These limitations are clearly laid out in the description of the powers of the presidency found in Federalist Paper 69, authored by Alexander Hamilton. After listing presidential powers, Hamilton states,
In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions…. Second. The President is to be the commander-in-chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more that the supreme command and direction of the military and naval forces, as the first general and admiral of the Confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature. [2]
Clearly, according to one of the chief drafters of the Constitution, the president’s control and use of the military is limited and subject to congressional approval; though the president has greater and more independent powers if the nation is invaded. This explanation clearly states that the president only has control of the army as it is called into action by an act of Congress and that the president’s function as commander-in-chief is merely that of chief general under Congress’ authority. This is not the role the president maintains today.
But warfare has been revolutionized since the late 1700s. Terrorists attack civilians bombing busses and subways and hijacking planes, rouge nations and terrorist organizations threaten nuclear war that could obliterate the nation within seconds, and attacks could occur within hours and days rather than weeks or months. The rapidity with which the nation could be attacked has increased perhaps beyond the imaginations of the founding fathers, one of whom argued “Our detached and distant situation invites and enables us to pursue a different course [than the manifold wars and entangling alliances of Europe].” The U.S. is neither so detached nor so distant today.
Thus, throughout U.S. history, Congress and the Supreme Court have turned blind or approving eyes to acquisitions of control over the military and its actions by the president. These acquisitions were seen as necessary to allow the president to adequately defend the country particularly with the growth and spread of communism. The Korean and Vietnam wars were both engaged in without a Congressional declaration of war and without congressional approval (though that is not to say that Congress disapproved). The extent of these wars led to a large increase in executive power and a substantial decrease in congressional power limiting the president’s actions. These wars were not engaged in to directly defend the U.S. against an invading enemy; there were used as a method of attacking the Soviet Union which was viewed as our enemy both ideologically and politically. Nevertheless, there was no direct action making either Korea or Vietnam direct threats to U.S. security. Congress balked at this abuse of presidential prerogative and in 1973 passed the War Powers Resolution; it was vetoed by President Nixon, but his veto was overturned within two weeks by both houses of Congress.
The War Powers Resolution of 1973, 50 U.S.C. 1541-1548, begins by stating that its purpose is 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.[3]
This act holds to the founding fathers’ intent that president use the military only when war has been declared, when he has been authorized by Congress, or when there is a national emergency such as an attack. Congress further grasps its reigns on the military by declaring that, anytime the president newly introduces troops into hostilities or into foreign territory and even when he merely substantially increases the numbers of troops present in a foreign country, he must notify Congress within 48 hours and continue notifying at least once every six months. Additionally, the president may only engage in such action for 60 days without gaining a declaration of war or congressional approval; the president may also continue should Congress be unable to meet because of an attack on the U.S. Congress also declared that it has the power to order the president to withdraw troops from foreign countries at any time. The act closes once again affirming the founding fathers’ intent by arguing that this act does not change the constitutional standing of either Congress or the president.
President Obama has clearly decided to ignore these constitutional limitations. In a letter to Congress, he claims that there are no ground troops engaged in Libya and, therefore, the War Powers Resolution does not apply. He does admit, however, that “United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime's air defense systems, command and control structures, and other capabilities of Qadhafi's armed forces used to attack civilians and civilian populated areas.”[4] His reading of the War Powers Resolution is simply incorrect as he is required to gain the consent of Congress anytime the U.S. military is introduced “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.”[5] The two descriptions of action, one from the act and the other from the president, do not match. Even more disturbing is President Obama’s consistent citing of U.N. resolutions as justification for his actions; he mentions them six times and also refers to the determination of the international community “that all attacks against civilians had to stop.”[6] The president’s authority to use the military comes from Congress, not the U.N. President Obama would be wise to realize this.
While one can at least be glad that President Obama is not using the military as George III did, such constitutional abuses cannot be allowed to proceed. Congress ought to challenge the President both on his interpretation of the War Powers Resolution and on his misinterpretation of his constitutional authority over the use of the military. Perhaps, rather than a resolution, a constitutional amendment is needed to clarify the founding fathers meaning, restrain the president’s abuse of his powers as commander-in-chief, and prevent the Supreme Court from turning a further blind eye to these unconstitutional actions.
No comments:
Post a Comment