Regarding Syria: War, Peace and the Constitution
Amidst the international humiliation and farce we have suffered with our abortive war with Syria, there are two good things the President has done, and they need to be noted.
Last night, he stepped back from an international crisis that could have had catastrophic consequences, by deferring to the Russian diplomatic initiative. Thank God.
And last week, he stepped back from a constitutional crisis, by deferring to Congress the decision over whether to go to war – as the Constitution requires.
I have been deeply troubled by suggestions from many otherwise responsible officials and commentators -- from both parties -- that the President has independent authority as commander in chief to order an attack on other countries when he deems it necessary. This cuts right to the core of our Constitution’s design and it evinces an alarming deterioration of the popular understanding of the separation of powers that keeps us free.
There is nothing more clear in the American Constitution than that Congress has the sole authority to decide the question of war or peace. Only after Congress has made that decision does the President, as commander in chief, have the authority to execute that decision.
For centuries, European monarchs had plunged their nations into bloody and debilitating wars on whim and the Constitution’s framers wanted to protect the American Republic from that fate. They understood that a President, for example, might someday paint himself into a rhetorical corner and feel compelled to save face by military force. That is precisely why they entrusted that fateful decision to Congress.
James Madison, the father of the American Constitution, said that its single most important feature was the provision that gave Congress and not the President, the authority to go to war. Here’s what he wrote in 1793:
“In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department…the trust and the temptation would be too great for any one man…War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created and it is the executive will which is to direct it. In war, the public treasures are to be unlocked, and it is the executive hand which is to dispense them …Those who are to conduct a war cannot in the nature of things, be proper or safe judges whether a war ought to be commenced, continued, or concluded.”
In Federalist 69, Alexander Hamilton wrote that one of the most important differences between the British King and the American President is that the King can plunge his nation into war on his command, but that the American President has no such authority.
The Constitutional Convention gave careful consideration to the clause that provides that “Congress shall declare war.” They chose that word carefully, to make clear that the only independent war-making power the President has is to repel an attack.
The War Powers Act makes this explicit: that absent congressional authority, the President may ONLY order our armed forces into hostility in response to – quote – “a national emergency created by an attack upon the United States, its armed forces, or its territories or possessions.” Anything else requires PRIOR congressional action.
The United Nations Participation Act by which we entered the U.N. requires Congress to act before American forces are ordered into hostilities in U.N. actions. The War Powers Act specifically forbids inferring from any treaty the power to order American forces into hostilities without specific congressional authorization.
Some have used the past violation of this constitutional stricture, (for example in Kosovo or most recently in Libya), as justification for its violation now. That is precisely the point: if any violation of this fundamental constitutional provision can be used as justification for its outright nullification, then any such violation must be vigorously resisted, lest we risk losing for all time the most important check on the most momentous decision a government can make: to go to war.
War is destruction on a massive scale. To initiate such a thing unlawfully is the highest crime a public official could possibly commit. Indeed, if the power of impeachment were not intended for such an act as that, I cannot imagine what it would be for.
The President was absolutely right not to cross that line.