Sunday, March 20, 2011

What The Constitution Says

The other day I pontificated about the Bamster groveling at the UN for permission to act as Commander-in-Chief. I noted that the title confers upon the President the position of sole authority to determine when, where and how the US military is employed as an instrument of national policy.

One reader with the catchy nom de plume of  ""  wrote:
Ed, you say, "That's a catchy title, but the essence is that you are the sole determinant of what the US military will or will not do."

The sole determinant? Strange, I thought the Constitution mentioned something about the Congress having to approve, bless, nod, wink, or something along those lines before we could engage in military action (what some might call "war" when you're killing foreigners with your military).

Despite the suspicion that PYB is probably not a policy hawk, let's consider his comment. Like so many Americans he brings up the Constitution without apparently having really given it a lot of consideration. I've been unable to find any phrasing regarding winking, blinking, blessing or nodding by Congress as prerequisite to military employment nor do I encounter a definition of "war" as killing foreigners with your military.

What is he referring to?

It could be that the Congress has the authority to "raise an army." That you might recall was a sticky point about the Articles of Confederation which manifested the reluctance of the states to cede their independent militias to a national government. It give Congress a budgetary power to define the US military. But that isn't really a determinant of who, when or where that military will be employed.

The Constitution also gives Congress the authority to "declare war" which is certainly linked to the President's C-in-C responsibility. The only problem there is that the last time we declared a war was 1941. We have quite obviously engaged in many wars since then. So, that doesn't seem to be a stumbling block anymore. In fact, you could make a very strong case that the threat of modern war makes Congressional action, debate, posturing and bloviating totally  impractical before forging a response. We will never again see a declaration of war prior to significant military action.

Does Congress have to approve of a C-in-C employing the military?

Well, yes. They will have to authorize the funds at some point. Does that need to be done before the action? Not if you have a trained and equipped force in being, which we do.

Is that funding threat a constraint? Hardly! What politician in his right mind (that leaves out Dennis Kucinich and Sheila Jackson-Lee) would stand before the voters on a platform of having abandoned America's fighting forces in harm's way without a supply of beans and bullets?

So, Congress doesn't have a vote in the employment of the US military. At some point they offer a check/balance, but it isn't in advance and it isn't a very powerful one. I stand by my contention that a President doesn't have to beg, whine, plead, or petition the United Nations prior to taking action with the military in furtherance of American policy goals.


jjet said...

"We have quite obviously engaged in many wars since then. So, that doesn't seem to be a stumbling block anymore. In fact, you could make a very strong case that the threat of modern war makes Congressional action, debate, posturing and bloviating totally impractical before forging a response. We will never again see a declaration of war prior to significant military action."

Well thank goodness that ol' pesky Constitution thingie isn't getting in the way of Empire building any more.

MagiK said...

jjet that is a silly snide comment devoid of any useful intelligence on the conversation.

Congress Declaring war has never been a preventive article to keep the Commander in Chief from deploying forces, and utilizing said forces. Why dont you try to actually come up with a decent argument against the "Commander in Chief" being the Absolute top of the Chain of Command for the Military. Clinton didnt ask permission to bomb those Aspirin factories, and Carter didnt ask for permission to attempt to send forces into Iran. Going into a foreign country and utilizing the Nations Combat resources is the perview of the CinC. Just because a war is not declared, does not mean it is not a war.

Anonymous said...

It would interesting if this President was the driving factor for a ruling on the Constitutionality of the War Powers Resolution.

Ed Rasimus said...

The War Powers Act may be one of the most symbolic and least meaningful pieces of power-grabbing ever attempted by Congress. It recognizes that the C-in-C can employ military force and simply requires that he report to congress within 60 days on why. They then get to do their posturing and threats to withhold funds, which of course they will never do if they wish to get re-elected.

The "Empire building" issue is one that always seems to escape me when it comes to accusations. We have won (and arguably lost) wars over the last 100 years and incredibly never seem to retain the "Empire" after our conquest. We rebuild, prop up and then depart. Along the way we divest of places like Panama, the Philippines, Okinawa, Cuba, occupied Japan, Berlin, etc. etc. Man, we are sure incompetent when trying to run the Empire building thing. We do so much better with Amtrak and Postal Service.

juvat said...

Don't wrestle with the pigs, you only get muddy and the pigs like it.
Besides, arguing a point using logic requires the other side possess logical functions in their mental ability and are willing to accept the possibility their argument is wrong. Neither seems likely in this case.

Dweezil Dwarftosser said...

While there's no question that the CINC has the right (and in today's few-minute flight time for a sea-launched ICBM, the duty) to employ military force as required - the power to declare war remains the sole province of the Congress.

And since the Constitution requires no particular wording for that declaration . . . the last time the US declared war was 13 Sep 2001, (by joint action of the House and Senate, authorizing the president to do whatever is necessary against the terrorists who planned and executed the attack against us, along with any nation which aided or harbored them).

Last time I looked, that's still in force.

Tam said...


War Powers Act is Roosevelt in '41. You're thinking of the War Powers Resolution.

While I personally agree that its constitutionality is questionable, I was unaware that the executive branch was allowed to determine which laws it considered "silly". (Not to say that that hasn't gone on at least since Jackson's famous and apocryphal rebuttal to Marshall.)

bongobear said...

Eventually the people of this country are going to have to insist that our elected officials follow the constitution or we may as well throw the document in the trash. By definition what we are currently doing in Lybia is an act of war, declared or not. Article I, section 8 gives the authority to declare war to the congress.
Is it 'logically' in our best interest to intervene in the Lybian conflict? I don't know if I believe it is or not, but I do know I have a right to my opinion...just as jjet has. Smart ass comments and snide remarks won't change that.

Ed Rasimus said...

Tam, there was a War Powers Act in 1941, but the joint resolution in Congress in 1973 triggered by a desire to restrict future military excursions (Pentagon Papers outcome?) once passed by both chambers became a War Powers Act as well.

The declaration of war by the legislature is a formal act, but the employment of military force is solely the purview of the Executive. The control of that power is through the purse not through the formal statement.

It is not subjugating the Constitution when an authorized power (to declare war) is not used. The Congress can declare war or they can direct the executive to cease/desist then enforce through their power of the purse. No one is ignoring the Constitution. Congressional inaction is not a loss of power.

Atlanta Roofing said...

United States confronted Libya over the weekend, the public finances faces rising military cost, thus impacting current and future budget plans. Already, according to National Journal, the price tag on combating against Libya on the first day of strike tallied around $112 million to $168 million; this outlay largely came from more than 100 tomahawks being launched.

bongobear said...

I wonder if this is a case of too old an airplane?

Atlanta Roofing said...

Those of you who want Congress to declare war; you shouldn't be asking yourselves whether the president's authority should be circumscribed by Congress' power to declare war... The question you should be asking yourselves is whether you want the president to have a free hand to commit troops and make us responsible for Libya for generations to come--by Congress declaring war. Congress voting to give the president a ton of more power? Doesn't circumscribe the power of the president.

PickYourBattles.Net said...

Ed, sorry I was late to this party. Fatty drivers are slower as you know. Here is what the Constitution states on the issue of the authority to commit to war.

Article II states that, "The President shall 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;"

That's all it says about the POTUS and war. He is the CinC. He commands. To what end does he command, the Constitution provides further illumination.

In Article I it gives Congress the power to "declare war" and also gives Congress the impressive power,

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The War Powers Resolution is Congress exercising this power and it makes it clear what "war" or "hostilities" are and why this law passed by Congress is Constitutional:

"It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations."

"Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof."

"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."

"In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;"

"Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress

(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,

(2) has extended by law such sixty-day period, or

(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."

PickYourBattles.Net said...

I think it's a very poor practice to take simple phrases from the Constitution and extrapolate and fill in an argument that doesn't actually exist in the text.

For example, the argument that the mere title "commander in chief" vests the title holder with the ability to ignore the rest of the text. To think that merely that title alone allows for the dismissal of Article 1's provision of war declaration power (and the power to make laws guiding the execution of ALL government powers) is strange to me. If that were the case, then could the CinC ignore other sections of the Constitution that deal with troops? Could the POTUS then quarter troops in our homes in peace time, since he's the sole determiner of where our military forces go and what they do?

Extrapolating and adding to a three word phrase like "commander in chief" is not a Constitutional argument. Just like the Supreme Court Justice White in "White v. Texas" did when he ruled that state secession was unconstitutional based on the Constitution's preamble phrase, "more perfect union." From that three word phrase he extrapolates what is clearly not there, in order to cede power to the federal government that is clearly reserved to the states/people.

Regardless, the more substantive sections of the Constitution make it clear that the POTUS is absolutely not a king who can direct forces wherever he wants without the consent of the Congress and the people they represent.