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New War Powers Plan Skirts the Constitution’s Clear Wording

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John F. McManus
JBS
Friday, July 11, 2008

Two former secretaries of state spent the past year concocting a new plan to give the president a role in war-making that the Constitution does not allow.

As the Vietnam War was winding down, Congress passed the 1973 War Powers Act over President Nixon’s veto. This highly questionable measure set guidelines for any president’s future use of the nation’s armed forces in the absence of a declaration of war by Congress. In effect, it gave the president power never awarded by the Constitution. Never tested by the Supreme Court, the Act has sat unused, is criticized from all sides, and is today considered null.

For the past year, former secretaries of state James A. Baker III and Warren Christopher have chaired the bipartisan National War Powers Commission seeking to replace the 1973 Act. On July 8, they unveiled their proposal while claiming that the Constitution “ambiguously divides war powers” between the president and Congress.

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No it does not! Congress is given sole authority to send the nation to war; the role of the president is to guide the military once war has begun. There is no division of the war-making authority; all of it resides in Congress. Baker and Christopher want Congress to enact a new “War Powers Consultation Act” that will establish rules for “consultation” between the president and Congress before sending the nation into war.

As might be expected of two prominent leaders of the Council on Foreign Relations, an overly influential “think tank” that consistently favors internationalism and legal innovation over national sovereignty and the Constitution, these two sidestepped the Constitution’s clear delegation of power to Congress alone to “declare war.” A president may request such a declaration as Franklin Roosevelt did immediately after the attack at Pearl Harbor. But no president has a formal role in making such a momentous decision. Once war is declared, he is the commander-in-chief of the armed forces, and that’s grave responsibility enough.

In October 2002, six months before the invasion of Iraq and the start of the ongoing struggle, Congressman Ron Paul offered a motion to declare war against Iraq during a session of the House International Relations Committee. He announced that he intended to vote against his motion because he didn’t believe such a war was either necessary or desirable. He was promptly told by the committee’s chairman (the late Henry Hyde) that his reference to the Constitution’s sole grant of war-making authority to Congress was “an anachronism,” no longer worthy of consideration. Credit Mr. Hyde with accurately and flippantly reflecting the prevailing view.

  • A d v e r t i s e m e n t

There has been no congressional declaration of war since 1941. No declaration of war sent troops to fight and die in Korea, Vietnam, the Balkans, the first Iraq War, and the current wars in Iraq and Afghanistan. To launch each of these undeclared conflicts, presidents have cited weaselly-worded congressional resolutions and then relied on “authorization” supplied by the UN Security Council to proceed. How far we have strayed from the Constitution!

It is hardly surprising that, in the absence of such a clearly stated requirement, none of the wars since WW II has been won. A declaration of war establishes a goal for the forces it sends into battle. Without one, the goal can be altered. The current Iraq War has seen its goal change from barring Iraqi use of weapons of mass destruction, to removing Saddam Hussein from power, to nation building, to warring against terrorism, and now to spreading “democracy.”

All should consider the cogent warning given by Abraham Lincoln more than a decade before he became president. He wrote in a letter to a law colleague: “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 so to frame the Constitution that no one man should hold the power of bringing the oppression upon us.”

The proposal now offered by Baker and Christopher ignores the clear wording of the Constitution. Congress alone was given power to declare war. These two men and their commission want imperial power given to the office of president, the kind Abraham Lincoln and the framers of the Constitution opposed. The office of president was created mainly to execute laws passed by Congress, not to make law and certainly not to make war.

When given the chance to do so, Congress should reject the Baker-Christopher War Powers Consultation Act. No more war without the Constitution’s requirement for a formal declaration by Congress!

This article was posted: Friday, July 11, 2008 at 4:45 am





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