By John H. Haas
Best Defense guest respondent
Tom recently confessed to being bothered by U.N.
Ambassador Samantha Power's speech on Syria of September 6, in which she said,
"The American people elect leaders to exercise judgment, and there have
been times in our history when presidents have taken hard decisions to
use force that were not initially popular, because they believed our interests demanded
Tom responded, "Power's stance is
profoundly undemocratic. The American system is founded on the belief that the
people do indeed know what is best for them. So I conclude that Power's
argument is itself yet another reason not to intervene in Syria -- if we have
to erode our system to do it, it certainly is not worth it."
Tom's discomfort with what has been called
"the imperial presidency" is understandable, and is widely
shared by smart, thoughtful, careful people on both the left and the
right. It has an intuitive appeal to anyone who's instincts have been
shaped by democratic principles. If our republic is just that, a res publica, or "public
thing," then shouldn't the public have a say in what its "thing"
does in the world? And what could be more morally momentous and
practically consequential than a violent attack on another nation that will extinguish
lives, and may suck the republic into a wider war?
In our current debate over an attack on Syria,
Republicans in particular have been forthright that the Constitution gives the
president no authority to do any such thing without congressional approval. California Republican Rep. Tom McClintock: "If a president on his
authority and in direct contravention of the Constitution plunges our nation
into war, if that's not impeachable, what is? The Constitution does not
require consultation. It does not require informing Congress. It requires
Congress' specific act to authorize a war." Republican Rep. Walter Jones
of North Carolina: "... any president who bypasses the Congress to bomb
another country without provocation, and this is actually in the Constitution,
then they should be impeached."
For his part, President Obama agrees: "The president does not have power under the Constitution to unilaterally
authorize a military attack in a situation that does not involve stopping an
actual or imminent threat to the nation." Well, agreed. That
was in 2007. Now? "I believe I have the authority to carry out this military
action without specific congressional authorization..."
To complicate matters further, Republican Rep.
Peter King of New York agrees with the Obama of 2013, and thinks he's actually wrong to seek congressional
authorization: "President Obama is abdicating his responsibility as
commander-in-chief and undermining the authority of future presidents. The
President does not need Congress to authorize a strike on Syria."
Well. We would seem to have something of a pickle here, as Uncle Billy might say. Who's
right? The Obama of 2007, or the Obama of 2013? Obama's Republican
critics, or Obama's other Republican critics? Samantha Power,or Tom
It seems to me that we have at least three
avenues of investigation that we need to consider as we search for an
answer. First, there is what the framers put in the Constitution
itself. There are also the framers' intentions, as revealed by what they
wrote elsewhere, and by what they did when they held office. And then
there's the subsequent historical record -- the body of precedent that
constitutes America's "unwritten constitution."
Let's start with those most basic of facts, the
numbers. A few years ago, Yale historian Harry Stout added up all of America's military
and found 280 foreign interventions, along with 29 Indian wars. We'll
leave the latter aside, and we'll also admit that many of those
"operations" don't look a lot like "wars" from a
chronological distance (but then, neither would Obama's proposed "limited
attack" on Syria in a few years -- unless you were on the receiving end).
Of these, five have been formally declared wars,
and on another 13 occasions Congress has issued an expressed authorization of
military force. John Yoo counted 125 occasions of presidents ordering
military operations without congressional authorization.
What do those numbers tell us? It would be
hard to argue that a formal declaration of war is required. From the
earliest years of the republic, presidents have gone to war without a
declaration. Founding fathers John Adams (the Quasi War) and Thomas Jefferson
(the Barbary Wars) did, representing the two political parties then in
existence (the Federalists and the Democratical-Republicans). Congress,
with many of the signers of the Constitution on board, approved of these wars,
and no move to impeach either of them was made. If a formal declaration
of war is required by the Constitution, these gentlemen would have known about
it. Most scholars agree that the Constitution does not specify what
counts as a "declaration of war," and that authorizations of force
are legitimate equivalents.
We also might note that a formal declaration of
war is no guarantee that later generations will agree that the war was wise, or
just. Of our five declared wars -- the War of 1812, the Mexican War, the
Spanish War, World War I, and World War II -- only the last escapes serious
moral censure from mainstream critics. "I do not think there was ever a more wicked war than that waged by the
United States on Mexico," said Ulysses S. Grant -- and he was a veteran of that
Similarly, regrets trail in the wake of many of
our congressionally authorized wars. We might wonder, for example, about
the necessity of Buchanan's attack on Paraguay in 1859, or Wilson's occupation
of Veracuz in 1914, or his wading into the Russian civil war in 1918, or the
wisdom of the Tonkin Gulf Resolution of 1964 that gave us Vietnam. Reagan's disastrous, tragic, and pointless incursion into Lebanon in 1983 was
authorized by Congress with healthy majorities. Most recently, George W.
Bush received overwhelming congressional support for Operation Iraqi Freedom.
At the same time, several congressionally
unauthorized attacks are relatively uncontroversial -- the Korean War ordered
by Truman, Reagan's incursion into Grenada and his attack on Libya, the first
Bush's invasion of Panama, and Clinton's 78-day war in Kosovo -- at least when
judged by the standard of popular approval. Indeed, one of them is among
the most admired examples of presidential leadership in recent history: the Cuban missile crisis of 1962. Facing no actual or imminent attack,
President Kennedy ordered a partial blockade (an act of war) against Cuba,
initiating the most dangerous confrontation between major powers in world
history. In the judgment of one historian, this confrontation over the
Soviet missiles based in Cuba was essentially a contest for "prestige." It is unclear
whether, had Congress or the American people been consulted, they would have
agreed that the mere presence of nuclear missiles 90 miles off our coast was
worth risking nuclear holocaust -- especially if it had been explained that the
Soviets had been deploying
submarines armed with nuclear missiles since 1955, arguably rendering the
Cuban question tactically moot.
We need to beware of reading too much into these
events. Neither the fact that a majority of our nation's military
operations were initiated and fought without either formal declaration or
congressional authorization, or that many of those that were declared or
authorized were mistakes, or that some that weren't authorized seem to most
Americans successes, neatly decides the question. The Constitution and
what it says, as well as the founders' intentions, remains critical. However, we do need to acknowledge that America -- not just presidents -- has
behaved as if neither declaration nor authorization was necessary on numerous
occasions. In no instance has there been a congressional or popular
outcry that jeopardized any president with impeachment for his actions. We seem, as a nation, to have made our peace with this arrangement. Whether we should have is another question.
Does the Constitution mandate that we withdraw our
approval of this arrangement and institute a requirement that presidents ask
for and receive congressional authorization before going to war? Even the
War Powers Resolution of 1973 -- passed by the congress most hostile to the
imperial presidency in our history -- doesn't say that. It only requires
that presidents get congressional authorization or terminate the operation
within 60 (or 90 -- depending on conditions) days. (No president has ever
admitted the resolution's authority, and no president has ever been impeached
for defying it--as, arguably, Clinton and Obama have done, in Kosovo and Libya
respectively.) It is significant that even the 93rd Congress did not
appeal to the Constitution's enumerated power to declare war, but to the "necessary and proper" clause, as its
justification for limiting the president's power to wage war.
Moreover, Congress did not move to impeach
President Nixon for continuing the Vietnam War even after it had repealed the
Tonkin Gulf Resolution in 1971.
Reps. McClintock and Jones, then, are surely
mistaken. And it appears the Obama of 2007 was also wrong. A
president may indeed "unilaterally authorize a military
attack." If, in the aftermath, it were discovered that there was no
threat to the nation -- and especially if it was discovered that the president
knew there was no threat -- that might constitute very good grounds for
impeachment. Yet -- again, arguably -- there was no clear
"threat" to the United States, as threats are conventionally
understood, that necessitated the wars in Korea, Vietnam, Panama, Kosovo, or
We swim in deep waters here. The War
Powers Resolution explicitly denies that merely funding a war constitutes de facto
authorization. Many would
argue -- against the case I've made -- that failing to even try to impeach a
president similarly should not be interpreted as anything like approval. There are many reasons we might not want to impeach a president, even if he is
guilty of a minor misdemeanor like starting an unauthorized and unnecessary and
But what about Tom's contention? The finer
points of constitutional law aside for a moment, does a president launching a
unilateral attack when the public's disapproval of that attack is known violate
the spirit underlying the Constitution, if not its letter? Is it the case
that the "American system is founded on the belief that the people do
indeed know what is best for them"? Would such an attack "erode
our system," and so should not be ordered?
Many readers will recall the slogan of the late
1960s, "Power to the people!" Some might recall the slogan
evolving into a more comprehensive, "All power to the people!" While both the SDS, then, and the Tea Party, today, evidence an
affection for this sentiment, it is not one that the founders shared.
At the end of the day, of course, the people are
sovereign and have the power to alter the republic in profound ways. Presidents and congressmen (and since 1913, senators) have to submit themselves
regularly to the will of the people as expressed in elections. In the
meantime, the Constitution grants them much freedom of action. If they
act in ways the people do not approve of, they can be tossed out. They
can be impeached. The people can alter the Constitution in any way they
see fit by amending it, thus restricting their powers. So, ultimately,
our system is grounded in the will of the people.
But that is not to say that it's grounded in the
belief that "the people ... know what is best for them." The
founders placed the selection of the president not directly into the hands of
the people, but into those of the electoral college. They denied the
people the power to directly elect senators, whose advice was required when a
president makes treaties and appoints ambassadors. The founders also
operated within a system that restricted the franchise much more tightly than
today, allowing only adult white males who met property requirements (and who
were, therefore, presumably educated and responsible) to vote. Theirs was
a hierarchical society, in which men were presumed to know what was best for
their wives and children, gentlemen were presumed to know what was best for the
commoners, and rulers knew more about what was "best" than the ruled.
But those weren't their only convictions. They were well aware, from history and experience, that even representative,
regularly accountable, impeachable rulers could go astray when it came to the
momentous issue of war. And so, in their sublime system of checks and
balances, they included an escape hatch from war, and brought it as close to
the people as they could.
The president, as commander in chief, has
immense power. They gave him the power -- "energy in the executive," Alexander Hamilton
called it -- to act swiftly to meet national emergencies. This they
believed was necessary, not because they were naive about executive power and
its potential abuses, but because they lived in a dangerous world. So
they maximized the president's power to meet military threats.
But the Constitution also balanced that
power. Among Congress's powers as enumerated in article I, Section eight,
is the requirement that "no Appropriation of Money" to raise and
support armies "shall be for a longer Term than two Years." Here is where the people get their veto. If the president -- even if he
has congressional authorization, even if he has a formal declaration of war -- cannot
convince the people that his military actions are justified, they can simply
vote out their current representatives and vote in new ones that will defund
his war. It is significant that they placed this power in the House,
where the people are most closely represented, and where elections are most
The founders believed that even propertied and
educated gentlemen might not understand enough about world affairs to be counted
on to immediately make the correct decision. So they gave that power to
the executive. But they also believed that if the case held water, it
should be possible to persuade the people of it over time.
Would they have the same confidence if they
could see our more broadly defined "people"? In his farewell
address, President Eisenhower warned
that only "an alert and knowledgeable citizenry" would be up to the
task of guiding our leaders as they navigated the dangerous shoals of the
post-World War II era. Do we have "an alert and knowledgeable
One of democracy's sincerest admirers, Alexis de
Tocqueville, confessed that, "As for me, I will have no difficulty in
saying: it is in the leadership of the foreign interests of society that democratic
governments seem to me decidedly inferior to others.... Foreign policy requires the
use of almost none of the qualities that belong to democracy and, on the contrary,
demands the development of nearly all those qualities that it
Tocqueville, of course, has no legal standing in
this debate. He wasn't even American. And we have more evidence
than anyone could want that our rulers -- presidents, senators, foreign policy
elites -- often do not in fact know what is "best," for the people or
the nation. Even so, we should be careful. Our leaders and the
elites that advise them are often mistaken, but that doesn't mean the people
will always be right.
Haas, Ph.D., teaches U.S. foreign relations, American history, and the
political geography of North Africa and the Middle East at Bethel College in Indiana, the
Harvard of Mishawaka.