The judge of "when a war ought to be commenced" must, therefore, be Congress.
James Madison also viewed the vesting of the power in Congress as making sure we would only get involved in the horrors of war when absolutely necessary. "The Ex. is the branch of power most interested in war, & most prone to it," and that is exactly why the Framers made sure the Executive had no say whatever in whether or not we go to war, and "vested the question of war in the Legisl"(Letter to Jefferson, 1798). The essential principle of checks and balances requires that the person who conducts a war (the President) cannot be the judge of "whether
a war ought to be
commenced, continued, or
concluded" (Letter to Helvidius, No. 1, 1793). The judge of "when a war ought to be commenced" must, therefore, be Congress.
Academics often mischaracterize Alexander Hamilton as a Founder who believed that the President can get the U.S. into wars, but Hamilton said no such thing. In
Pacificus No. 1 (1793), Hamilton stated: "It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The legislature alone can interrupt those blessings, by placing the Nation in a state of War." There is no ambiguity here: according to Hamilton, Congress alone has the power to get the U.S. into a war.
In the bigger picture, the power of Congress to declare war fits into the over-riding principle of republican government: for our own safety, we the people must have input through our representatives into the decisions of government. As James Kent said, "the effectual security and enjoyment of [our lives, liberties, and property] depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare." In no area is this right of self-government more crucial than when it comes to the decision to get the U.S. involved in war, because war of necessity places in jeopardy the lives, liberties, and property of the people.
President Obama's actions and statements
Compare all of this to President Obama's actions and statements. In 2011, as even
liberals conceded, Obama "[committed U.S. troops to Libya without Congressional approval." When the President talked about military action in Syria last August, he invited Congress to authorize his actions, but nevertheless stated: "I believe I have the authority to carry out this military action without specific congressional authorization." A year later, as the President contemplates military action against ISIS in Syria and Iraq,
people who have spoken with the President inform us that Obama "does not believe he needs formal congressional approval to take that action." This belief is "is based on the reports Obama has filed with Congress under the War Powers Act and the earlier congressional authorization for the war in Iraq."
In all fairness, it is necessary to point out that President Obama is not the first President to think he has the power to take the U.S. to war unilaterally. In 1991, when the first President Bush was asked if he needed a Congressional Resolution (not even a declaration of war) to send the U.S. military into Iraq, he responded: "I don't think I need it... I...feel that I have the constitutional authority -- many attorneys having so advised me." Three years later, when a reporter asked President Clinton if he needed the support of Congress to send U.S. troops to Haiti, he concurred that the consent of Congress was unnecessary: "I would welcome the support of the Congress, and I hope that I will have that. Like my predecessors of both parties, I have not agreed that I was constitutionally mandated to get it..." In fact, the U.S. has fought many wars since WWII, but WWII is the last war that we fought with the constitutional authority of a declaration of war. In view of the Founders' statements quoted above, this means nothing less than the fact that we live under a different regime than we lived under before that time, a regime that has little or no self-government, and littler or no constitutionally limited government. It also goes a long way to explaining why the U.S. has engaged in so many military actions since WWII: the "effectual check" that guarantees that "nothing but our national interest can draw us into war" is no longer in place.
To make it clear that this is not a partisan attack on President Obama, it is also necessary to point out that the recent war in Iraq was itself not pursued as a result of a Congressional declaration of war, as the Constitution requires. Instead of a Congressional declaration of war, Congress authorized President Bush to decide whether or not to use force. The 2003 Congressional authorization stated: "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" (emphasis added). By this resolution, Congress authorizes the President to decide whether or not to "let loose the dogs of war." On the same day this resolution was passed, President Bush said, "With this resolution, Congress has now authorized the use of force. I have not ordered the use of force. I hope the use of force will not become necessary. Yet, confronting the threat posed by Iraq is necessary, by whatever means that requires" This makes it clear that it was President Bush, and not Congress, who decided that we would go to war in Iraq. Now, there is no question that Saddam Hussein was a dangerous man, to the U.S. and others. He had retained the ability to produce WMD in a short period of time (see the Duelfer Report), and he supported international terrorism. All of this made him a legitimate threat. Nevertheless, Congress has no authority to delegate the war power to the President (that would require a constitutional amendment), and this authorization does not satisfy the requirement of the Constitution and Founders that only the legislature has rightful authority decide if and when we are to commence a war.
Now, to consider President Obama's justifications to use force against ISIS. To use force against ISIS forces in Iraq, Obama cites Congress's 2003 authorization to use force in Iraq. As stated above, the 2003 authorization did not meet the Constitutional requirement for the Iraq war itself, let along action against the Islamic State in 2014. Further, if one reads the full resolution, it was based on the belief that Iraq possessed the capacity to produce WMD, and was likely to provide those WMD to terrorists, based on Saddam's history of financing international terrorism. No such justification exists in the case of ISIS, and for both of these reasons the 2003 authorization to use force in Iraq cannot be used as a constitutional justification to use force against ISIS in Iraq.
Obama's justification for using force against ISIS in Syria was originally based on "reports Obama has filed with Congress under the War Powers Act." It is true that the War Powers Resolution of 1973 authorizes the President to introduce U.S. troops into hostilities, provided that he "
submit [a report] within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate" and withdraw the troops unless he received Congressional authorization to use force (or a declaration of war)
within 60 days of the date the initial report was due. It should be obvious from the statements of the Founders quoted and explained above that "reports Obama has filed with Congress under the War Powers Act" do not satisfy the constitutional and republican principles of legislative declarations of war. Sometime before the President's speech on using force against the Islamic State, the President's advisers
changed the justification from reports previously filed under the War Powers Resolution to the 2001 Congressional authorization to use force against those who carried out the 9/11 attacks. This was presumably to make it unnecessary for the President to ever get Congressional authorization for using force in Syria, as the War Powers Resolution would require. Now, the 2001 authorization does not meet constitutional requirements any more that the 2003 resolution or reports under the War Powers Resolution. Not only was the 2001 authorization not a Congressional declaration of war, but ISIS was not among "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,or harbored such organizations or persons." For those who believe in constitutional and republican principles (and such people are typically described as conservatives), none of the justifications used by President Obama to use force against the Islamic State in Iraq or Syria meet the constitutional requirement of making sure Congress is the branch of government that decides whether or not we go to war.
In
recent discussions, President Obama "made clear his belief that he has the authority to attack the militant Islamist group on both sides of the Iraq-Syria border to protect U.S national security." Now, it may be true that if we do not destroy ISIS overseas, they will commit acts of terror within the U.S. If it is, then let Congress declare war against ISIS. The U.S. Constitution and the principle of self-government are both designed above all to prevent Americans from being harmed by their own government.
Those of us who are truly concerned about national security will, therefore, insist that we not place our self in danger of being harmed by our own government by letting the war power fall into the hands of a single man.
