The Coming War Powers Debate
This is a good thing! The Congress never has had the authority to delegate their delegated authority to the Executive Branch. Yet, they have done it unlawfully, which has resulted in president after president engaging in acts of war against other nations. Now, it seems there is being a challenged and it’s more than welcome.
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“….as this bill is debated Congress take a look at the issue from the other end of the telescope — the question of who has the power to make peace. One might suppose that that power belongs to the Congress, but it’s not in the Constitution. In Philadelphia in 1797, moreover, a proposal was made to grant Congress the power to make peace, but it was rejected. Let the current congress stew on that point.”
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From an editorial of The New York Sun on July 21, 2021:
It’s nice to see Congress starting to think about reclaiming the foreign policy powers granted to it in the Constitution. That’s the point of a new bill just introduced by a Socialist, Bernie Sanders, a Democrat, Chris Murphy, and a Republican, Mike Lee, one of the Senate’s most distinguished constitutionalists. It’s an effort by Congress to claw back powers from the presidents.
These words of welcome might seem out-of-sync, given that in recent decades the right-of-center faction in America has been the one more inclined to credit the constitutional prerogatives of the President. We have generally been in favor of a strong presidency on the model of, say, Reagan. The longer we’re on this beat, though, the more troubled we are by the lack of commitment Congress has shown to the wars of our generation.
War powers emerged as an issue after Vietnam, when our legislature passed the War Powers Act of 1973. It was designed to circumscribe the president’s ability to launch and continue a war absent a buy-in by Congress. That measure was passed by a Democratic congress over a number of Republican objections. It was vetoed by, in President Nixon, an arch Republican. The veto was overridden in a bipartisan vote in the 93rd congress.
That turned out to be a prelude to the betrayal of Free Vietnam, for whom Congress restricted or ended military and other aid in a series of votes that, in early 1975, doomed Indochina to the long night of communism. The horrifying sequel to us is that, in the years since, Congress tired of standing with two other beleaguered people — Iraqis and Afghans — in whose defense, and our own, we’d gone to war. That shame hangs over the current congress.
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Hence the logic of addressing this whole issue. The House has already passed a bill to repeal a number of the authorizations to use military force that are still in effect. Proponents of repeal argue that the two authorizations on which these wars are being fought have been on the books for a generation. In the case of the 9/11, the authorization to use military force uses 60 words to greenlight war against almost any nations and organizations implicated in 9/11.
We’ve been against repeal of these authorizations, given that our enemies are still in the field and operating against us in both theaters (and elsewhere around the globe). There’s a chance that even President Biden would oppose repealing those authorizations — or ignoring them. Yet it’s unclear. It could yet fall to Republicans, Politico reports, to vouchsafe Mr. Biden’s ability to act on his Article II powers alone.
Using the Article II powers alone would be less urgent, in our view, when we are the initiator of a war. Mark, though, that we can be attacked out of the blue, as we learned in 1941 and 2001, when war was suddenly launched against us. In 1941, Congress carefully marked that it was declaring a state of war that had already been thrust upon us. We ourselves, in any event, are concerned not only with recklessly getting into wars but also with recklessly getting out of them.
Which leads us to suggest that as this bill is debated Congress take a look at the issue from the other end of the telescope — the question of who has the power to make peace. One might suppose that that power belongs to the Congress, but it’s not in the Constitution. In Philadelphia in 1797, moreover, a proposal was made to grant Congress the power to make peace, but it was rejected. Let the current congress stew on that point.
Our own view — which we’ve several times aired in these columns — is that the power to make peace resides with our enemies. Once we enter a war, it is, by our lights, the obligation of Congress to stay in it until the enemy capitulates. Hence the premium we’re inclined to place on getting a proper war declaration when we go in. So that when we do fight, we are committed, heart and soul, as a nation, to seeing it through.
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Remember, the Constitution states quite clearly:
[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . . -Article I, Section 8, Clause 11 US Constitution
Article posted with permission from Sons of Liberty Media