In an op-ed in yesterday’s New York Times, former Secretaries of State James A. Baker and Warren Christopher advocate for a law, drafted by a commission they co-chaired, that Baker and Christopher believe would clarify the division of war powers between the president and the Congress.
As far as I can tell, their proposed law would basically ratify the current division and therefore reinforce the unofficial (and unconstitutional) repeal of the congressional power to declare war. To be more precise, Congress would still have the power to declare war but it would be fairly meaningless. Baker-Christopher would officially (and still unconstitutionally) grant the president the power to start a pre-emptive undeclared war and to keep it going indefinitely unless a two-thirds majority of each house disagreed.
I say a preemptive war, but that is really a euphemism for a war that the president starts on a claim, possibly a because-I-say-so claim, that the country he is attacking would otherwise attack us.
As the framers designed the war powers, if the United States is attacked or invaded, the president (as commander-in-chief) has the power to respond militarily, until Congress has a chance to consider a declaration of war (which, under the attacked or invaded scenario, methinks would have a good chance of passing).
And Congress has the power to declare a war whether the United States has been invaded or not.
The trouble is that the vast majority of U.S. wars started with NEITHER an invasion of the United States NOR a congressional declaration of war.
Abraham Lincoln, in an 1848 letter to his law partner, explained his view of the division of war powers in the U.S. Constitution thus:
“The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”
Lincoln was then in his one term as a congressman from Illinois. He was an outspoken opponent of President James K. Polk’s decision to start the Mexican-American War (although the war was very popular and added vastly to the territory of the United States).
In that case, there was a preexisting dispute between the United States and Mexico over the precise boundary between Mexico and the formerly Mexican territory of Texas (which had recently gained U.S. statehood). Because of the border dispute, both countries could claim that their soldiers were on their own soil.
The United States had been trying to buy, from Mexico, the territories of New Mexico and California, but Mexico wasn’t selling. In the war, the United States acquired those territories (and yes, I am open to the interpretation that the U.S. was motivated more by its desire for those new territories than by a desire to clarify the Mexican-Texican border).
Lincoln on pre-emptive wars
Anyway, President K. Polk authorized military action, without waiting for a congressional declaration. In the letter, Lincoln explains the dangers of a pre-emptive war:
“Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at his pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. [Herndon’s prior letter had argued that the president can invade a country to prevent an attack, and that the president can decide on his own whether such a threat exists.]
“If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, — ‘I see no probability of the British invading us’; but he will say to you, ‘Be silent: I see it, if you don’t.’ But your view destroys the whole matter, and places our President where kings have always stood. Write soon again.”
Y’just gotta love Lincoln’s way with words. You can read the full letter here.
Iraq war resolution
Anyway, I guess I haven’t mentioned the current preemptive war down in which the U.S. is currently bogged. To me, the Iraq case makes Lincoln look pretty smart (although you won’t find much argument about the Lincoln smart part).
The Iraq war is kind of a double mess on this war powers issue. By the time Pres. Bush invaded, Congress had passed, by pretty hefty margins in both houses, a resolution authorizing the use of military force in Iraq. It’s not unreasonable to argue that this resolution stands in place of the declaration of war. I’d be a little sympathetic to that argument, although you’d want to consider whether the Congress can constitutionally delegate its constitutional war-declaring power that way.
But it is also worth recalling (as far as I can tell, this is usually forgotten) that the Bush administration took the position that the congressional authorization was politically helpful but not legally necessary, a fairly blunt assertion that the president can attack anyone, anywhere, on no say-so other than his own. This is inconsistent (and I think Congressman Lincoln is with me on this) with the constitutional scheme. But that, so far as I can tell, was treated in irrelevant in 1846 and still is today.
What would happen if the next president offered to respect the Constitution on this point?