Mark My Words: The Myth of Presidential War Powers

As the debate continues to swirl around America’s “kinetic military action” in Libya and whether or not the Obama administration is in the right, I can’t help but feel an immense sense of futility when engaging in conversations concerning our military adventures abroad.

Anyone treating these actions as a new phenomenon has either a tenuous grasp on history or a dangerously short attention span. Nearly every president since World War II has engaged in these extra-curricular engagements to some degree and, true to form, the opposing party has denounced it as unconstitutional and misguided (until their guy is in power, of course).

Be it with the physical support of anti-government forces in Nicaragua under Bush Sr. or with direct military action in Somalia and Kosovo under Clinton, unilateral military engagement by the president is nothing new.

The problem with addressing the executive’s exclusive power over foreign policy is that the underlying premise is a legal fiction that is best described as a collective delusion.

Our republic was never founded on the premise that the Executive branch of government, much less the president, had exclusive control over foreign affairs. It was Congress that was explicitly given the power to raise armies and to declare war. The president was authorized to act as commander-in-chief during the course of a war, but not granted the power to start one at will. Even the president’s power to negotiate treaties was checked by the requirement of super-majority approval in Congress.

That all changed in 1936. In the case of United States v. Curtiss-Wright Export Corp., the Supreme Court of the United States declared that the president had “plenary” powers over foreign affairs that were not dependant upon congressional delegation or approval.

In other words, foreign affairs was the president’s game, regardless of constitutional ambiguity, and Congress didn’t get to play ball if the president didn’t want it to.

The problem? The case had never been a question of presidential power. Instead, it had been briefed and argued as a matter discussing whether the legislature could effectively transfer their enumerated powers to the executive.

This puzzling change of focus was surprisingly easy to explain. The author of the opinion, Justice George Sutherland, had written extensively on what he thought was the proper role of the president in foreign affairs during his time as a U.S. Senator. Unsurprisingly, his writing in Curtiss-Wright closely paralells an article he authored that argued for independent presidential power that could not be checked by the other branches.

Just like that, the personal views of a single British immigrant-turned-Supreme Court Justice became enshrined in our country’s legal doctrine in a way that has transformed our fundamental understanding of presidential power.

In 1973, Congress passed the War Powers Resolution, giving the president unilateral power to commit U.S. forces anywhere in the world, for any reason, for a period of up to 90 days. This act has been mired in controversy since passage and for good reason; the act effectively transferred Congress’ exclusive and enumerated power to declare war to the president, no questions asked. It was, and remains, an appallingly unconstitutional transfer of power that the executive has joyously abused to this day.

President Obama’s action in Libya is merely the latest exercise of presidential war powers that were invented in the 1930s and enshrined in the 1970s. Obama is not the first president, nor will he be the last, to send our young men and women into harm’s way without so much as informing Congress, much less asking their permission.

Unfortunately, few members of Congress are willing to be the first to try and reverse course on this unconstitutional status quo. The dangers of being labeled unpatriotic, as well as the convenience of having the ability to go to war at will when your man is in power, have kept our elected officials criticizing the President’s actions, but never doing anything about their constitutional legitimacy.

Nobody wants to give away their ace in the hole and, in our modern political environment, who can blame them? Well me, for starters.

What we seem to forget is that in the hyperbolic rhetoric being thrown around by our politicians hang the lives of men and women who have volunteered to serve and protect our country: 4,441 men and women have died in Iraq. Nearly 33,000 have been injured, many irreversibly so. 1,517 more lay dead in Afghanistan. How many more of our bravest are we willing to throw to the political winds?

No president, regardless of party, history, or politics, should have the unilateral and unchallengeable right to send Americans to their death. It is long overdue that our elected representatives stand up for American soldiers and return the power to declare war where the constitution put it, with the people, not one man.

Photo CreditWikimedia Commons

For those interested in the scholarship of war powers, please take the time to visit and read the work of life-long scholar and public servant Louis Fisher at www.loufisher.org.