The Political Spectrum

With all the talk about the Miers nomination and whether she’s really a conservative, pro-life, or anti-Roe I thought I would take this opportunity to point out, yet again, that there are far more pressing constitutional issues on the horizon and that we all must look at those to determine whether a nominee, regardless of political persuasion, is qualified and deserving of our support.

While there are so many interesting constitutional issues that I could raise, my selection today comes from a rather unusual source. Namely, yesterday’s Senate Foreign Relations Committee hearing in which Secretary of State Condoleezza Rice testified regarding Iraq in U.S. Foreign Policy. Interestingly enough, Senator Lincoln Chafee (R-RI) (I know, I know Chafee’s got famed RINO status) questioned Secretary Rice on an important question regarding institutional prerogatives. (Note: I’ve been trying to find a transcript of these hearings this morning, but to no avail, so at the risk of misinterpreting things, I’m going to rely on my memory of what was said. Apologies in advance if I get things slightly wrong). Specifically, Sen. Chafee was interested in the Iraq War Authorization passed by Congress a couple of years ago. Chafee’s point was generally this: the Congressional authorization gave consent to utilize American military forces against the Taliban in Afghanistan, Al Quada generally, and Iraq. It does not, at least on its face, authorize the use of force against any other persons or countries (i.e., Iran or Syria). Thus, Sen. Chafee asked, quite astutely, that if there were intentions of using military forces against either of those countries, would not the President be required to return to Congress for another resolution authorizing the use of force? And how did Secretary Rice respond to this excellent question; she stated that she was not, at this time, going to “circumvent the President’s war powers.” Now there is far more to this exchange that I can’t or shouldn’t attempt to paraphrase. Nevertheless, allow me to say it was my impression that at least Secretary Rice did not really think that returning to Congress would have been necessary, but in all fairness she probably wasn’t sure, so she talked around the issue without really answering the question.

Of course this exchange raises the issue of War Powers, who has them, who needs them, and who has the legal and constitutional authority to send American troops into harms way. Since in one sense “were all originalists now” (bonus points for anyone who can guess where I stole this from) I’ll start from the text of the Constitution and work from there. Article I, Sec. 8, cl. 11 states that Congress shall have the power “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Article I, Sec. 8 also grants Congress with the power to maintain and Army and a Navy, and authorizes them to “make rules for the government and regulation of the land and naval forces.” Seems pretty clear, you want to wage war you have to go to Congress. So it was done it WWI, WWII, but not again until Gulf War I and this most recent war in Afghanistan, Iraq, and against Terrorism. Famously, Korea and Vietnam, as well as other uses of military force were undeclared wars, or “police actions” as some have termed them.

However, not to be outdone in the textualism game, the President, via Article II, can claim to be “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States,” which some have argued gives him the inherent power to use those troops to protect and defend the interests of the United States both at home and abroad.

Like so many issues, the Constitution doesn’t really answer the question clearly. If the President wants to attach Iran or Syria does he need Congress to act or is there inherent authority in Article II? In 1973, Congress passed a statute known as the “War Powers Resolution,” which attempted to answer some of these thorny questions. The Resolution states in part that “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” See War Powers Resolution, Pub. L. 93-148 § 2(c) (1973). The War Powers Resolution, however, is not without its constitutional critics, one of which is Philip Bobbitt who has argued that:

The power to make war is not an enumerated power" and the notion that to
"declare" war is to ‘commence’ war is a ‘contemporary textual preconception’;
the Framers of the Constitution believed that statutory authorization was the
route by which the United States would be committed to war, and that
‘declaration’ was only meant for total wars, as shown by the history of the
French Naval War (1798–1800); in general, constitutional powers are not so much
separated as ‘linked and sequenced;’ Congress's control over the armed forces is
"structured" by appropriation, while the president commands; thus the act of
declaring war should not be fetishized. See Phillip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 Mich. L. Rev. 1364, 1375-1400 (1994).

At the end of the day, I’ll be the first to admit that there appears to be no concrete answer to the question Chafee asked. In my opinion, I don’t buy Bobbitt’s argument that the framers understood declaration of war to mean only “total war,” but rather think that that they divided the power between the braches to avoid hasty, unilateral decisions that would commit American resources in ways that were not necessarily in the long term interests of the nation. Recall that the framers were arguably isolationists and likely wouldn’t have wanted an active military spread out around the globe. Hence, they gave Congress, the far more isolationist branch, the stronger hand the process of declaring and committing resources to war.

Regardless of which side of the debate you come down on, it is issues like these, and not, in my opinion, abortion that should be the focal point of any nomination to the Supreme Court. If ever there was a role that we can all agree the framers intended the Court to have it is to settle disputes of authority between the other branches of government. Here we have a classic Congress v. President battle and the Court needs to have the ability and the Justices that command respect to step in and decide the matter in a way that is worthy of respect and will be adhered to by both sides win or lose.