Why America Needs One, and not 535 Commanders-in-Chief; The Case For Abolishing The War Powers Act

Regardless of one’s view on whether to strike Assad or not, there can be no doubt that President Obama’s decision to seek Congressional approval for this action, and postpone the vote until Congress is in session again, has done grievous damage to both the war-making prestige of the Executive as well as the prestige of the United States.

 In subordinating his decision to strike Syria in a campaign of limited duration, President Obama insists that he is not compromising the authority of the Executive, but did so because “the country will be stronger” if Congress gives its formal sanction. Obama insisted that he had authority to act unilaterally. “[I] believe I have the authority to carry out this military action without specific congressional authorization,” he said Saturday when he announced he would seek Congress’ support.

Whether Congress will ultimately give the President the authority he needs to strike Syria is now an open question, and this decision, which puts the credibility of the United States at a crucial juncture on the whim of 535 decision-makers, is not only dangerous at the present crisis, but an invitation to possible chaos and paralysis in future conflicts, especially those of limited duration like the present one, where delay excessive debate can be fatal to the success of the mission. The President should, I believe, make bold and seek to regain his war-making authority that the founders had given all presidents for the benefit of all future Presidents, and begin by dispensing with the extra-constitutional shackle known as the War Powers Act.

***

The War Powers Act is an extra-constitutional nuisance and monstrosity, and needs to be repealed. It is an unpardonable intrusion on the prerogative of the Executive war-making power. It was born in sin, should be repealed, then cast to the dustbin.

The Gulf of Tonkin Resolution of 1964 was the progenitor of the War Powers Act of 1973. Though not a formal declaration of war, the resolution was a de facto declaration in that it gave the President full authority for the conduct of the war. When the Vietnam War became unpopular many members of Congress asserted, among other things, that they had not known what they were voting for, that there had been no real debate on it, and that Johnson had misled Congress into voting for the resolution. Thus, members of Congress contended, Johnson had misled the Congress and America into the Vietnam War.

These arguments will not stand up. Barring the excuse of illiteracy, members of Congress could not have been unaware of what they were voting for and the resolution was debated a full eight hours in the Senate. As to being misled, while there has been controversy, yet fully unresolved, over the second attack on the USS Maddox in the 1964 Gulf of Tonkin incident, the controversy itself misses the point. America did not go to war in Vietnam because of the Gulf of Tonkin incident. It had already been involved in the war for several years supporting the government of South Vietnam in resisting the aggression from the North.

The Tonkin Resolution merely gave the President the full Congressional authority to use military force in assisting the South Vietnamese as he saw fit whenever it should become necessary, as it did in 1965 when Johnson ordered the first large deployment of troops in Vietnam. If there had been no Gulf of Tonkin incident Johnson would simply have come before Congress in 1965 to ask for a resolution granting him the authority to escalate our involvement and send troops to help support South Vietnam. Given the overwhelming bipartisan support in Congress and the public for the war in 1965, there is not the slightest reason to doubt that Congress would have given Johnson in 1965 everything they had given him in 1964. Bottom line: Congress and the American people were not misled into the Vietnam War.

I have dilated a bit on the Gulf of Tonkin resolution to illustrate an important point: that the Johnson and Nixon administrations both conducted the Vietnam War within Constitutional parameters and legality, thus rendering the passage of the War Powers Act in 1973 to be a partisan and completely unnecessary intrusion on the prerogatives of the Executive by then-Democrats in congress. It was an astonishing emasculation of Executive power. It posed a solution to a problem that did not even exist. The real political problems faced by Congress in America’s conduct of the Vietnam War in the early seventies then, was not in the constitution, but in the war’s long duration and current unpopularity.

Like many in Congress and in the media who had once supported the war in Iraq but recanted when it became unpopular, prominent lawmakers like Senator William Fullbright, who steered the Tonkin Resolution through the Senate in 1964, and Senator Frank Church, both of whom were strong, vocal supporters of the war in 1965, now needed to absolve themselves from the taint of an unpopular war they had once supported when it was popular to do so. They found a scapegoat: the Presidency. The President, they said, had lied the nation into war and exceeded his Constitutional mandate. (Sound familiar?)

Therefore, they argued, Congress must pass a resolution constraining the President’s executive authority lest we have more Vietnams. Of course, this completely ignored the fact that Congress had supported the war with a resolution that, at the time, had overwhelming Congressional and popular approval, and that Congress had been consulted by the White House and the military on the war all along. The problem, as they were surely well aware, was in the now-unpopular war they had once strongly supported, not in the passage of the Tonkin Resolution or the constitution.

The War Powers Act was thus conceived in a welter of cynical, partisan maneuvering and gamesmenship. It allowed Democrats to scapegoat an unpopular war on to the presidency, to emasculate the power of the Executive in favor of Congress, and publicly humiliate the long-hated President Nixon, all in one stroke. How agreeable to combine duty with sport; the Democrats could thus have their fun subverting the Constitution for wholly spurious and nakedly partisan reasons, all under the guise of being it’s stout defenders. How convenient. In retrospect, the WP Resolution, I think, can be seen as an overreaction to the Vietnam War in the same way that the Independent Counsel Statute, which was to so torment the Reagan, Bush Sr., and Clinton Administrations, was an overreaction to Watergate. The court, in Berk v. Laird (1970) rejected charges that the war was unconstitutionally conducted by either the Johnson or Nixon Administrations.

Of course, the real consequences of Congress’s neutering of Executive power would not be suffered by Americans but by the peoples of Indochina. Months after signing the Peace Accords in 1973, Nixon found his ability to enforce the treaty and respond to North Vietnam’s violations of the Accords hamstrung by Congressional Democrats, who, intent on exploiting Nixon’s self-inflicted embroilment in Watergate, passed the WP Resolution over his veto. Now, with anti-war Democrats controlling American foreign policy, began one of the most shameful episodes in our history as a nation: the slow strangulation of American aid to the peoples of Cambodia and South Vietnam and our utter abandonment of them to the tyranny and genocide that we had fought eight years and sacrificed 58,000 lives to prevent.

Some several hundred thousand South Vietnamese would perish in concentration camps and on the high seas, and some 1-2 million Cambodians would be killed in one of the worst Communist-engineered genocides of the 20th century. Yet, here for all to see, was the “peace” that the media, the Peace Movement, and pro-war hawks-now turned anti-war Democrat doves like William Fullbright, Ted Kennedy, and George McGovern had labored so long and hard to bring about.

***

All of which illustrates the perils of excessive Congressional control over military and foreign policy decisions that the founders had wisely put in the Executive. Even worse has been the Democrats cynical and highly selective invocations of the WP Act for partisan purposes in the courts, often with the help of liberal academics and the ACLU. In 1982 Congressmen sued to stop the Reagan Administration from sending aid to El Salvador and sued to challenge the constitutionality of the 1983 Grenada operation in 1984. In 1987 110 Congressmen sued to stop Reagan from, of all things, providing armed escorts to oil tankers traveling in the Persian Gulf.

In 1990 53 congressmen sued Bush Sr. in federal court because he had not yet received congressional approval for the Gulf War. The results of these legal crusades has been one of abject failure: the legal basis for these claims has been so weak that the federal courts have refused to even hear them, and the Supreme Court has never ruled on the constitutionality of the War Powers Act. Of course, no Congressional Democrats ever sued the Clinton Administration for its deployments and military actions in Somalia, Haiti, Bosnia, Iraq, Sudan and Afghanistan in 1998, and Kosovo in 1999, not to mention peacekeeping missions in Rwanda and Macedonia. All of which were conducted without congressional authorization, by the way.

All of this underscores the hypocritical and partisan character of the WP Act and its dubious constitutionality. It unconstitutionally usurps powers that the founders properly invested in the Executive, not Congress. It is implausible in theory and, as we have seen, unworkable and selectively applied in practice. It should be repealed.

***

The notion of Congressional control of war making powers is undermined by history. The pattern of Executive conduct of military interventions since the founding of the Republic in 1788 have always favored strong executive initiative and leadership. Of the 100 military interventions since 1788, only five have been sanctioned with a formal declaration of war, though many, like the Gulf of Tonkin Resolution, were sanctioned with a conditional declaration of Congressional authorization.

Unlike post-Vietnam Congressional Democrats, the Framers had a flexible view of the allocation of war powers and the practice of Presidents and Congress since the founding has only served to support the exercise of strong Executive powers. Alexander Hamilton described the powers of the Presidency as short of the powers of a British king. Yet Hamilton was also an advocate for strong Executive leadership in time of war, saying “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of Executive authority.” This should be done by Presidents, he said, because they alone can act with “decision, activity, and dispatch” and “energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.”

The Framers, while suspicious of excessive power in the Executive, thus instinctively understood that war conducted by Congressional fiat was an invitation to chaos and insecurity. As Madison said to Patrick Henry “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.” The genius of the constitution then, is that it brilliantly and flexibly favors strong executive leadership that is checked and balanced by Congress’s power of the purse. It does not need the WP Resolution to disrupt and derail this eminently wise and sensible state of affairs.