional power to initiate or declare war was vested solely in the Congress.
Alexander Hamilton discussed the commander in chief powers of the president in Federalist Essay No. 69. He compared the powers of the president, under the proposed constitution, to that of the King of Great Britain:
The President is to be the commander-in-chief of the army and navy of the United States. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,¾ all which, by the Constitution under consideration, would appertain to the legislature.
As stated by Hamilton, the power of the president, concerning the regular forces of the United States, was inferior to that of the king of Great Britain because he lacked the constitutional power to declare war. The president, in this regard, acts only in the capacity of a supreme admiral or general after a declaration of war by Congress.
Since a president acts merely as the highest-ranking admiral or general, he lacks the constitutional authority to determine the nation that war can be waged against. Only Congress can make that determination. This is the purpose of a formal declaration of war. It specifically designates the nation or nations that can be attacked. Once this is done, the president then receives the power to act offensively and prosecute the war to its conclusion.
The action taken by President Roosevelt and Congress the day after the Japanese attack on Pearl Harbor in 1941 demonstrates how this constitutional process is suppose to take place. On December 8, Roosevelt appeared before a Joint Session of Congress and requested that body formally declare war on Japan. The Congressional Declaration of War adopted pursuant to his request stated in part:
Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.
Once war was formally declared, President Roosevelt, as stated in the Declaration, received the authority, from Congress, to take control of the military forces of the United States and prosecute the war to its conclusion.
When Germany declared war on the United States three days later, Roosevelt again appeared before a Joint Session of Congress. Congress responded by formally declaring war on Germany. This Declaration gave Roosevelt separate authorization and control over the military forces of the United States. Each Declaration was distinct from the other.
If the president, as commander in chief, had the constitutional authority to initiate war, as some now claim, then there would have been no need for President Roosevelt to have appeared before a Joint Session of Congress on two separate occasions in 1941. He could have simply by-passed Congress by invoking his authority as commander in chief. In addition, if a president has unlimited control over the military forces of the United States, then why did it take two separate declarations of war in 1941 to authorize and direct President Roosevelt to employ the military forces of the United States against Japan and Germany? If the office of the president had independent power over the military, through the commander in chief provision, then President Roosevelt could have authorized and directed himself to employ United States forces against these nations.
World War II was the last time Congress and the office of the president complied with the declaration of war requirement. Since the conclusion of that war, Congress has either stood by idly or aided and abetted presidential usurpations of power. Presidents have been allowed to unconstitutionally take control of the military forces of the United States and employ offensive force against sovereign nations without securing a declaration of war.
Following the 2001 air piracy acts, resulting in attacks on the World Trade Towers and the Pentagon, Congress passed a resolution of force granting the president the power to determine the nation or nations to be attacked. This amounts to an unconstitutional transfer of power from the legislative branch to the executive branch.
In addition, it totally violates the intent of the Founders. As discussed above, the war provisions were set-up specifically to prevent the office of the president from having the power "to make war." The recent resolution of force passed by Congress overturns this principle and grants the president the power to make war against any nation he sees fit.
During the past few years, federal politicians have constantly lectured the American people on the importance of the "rule of law." The Constitution, as far as federal powers are concerned, is the "rule of law." Whenever federal politicians violate the Constitution they are reduced to the status of lawbreakers. Yet these same politicians are attempting place this label on Iraq in order to justify an attack on that nation.
An offensive assault on Iraq would constitute an act of war by the United States. It appears, from the rhetoric emanating from Washington, that the United States intends to attack Iraq without a constitutional declaration of war. If the American people do not hold Congress and the president accountable for an attack on another nation without a formal declaration of war, then they are endorsing another usurpation of power by the federal government and the eventual overthrow of our constitutional system of government.
Note: In 1973, over a presidential veto, Congress passed a statute known as the War Powers Act. A provision of this Act purports to give a president extraordinary control over the military forces of the United States without a congressional declaration of war. It should be noted that Congress cannot grant itself or a president extraordinary constitutional powers by statute. Thus, it would take an amendment of the Constitution to lawfully change the war and commander in chief provisions of the Constitution.
Copyright 2003 The Sierra Times
Notice section two, which sets the context for the authorization, GOES STRICTLY THROUGH THE U.N.!
SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS
The Congress of the United States supports the efforts by the President to--
(a) strictly enforce through the United Nations Security Council all relevant Security Council resolutions applicable to Iraq and encourages him in those efforts; and
(b) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.
In section three, notice again that enforcement of UN resolutions are the key. It says "and", not "or", as in both requirements must be met to allow the President to use force. They are setting him up if things go wrong.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
As to the following, there is an "or" in this part, but note the connecting "and" between sections one and two of the following. Without a solid link between Saddam and the 911 maggots, this passage too is suspect.
(b) PRESIDENTIAL DETERMINATION.
In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon there after as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and
(2) acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001.
Words mean things. This is not a declaration of war that will take us into conflict a united people. This is congressional weasal wording that is desinged to let the dems share credit if things go right, and blame Bush if things go wrong.
Regardless, it is a declaration of war in the legal sense (see the post above yours).
And, IIRC, the support for this war (~70%) is higher than any in history. We've never been completely united going to war.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate.....(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
That is exactly what he is doing. They cannot cry foul, because they gave him language that they, in retrospect, do not like.
As to sec.3(b)1(B) He has already said flat out and more than once, and more importantly, correctly, that the UN is not enforcing it's own sanctions.
What's the difference?
Conservatives like the constitution too. Sometimes.
"Principles! We don nee no stinkin' principles!"
Good plan huh?
Well it's a moot point, since Congress voted Pres. Bush that authority on Iraq last year!
My part here may not be big, but that's what I'm here to do, help finish it.
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